ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Breton, 2015 ONSC 1365
COURT FILE NO.: CR-10-0024 and CR-12-0024
DATE: 2015-03-04
B E T W E E N:
Her Majesty The Queen,
Vern Brewer, for the Applicant
Applicant
- and -
Marcel Donald Breton,
The Respondent represented himself
Respondent
HEARD: November 28, 2014,
at Thunder Bay, Ontario
Platana J.
Reasons On Application For Forfeiture
Overview
[1] A search warrant for a weapon was executed at Mr. Breton’s property on December 1, 2009. No weapon was found, however, during the search of the residence, the police seized 3.8 ounces of cocaine with a 69% level of purity; cannabis marijuana; 46 tablets of ecstasy; and 4 grams of cannabis resin. They also found concealed bundles of cash totalling approximately $15,000.00; a butterfly “flick” knife; and buried in a plastic container in the garage floor over 44,000 separate bills, bundled in packages primarily of twenty, fifty and some one hundred dollar bills, packaged in bundles of $5,000.00 or $10,000.00.
[2] Throughout the course of a search of his property, police seized .22 cal. ammunition. They also seized a number of items, as proceeds of crime.
[3] On July 25, 2014, Mr. Breton was convicted of 21 separate counts:
a) 3 counts of possession of an illegal substance for the purposes of trafficking, contrary to s. 5 of the Controlled Drug and Substances Act (“CDSA”);
b) Possession of an illegal substance contrary to s. 4 of the CDSA;
c) Possession of a prohibited weapon, specifically a butterfly knife, contrary to s. 91 of the Criminal Code;
d) 2 counts of possession of property obtained by crime over $5,000, contrary to s. 354(1)(a) of the Criminal Code;
e) 7 counts of possession of property obtained by crime under $5,000, contrary to s. 354(1)(a) of the Criminal Code; and,
f) 7 counts of laundering proceeds of crime, contrary to s. 462.31(1) of the Criminal Code.
[4] On November 28, 2014, I sentenced Mr. Breton to a period of incarceration of 9 ½ years for all of the charges.
[5] On August 29, 2014, Mr. Breton was served with a Notice of Application and Application Record seeking an order pursuant to s. 462.37(1) for the forfeiture of seized property, and a second Notice of Application and Application Record seeking an order for the return of seized property for which charges were not pursued.
[6] The specifics of the items for which forfeiture is requested are:
(1) $1,235,620.00 in Canadian Currency;
(2) $100.00 in United States Currency;
(3) $100.00 in counterfeit money;
(4) Thomas Skid Steer Bobcat Tractor and Backhoe attachment;
(5) Polaris 800cc snow machine - Vehicle Identification Number: 8N1PS8ES19C676497;
(6) John Deere Riding Lawn Mower – Model: LA145, Serial Number: XA145A062079;
(7) 1981 Chevrolet Camaro - Vehicle Identification Number: 1G1AP87L5BN118431, Ontario Licence Plate: 198 JWJ;
(8) 2009 Kawasaki Brute force (ATV) - Vehicle Identification Number: JKAVFDD189B514382, Engine Number: VF750DE024568;
(9) 2003 19’ Bayliner boat – HIN: 46E33413;
(10) Yamaha Outboard Motor – 40 hp – S/N: 63B00MJ30;
(11) 2008 GMC Sierra Pickup Truck - Vehicle Identification Number: 1GTEK19038Z283445 – Ontario Licence Plate: 778 7WR.
[7] In addition to Mr. Breton notice was served on:
• Adam Breton with respect to the John Deere Riding Lawn Mover;
• Bradley Pollock with respect to the 1981 Chevrolet Camaro;
• Elisa Leal with respect to the 1981 Chevrolet Camaro;
• Terrence Hascher with respect to the 2008 GMC Sierra pickup;
• André Breton with respect to the 2003 Bayliner boat;
• Mary Ann Dorot Gagnon with respect to the 2009 Kawasaki Brute Force ATV;
• Raymond Gardiner with respect to the Thomas Skid Steer Bobcat Tractor and backhoe attachment and the Polaris 800 cc snow machine - VIN: 8N1PS8ES19C676497
• A Yamaha Outboard Motor – 40 HP was also seized. No potential owner could be identified for notification purposes.
[8] The Crown also seeks a forfeiture order for digital scales and a triple beam balance scale, seized as offence-related property subject to forfeiture pursuant to s. 490.1(1).
[9] Further, the Crown seeks mandatory forfeiture of the flick knife, and .22 caliber ammunition pursuant to s. 491(1).
[10] The Crown relies on the factual findings made in my decision that, considering the totality of the circumstances, all of the items seized were obtained by Mr. Breton using proceeds of crime. I based that determination on the evidence that Mr. Breton had no source of income other than the sale of drugs for a period of several years prior to the date of the search and seizures.
[11] The Crown further relies on the affidavit of Sergeant William Quarrel of the Thunder Bay Police filed in the Application Record. That affidavit states that the Bobcat tractor and backhoe, the 2009 Polaris snow machine, the 2008 John Deere Riding Mower, the 1981 Chevrolet Camaro, the 2009 Kawasaki ATV, the 2003 Bayliner boat, the Yamaha outboard motor, and the 2008 GMC Sierra pickup truck, were all subjects of a Special Search Warrant and Management Order and Sealing Order issued March 9, 2010. The affidavit states that as at the date of the Application being filed, no application had been made to the Thunder Bay Police Force, or to any other police force, for the return of any of the seized property. The only applications for the return of any of the monies seized were made by Mr. Breton who claimed ownership of the money seized. Those applications were denied.
[12] The affidavit of Sergeant Quarrel sets out the details of investigations conducted with respect to identifying the ownership of the various items seized.
The Bobcat
[13] With respect to the Bobcat tractor, an original owner stated that he sold the Bobcat to an unknown male in 2006 or 2007. During the search, police found invoices relating to parts for the Bobcat purchased by Raymond Gardiner using his Treaty card. When found, the machine was in the locked portion of Mr. Breton’s garage and the identification plates had been removed.
[14] Mr. Gardiner was served with a copy of the Order authorizing the seizure of the machine and attended at the forfeiture hearing. Mr. Gardiner stated he was not aware his Treaty card had been used. He has not asserted any ownership claim or other interest in the machine since it was seized in March 2010. He stated that he runs a portable saw mill and was storing things at Mr. Breton’s.
[15] In cross-examination, he stated that he bought the Bobcat in 2006 from a farmer. He has no receipt, and no insurance on it. He stated that he paid $15,000.00, but never registered it in his name. He was not aware that the VIN plates had been removed. He stated that he left it to be stored on Mr. Breton’s property in 2006, and was not aware Breton was living there at the time. He said he left the keys with Mr. Breton who said he could use it if needed. He did not use it from 2006 through 2009.
[16] He stated that he got a call from police in 2010 that it had been seized but doesn’t recall if he was told that if he wanted to claim ownership, he should do so then.
The Polaris Snow Machine
[17] A search was conducted and the machine was not registered in any data banks available to the police. Subsequent investigation indicated that Raymond Gardiner stated that he stored things at Breton’s property, although he did not know what items were in his name. Further investigation showed that Marcel Breton was on record as the owner at a dealer where the machine was brought in for repairs.
[18] Mr. Gardiner also claimed an interest in this seized item. He has not asserted any ownership claim or interest in this item prior to this hearing. He stored it at Mr. Breton’s right after he bought it, as he had no place to store it. He left the keys for the machine with Mr. Breton. He said the ownership was also left with the machine. He said he had the money and wanted to accumulate equipment to use in business. Mr. Gardiner testified that he purchased the Polaris in 2007 or 2008. He had no receipt, and no insurance.
John Deere Riding Lawn Mower
[19] Police investigation determined that Adam Breton was the registered owner. It was purchased at a time when Adam was 12 years old, and on a weekend when Mr. Breton was exercising access. Records show it was paid for in cash and a residence address provided which was not where Adam lived. Adam’s mother, Elisa Leal, was served with a copy of the Order of Seizure. No one has applied for the return, nor expressed any interest in this lawn mower.
1981 Chevrolet Camaro
[20] Two documents relating to this vehicle were found during the search of Mr. Breton’s residence – a motor vehicle registration showing “unplated”, the owner as Bradley Pollock, dated as at December 30, 2005. The Application for Transfer portion of the permit was signed and dated December 30, with the particulars of the buyer blank. The second document was a sales receipt for $2,000.00 cash, with no particulars regarding the buyer.
[21] A search of Ontario licence plate on the vehicle showed the registered owner as Elisa Leal, who had been married to Mr. Breton. She stated the licence plate belonged to a vehicle formerly owned by her, but that she discarded that plate when she moved to Manitoba. She testified that she did not own this vehicle.
[22] Mr. Pollock and Ms. Leal were both served with the Order authorizing seizure. No one has claimed ownership or any interest in it.
2009 Kawasaki ATV
[23] Mary Ann Dorot Gagnon, Raymond Gardiner’s partner, was served with the Notice of Application for Forfeiture. She attended the hearing. Sergeant Quarrel’s affidavit states that a search of this vehicle’s engine number led police to determine that she was the registered owner. She told police investigating that she had a Polaris Hawkeye ATV that she owned and was stored at Mr. Breton's property. Police determined that the vehicle she identified was not on the property, but had been traded for this Kawasaki. She could provide no information for this machine. Police were later contracted by Mr. Gardiner who told them that Ms. Gagnon had made a mistake, and that it was the Kawasaki stored at Mr. Breton’s place. She testified that she bought the Kawasaki ATV with proceeds of a settlement, and that she stored it at Mr. Breton’s. In cross-examination, she said she had no receipt for the purchase and could not remember where or when she purchased it. She could not describe it. She had no insurance on it. She left the keys with Mr. Breton. She lived a long way from him.
2003 Bayliner Boat
[24] The affidavit material states that police investigation determined that this boat was registered in 2003 to André Breton, at an address in North Bay. There is no record of André Breton at that address, however, that was Mr. Breton’s mother’s address until 2008. Investigation determined that Marcel Breton has a brother named André Breton.
[25] André Breton was interviewed. He stated that he bought the boat in 2003 with money borrowed from his mother. He paid $9,300.00 cash. He says that he then brought it to Marcel’s place in 2004, and that it has been there ever since. When asked for his brother’s address, he then stated that a friend had brought the boat to Thunder Bay. He stated that the business where he purchased the boat no longer exists, and he refused to supply the name of the business.
[26] A copy of the Order authorizing the seizure of the boat was served on him, and also a copy of Notice of this application. He has not asserted any ownership or other interest in the boat.
Yamaha Outboard Motor
[27] Police investigation and search of serial number records both in the Yamaha data base in Canada and the U.S., resulted in a response of “not on file – irregular s/n”. No documents were found to associate this item with any named individual. No one has come forward since it was seized in March 2010, to claim ownership, or to assert any interest in it.
2008 GMC Sierra Pickup Truck
[28] In the course of the search of Mr. Breton’s property police located and seized a purchased agreement and a receipt for this vehicle, dated July 27, 2008, both in the name of Terrence Hascher (Trial Exhibit 14). Also found were a Certificate of Automobile Insurance. The registered owner is shown as Terrence Hascher. Mr. Hascher testified at trial that he had been friends with Mr. Breton for 30 years. He stated Mr. Breton purchased the vehicle, and asked him (Hascher) to put it in his name. Mr. Breton has had possession of the vehicle since it was purchased. Breton pays the insurance and maintenance, and Hascher has only driven the vehicle once.
[29] Mr. Hascher was served with a copy of the Seizure Order, and has not asserted any ownership or other interest in the truck.
[30] The forfeiture provisions were dealt with by the Supreme Court of Canada in R. c. Lavigne, 2006 SCC 10, 2006 CarswellQue 2524 where the Court stated::
10 The sentence imposed for an offence under Part XII.2 on proceeds of crime consists of two elements: the penalty for committing a designated offence (s. 462.3(1)), and forfeiture of the proceeds of crime (s. 462.37(1)). The new provisions are in addition to existing methods. The intention of Parliament is clear. Not only must the act itself be punished, but it must not benefit the offender. Parliament’s purpose in doing this is to ensure that crime does not pay. Although the appeal concerns the discretion of a court that imposes a fine instead of forfeiture, the objective of the primary provision must be correctly established for it to be possible to identify the objective of the provision authorizing this sentence.
11 The primary provision on forfeiture is capable of very broad meaning. It reads as follows:
462.37 (1) Subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
12 The property that is liable to forfeiture is property that is “proceeds of crime”. This expression is defined as follows in s. 462.3(1):
462.3 (1) . . . “proceeds of crime” means any property, benefit or advantage, within or outside Canada, obtained or derived directly or indirectly as a result of
(a) the commission in Canada of a designated offence, or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence.
The word “property” is defined in s. 2:
- . . .“property” includes
(a) real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods,
(b) property originally in the possession or under the control of any person, and any property into or for which it has been converted or exchanged and anything acquired at any time by the conversion or exchange, . . .
13 There is thus a wide range of property that could be proceeds of crime. Such property may consist of real rights or personal rights, of corporeal or incorporeal property. Forfeiture may apply to the original property, or property acquired in exchange for or by conversion of the original property. It could also apply to a right in a portion of property. The link between the property or right and the designated offence need not be direct. It is enough that the offence be committed “in relation to” the property or the right.
14 As is clearly stated in s. 462.37(1), a court imposing sentence on an offender convicted of an offence involving the proceeds of crime “shall”, on application of the Attorney General, order the forfeiture of the property where the offence was committed in relation to that property.
15 The broad meaning of the expressions “proceeds of crime” and “in relation to”, combined with the fact that no discretion whatsoever is provided for in s. 462.37(1), is significant. Parliament has made this provision mandatory by requiring forfeiture and making the provision apply to the widest possible range of property.
[31] In R. v. Sankar, 2010 ONSC 6967, Justice Durno dealt with s. 462.3:
[9] Before a forfeiture order is made the following notice provisions apply:
Notice
462.41 (1) Before making an order under subsection 462.37(1) or (2.01) or 462.38(2) in relation to any property, a court shall require notice in accordance with subsection (2) to be given to and may hear any person who, in the opinion of the court, appears to have a valid interest in the property.
The Onus
[17] Once the applicable sections are identified, the onus and burden issues are governed by those sections - s. 462.37 and s. 462.41. The onus is on the Crown on the balance of probabilities to establish 1) the property is proceeds of crime, and 2) the designated offence was committed in relation to that property. There is no onus on those claiming an interest. At the end of the evidence, if any, and submissions, the question is whether the Crown has met their onus.
The Evidence
[18] Before a person can be found guilty of a criminal offence, either by way of guilty plea or trial, the Crown has to establish the elements of the offence(s) charged. What the Crown has to establish on a forfeiture application is that the property was proceeds of crime and that the enterprise crime was committed in relation to the property which the Crown seeks forfeited. Wilson, para. 13.
[19] An application for forfeiture after a conviction is not a criminal trial. The focus is on the property, not guilt or innocence. The application typically relies upon the factual findings of the jury or trial judge. It is not intended to be a rehearing of the evidence or factual findings of the trial judge or implicit findings from the jury’s verdict. Nor are those claiming an interest permitted to re-litigate factual issues determined at trial. However, supplemental evidence that is relevant to the forfeiture issues may be heard. R. v. Hells Angels Motorcycle Corp. 2009 CanLII 53152 (ON SC), [2009] O.J. No. 3503 (S.C.J.) at paras. 12 and 14
[32] The Crown referenced the decision of Lalonde J., in R v. Saikaley, 2003 ONSC 4349, at para. 103, where he noted that:
[103] A prerequisite to making a forfeiture order “is that the Court is satisfied on the balance of probabilities that any property is proceeds of crime and that the designated offence was committed in relation to that property” as stated by Rosenberg J.A. in R. v. Dwyer 2013 ONCA 34 at para. 21. Crown counsel also brought to my attention, s. 462.39 of the Criminal Code, which reads as follows:
Inference
462.39 For the purpose of subsection 462.37(1) or 462.38(2), the court may infer that property was obtained or derived as a result of the commission of a designated offence where evidence establishes that the value, after the commission of that offence, of all the property of the person alleged to have committed the offence exceeds the value of all the property of that person before the commission of that offence and the court is satisfied that the income of that person from sources unrelated to designated offences committed by that person cannot reasonably account for such an increase in value.
Crown’s Position
[33] The Crown argues that with respect to all of the seized items, except for the claims by Mr. Gardiner and Ms. Gagnon, despite the investigation by the police to determine ownership, no one has claimed any interest in any of them.
[34] With respect to the claims by Mr. Gardiner and Ms. Gagnon, the Crown recognizes the onus on the Crown, but submits that the evidence of both these claimants is vague, uncertain, and improbable. Mr. Brewer argues that the Crown has met the onus to establish these items to be proceeds of crime.
[35] The Crown relies on the fact of the convictions at trial, and my findings. He argues, by inference, that the evidence, or lack of evidence, shows that Mr. Breton had no means to acquire any of the items. He had no employment for several years prior, and acknowledged to his one-time partner that he had been accumulating money from the sale of drugs for five years. Further, the Crown notes that in the course of these proceedings, Mr. Breton made applications to access the funds seized, which he claimed were his, for the purpose of retaining legal counsel.
[36] The Crown relies on s. 490(9) of the Criminal Code which provides for forfeiture of anything seized that has been brought before a justice, and possession by the person from whom it was seized is unlawful. The Crown seeks forfeiture of the digital scales and triple beam balance scales.
[37] The Crown further seeks forfeiture of the “butterfly” or “flick” knife and .22 caliber ammunition found and seized, pursuant to s. 491(1).
Disposition
[38] With respect to the claims by Mr. Gardiner and Ms. Gagnon, the onus is on the Crown, on a balance of probabilities. Ms. Gagnon initially spoke to police of a different ATV, and only subsequently stated that she was speaking of the Kawasaki seized. The great difficulty I have with her evidence is that she could provide no information as to where or when it was purchased. She had no receipt for it. She had no insurance on it. She could not describe it. She left the keys to the machine at Mr. Breton’s, despite the fact that she lived a long way from him.
[39] With respect to Mr. Gardiner’s claim to the Bobcat, he did not know that his Treaty card had been used. He had no receipt for it. It was never registered in his name. He stated he left it stored at Mr. Breton’s beginning in 2006 and had not used it through to the seizure. He asserted no claim to ownership until he made his claim at the forfeiture hearing.
[40] With respect the Polaris snow machine, Mr. Breton was shown on record at a dealer when the machine was brought in for repairs. Mr. Gardiner says he stored it at Mr. Breton’s immediately after purchasing it in 2007 or 2008, that he left the ownership and the keys with Mr. Breton. He asserted no claim to ownership prior to this hearing.
[41] While I recognize the onus is on the Crown, in the case of both Ms. Gagnon and Mr. Gardiner, their evidence is so uncertain and improbably, that it cannot be relied on.
[42] I am left with the evidence of the Crown which is sufficient to establish that on a balance of probabilities these items were proceeds of crime.
[43] With respect to all other items seized, I again comment that the trial evidence established that for a period of several years, Mr. Breton had no source of income other than monies from selling drugs. I accept the evidence in the affidavit of Sergeant Quarrel that he did speak with some people who may have had an interest, specifically in the Bayliner boat, the John Deere lawn mover, the 1981 Chevrolet Camaro. No one claimed an interest at the hearing in any of these items.
[44] With respect to the 2008 GMC Sierra pickup truck, the evidence of Terrence Hascher is clear and establishes that while he was the nominal owner, the truck was purchased, and used, by Mr. Breton, who paid the insurance and maintenance. No interest was claimed by anyone.
[45] Elisa Leal testified that although the 1981 Camaro had her licence plate on it, she did not own the vehicle. The owner on the registration was shown as Bradley Pollock. No interest was claimed by anyone.
[46] The Yamaha outboard motor had an irregular serial number. No one has claimed an interest in this item.
[47] Section 462.39 permits a court to make an “inference” when deciding whether to engage the forfeiture provisions. The only reasonable inference for me to draw with respect to these items is that they were obtained using proceeds of crime, namely trafficking in drugs. There is a pattern of using nominee owners, none of whom claimed any interest in any of the items.
[48] On the totality of the facts found in this case, I am satisfied that the digital and triple beam balance scales have been used in the commission of offences under s. 5 of the Controlled Drugs and Substances Act. These items shall be forfeited to the Crown.
[49] I am satisfied that the evidence in the trial, including a demonstration requested in cross-examination by Mr. Breton as to the operation of the knife, is sufficient to meet the definition of a prohibited weapon: R. v. Vaughn, 1991 CanLII 23 (SCC), [1991] 3 S.C.R. 691, 69 C.C.C. (3d) 576. I am further satisfied that the .22 caliber ammunition meets the definition: R. v. Singh (2004), 2004 BCCA 428, 188 C.C.C. (3d) 129 (B.C.C.A.). There will be an order for forfeiture of these items pursuant to s. 491(1) of the Criminal Code.
[50] Considering all of the evidence with respect to the items seized, I am satisfied that all of the items as outlined in paragraph 6 of these reasons should be forfeited to the Crown.
[51] Order to go accordingly
Mr. Justice T. A. Platana
Released: March 4, 2015
CITATION: R. v. Breton, 2015 ONSC 1365
COURT FILE NO.: CR-10-0024 and CR-12-0024
DATE: 2015-03-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Applicant
- and -
Marcel Donald Breton,
Respondent
REASONS ON
APPLICATION FOR FORFEITURE
Platana J.
Released: March 4, 2015
/mls