ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-0375 & 13/0376
DATE: 2014 Dec 03
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RANDY VIJAY LALCHAN
Respondent
Maura Kehoe, for the Crown
Paul Genua, for the Respondent
HEARD: November 12, 2014 at Brockville
Belch, J.
DECISION ON APPLICATION TO RESTORE FUNDS
[1] When Randy Lalchan, Applicant, slammed on the brakes of his rental car, slowing its speed from 110 to 78 km/hr, it attracted the attention of two OPP officers who were patrolling Hwy 401 on January 26, 2013. When the vehicle was pulled over, the officers noticed the Applicant was the sole occupant. They could detect an odour of burnt marijuana and observed a half smoked marijuana cigarette in the ashtray. He advised the officers there was more marijuana in the vehicle and during their search, they found approximately 3 grams. Also, during this warrantless search, they discovered a gift wrapped box containing $100,000 in Canadian $100 bills in the trunk of the car.
[2] The Applicant was charged with possession under 30 grams, possession of property obtained by crime over $5000, trafficking in stolen property over $5000; and breach of probation. On January 30, 2013, a Justice of the Peace granted a detention order pursuant to section 490(1) CCC authorizing the detention of all items seized until the completion of all proceedings.
[3] At the time the money was seized, the Applicant offered conflicting explanations for the origin and ownership of the money. He was a professional gambler on his way to Toronto to gamble; the money represented winnings by his wife and/or his mother, and/or himself from the casino in Montréal. The officers contacted his mother by telephone and she advised she had remortgaged her house and some of this money could be traced to proceeds of the new mortgage. She added she often kept $40,000-$50,000 on hand in her house.
[4] After further investigation, the police concluded there were only modest casino winnings; nowhere near enough to account for the $100,000 in cash. No one claimed ownership of the money and the Applicant’s claim is based on possession.
THIS APPLICATION
[5] This application is, pursuant to section 462.34(4) of the Criminal Code, for an Order restoring $30,000 of the $100,000 seized by the police so the Applicant can retain counsel to represent him in the Superior Court of Justice.
[6] The Crown contends the money is offence-related property, detained by Order of detention pursuant to section 490(1) CCC and there is no provision for access to offence-related property for the payment of legal fees. The Crown relies upon the decision of Walters, J in R. v. Nikitczuk, 2009 29911 (ON SC), [2009] OJ No. 2438.
[7] Justice Trotter in R. v. Jackson OJ No. 179 follows the decision of Justice Walters stating, “given that the property in question has been found to be offence-related property, there is no basis upon which access to this property for these purposes of meeting his reasonable legal expenses [exists].”
[8] The Crown submits this court has no jurisdiction to restore funds for the purpose of meeting legal expenses.
[9] The funds being found in the trunk of a car rented by the Applicant is accepted by the court as an interest in the monies based on possession.
[10] Furthermore, based upon the Applicant’s affidavit, the court is aware the Applicant is unemployed, owes a student aid loan, rents his accommodation shared by his common-law spouse and their two children, and it is the income of the spouse which is used to meet their food, rent and clothing needs. The police investigation into casino winnings, bank accounts, filings with the Canada Revenue Agency, only bolsters the Applicant’s affidavit evidence. The Court is satisfied he has no means to retain counsel.
[11] The Applicant has not applied for legal aid, however, from the case authorities presented, it appears legal aid in the past has not always provided a legal aid certificate when cash is discovered in an Applicant’s possession. R. v. Murtaza, 2011 ONSC 7577, [2011] OJ No. 6034 at paragraph[30] references a legal aid letter in which it is stated, “confiscated money (is) considered an available asset.”
ANALYSIS AND CONCLUSION
[12] These charges date to January 26, 2013 and as of the date of this application a trial date has not been set. The Applicant has a lawyer willing to conduct a 10 day trial together with the necessary preparation and during the in camera portion of this application, I was satisfied the case was complex, was likely to take the estimated 10 days, involved Charter issues and the Applicant was not qualified to handle the complexity as a self- represented litigant. Not only were the time estimates of defence counsel reasonable, his hourly rates for preparation were similar to the legal aid tariff given his qualifications. While it would have been helpful to have an actual turn down by legal aid, cases cited have satisfied the court legal aid may not have been granted in view of the confiscated funds.
[13] We speak of the rights of an accused to a fair trial and to retain counsel of his or her choice within financial reason. My concern is present counsel will disappear absent funding and these charges, already in existence for nearly two years, will be delayed again when this matter is at assignment court, then the Applicant will request a further adjournment to retain new counsel, and perhaps later, and without counsel, to proceed self- represented.
[14] Terezakis v. Canada (Department of Justice) 2000 BCSC 80, [2000] BCJ No. 68 considered section 462.341 CCC in a case dealing with an application for the release of funds. The section was extended to address money or bank notes seized under the Criminal Code or the Controlled Drugs and Substances Act and which may be forfeitable. The court held characterization of the seized property or funds as “offence-related property” does not allow the Crown to prevent recourse to these provisions to release the property.
[15] The judge in that case wrote at paragraphs 8 and 9:
8 In my view, the situation at bar is almost completely analogous to that in Regina v. Li and Pong (1997), 1997 2058 (BC SC), 115 CCC (3d) 336 (BCSC). There, the Crown challenged the applicants' access to s. 363.34 on the grounds that the warrant under which the goods had been seized was a general warrant issued under s. 487 rather than a special warrant issued under s. 462.32. Romilly J. rejected the Crown challenge, holding that such a result would be patently unjust, would fail to recognize the "superordinate importance" of the applicants' right to counsel, and would be contrary to the rules of statutory interpretation calling for a fair, large and liberal interpretation of the Code. Further, he noted that as a matter of policy, allowing an accused a release of funds for reasonable legal expenses could not be said to be allowing an accused to profit from a crime.
9 In my view, Romilly J.'s reasoning in Li, supra, applies with equal force to the case at bar. The mere fact that the Crown has chosen, post-seizure, to characterize the funds in issue as "offence-related property" rather than the "proceeds of crime", ought not to circumvent the applicants' access to s. 362.34.
[16] Faced with conflicting authorities and with a view to avoid further delay, I apply the Terezakis decision, reject the Crown’s position and allow recourse to the seized money to retain counsel.
[17] I am satisfied if the Applicant is found guilty at trial the $100,000 discovered in the trunk of his rented vehicle will be forfeited to the Crown. To the extent some of the $100,000 is used for legal expenses, some of this money would seem to be placed beyond the reach of the Crown for forfeiture, however, the trial judge would still have the authority to impose a fine, payable by the accused, in the same amount used for legal fees. In that way the Crown has an opportunity to realize upon the full $100,000 found and the Applicant has an opportunity to hire counsel of his choosing.
[18] Accordingly, the sum of $25,000 is to be paid to the Applicant counsel’s account, in trust and no money is to be paid from the trust account without first delivering an account to the Applicant and to the Attorney General’s representative so that it might be taxed if they see fit and under no circumstances is the sum of $25,000 to be expanded upon. These monies are to cover fees, disbursements and HST, where applicable.
Belch, J.
Released: December 03, 2014
COURT FILE NO.: 13-0375 & 13/0376
DATE: 2014 Dec 03
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
RANDY VIJAY LALCHAN
Respondent
DECISION ON APPLICATION
TO RESTORE FUNDS
Belch, J.
Released: December 03, 2014