CITATION: R. v. Lucia - In the matter of seizure of property, 2016 ONSC 668
COURT FILE NO.: 55/15
DATE: 2016 01 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Lucia - The detention of seized property pursuant to s. 489 and 490 of the Criminal Code of Canada, R.S.C. 1985, Chap. C-46
BEFORE: Price, J.
COUNSEL: L. Marcon - Counsel for the Crown
A. Robbins, Counsel for Tony Lucia
HEARD: January 25, 2016
ENDORSEMENT
[1] The Crown applies, pursuant to s. 489 and s. 490(9.1) of the Criminal Code of Canada, for an order for the return of items seized from the Respondents, Tony Lucia and his son, Saverio (Sam) Lucia, that are no longer required for ongoing investigation, and for the continued detention of items that are still required for ongoing investigation.
[2] Sections 489.1 and 490 make a distinction between the circumstances in which proceedings have been instituted and circumstances in which they have not been.
[3] In the present case, proceedings were instituted against Sam Lucia on July 26, 2011, for indignity to a body and for being an accessory after the fact to the murder of Morris Conte, which proceeding was later discontinued, after a committal for trial on December 10, 2013, by the withdrawal of the charges on October 1, 2014. The police continue to investigate a suspected offence of murder by Tony Lucia of Mr. Conte.
[4] In these circumstances, where the continued detention of the items is said to be required after the discontinuance of the proceedings that were instituted, as necessary for the investigation of charges for which proceedings have never been instituted, I agree with the Crown that the applicable section is s. 490(9.1) in respect of circumstances in which proceedings have not been instituted.
[5] The test in the section requires the court to determine whether:
(a) The continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4); and,
(b) It is in the interests of justice to do so.
[6] Sam Lucia has signed a Waiver of Things Seized dated December 10, 2015, by which he consents to the contents of the 2007 Ford pick-up truck, bearing Ontario Marker 524 8TV, being detained until the conclusion of the investigation. These reasons will therefore address primarily the other items that were seized.
[7] The Crown has concluded that the following other property that was seized by warrant is not believed to have evidentiary value in the investigation and can be returned to the rightful owner. It is accordingly ordered that the Crown shall forthwith return the following:
(a) Exhibit 0046 – Black bag with stainless steel knife – seized from 13150 Centreville Creek Road – to Tony Lucia;
(b) Exhibit 0047 – Yellow Hack Saw – 13150 – seized from 13150 Centreville Creek Road – to Tony Lucia;
(c) Exhibit 0067, 0068, 0069, 0070 – Soil sample – seized from 5 Betomat Court, Bolton – to Sam Lucia;
(d) Exhibit 0079 – Garmin NUVI – seized from a black Chrysler 300 – to Angela Lucia;
(e) Exhibit 0088 and 0089 – Motorola cell phones (x2) to Sam Lucia and Tony Lucia, respectively;
(f) Exhibit 8a and 93 – 2 dog hairs – seized from 13150 Centreville Creek Road – to Tony Lucia; and
(g) P13029796 – male Pulsar wrist watch – seized from 13150 Centreville Creek Road – to Tony Lucia.
[8] I find that the remainder of the items in respect of which the Crown applied for continued detention might reasonably be required for the ongoing investigation of an offence of murder by Tony Lucia of Morris Conte. The offence is a most serious one. The investigation is complex having regard to the facts among others, that:
(a) There are five crime scenes, owing to the dismembering of the victim’s body and the recovering of parts of his body from multiple locations; and,
(b) The murder weapon, and the tool used in the dismemberment, and the cell phone used by the suspect for communications on the day of the suspected offence, have not yet been recovered. If they are recovered, the source from which they are recovered would be new crime scenes; and,
(c) The disposal of the body gives rise to the need for forensic investigation, including DNA analysis, in respect of which the technologies are evolving.
[9] The lead investigator, Detective Constable Shawna Ovenden, testified that Tony Lucia’s vehicle has been returned to him and that its Navigational System was replaced by the Crown. The only other items that would have potential use to their owner are two navigational systems, 2 GPS devices, and one leather jacket seized from the rear seat of the vehicle. Evidence has disclosed that the truck in which the jacket was found was used to pick up the victim on the last day he was seen alive. No one has come forward to claim ownership of the jacket.
[10] I am satisfied that there is evidentiary value to each of the items in respect of which the Crown seeks an order for continued detention. Mr. Robbins, on behalf of Tony Lucia, has argued that the Crown should have requested the analysis of the items, and particular of the navigational systems, before this. It is not disputed that the Crown has been aware for over a year that further evidence may be available from the navigational systems from a different form of analysis than the one that has been employed in the past.
[11] However, I am satisfied with Det. Cst. Ovenden’s explanation for the delay. She explained that the Centre of Forensic Science assigns priorities to its investigations of items based on circumstances that change from time to time, and that have regard to the following:
a. The type of offences being investigated;
b. The resources available to the Centre;
c. The extent to which the analysis might afford the best evidence of the offence; and
d. The likelihood that analysis would yield useful evidence.
[12] The court must be cautious in second-guessing the Centre of Forensic Science’s prioritizing of its investigations, having regard to the fact that the Centre is best positioned to know what its resources are and the demands that other requests for its services place upon it.
[13] Having considered the interests of the public in the effective investigation of this offence, and the interests of Mr. Lucia in his property, and the public interest in avoiding unwarranted interference with private property, I have concluded, for the reasons stated above, that it is in the interest of justice that the Crown be permitted to continue to detain the remaining items seized, including the contents of the truck seized from Sam Lucia, for the purpose of its ongoing investigation, and it will be so ordered.
[14] Order will issue in the terms of the draft orders filed, which I have signed.
Price, J.
Date: January 25, 2016
CITATION: R. v. Lucia - In the matter of seizure of property, 2016 ONSC 668
COURT FILE NO.: 55/15
DATE: 2016 01 25
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: R. v. Lucia - The detention of seized property pursuant to s. 489 and 490 of the Criminal Code of Canada, R.S.C. 1985, Chap. C-46
COUNSEL: L. Marcon - Counsel for the Crown
A. Robbins, Counsel for Tony Lucia
HEARD: January 25, 2016
ENDORSEMENT
Price J.
Released: January 25, 2016