Court File and Parties

Oshawa Court File No.: CR-16-14309 Date: 2017-03-13 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Justin Bellinger, Defendant/Respondent

Counsel: Sebastian Lafrance, for the Crown Enoch Samuel Guimond, for the Defendant/Respondent

Heard: March 8, 2017

Reasons for Decision

CHARNEY J.:

Introduction

[1] This is an application by the Crown for an order in the nature of a writ of certiorari with mandamus in aid seeking to quash the decision of the Justice of the Peace refusing to order the detention of the defendant’s automobile which the police allege was used to commit offences under the Criminal Code and the Controlled Drugs and Substances Act (CDSA). The Justice of the Peace refused to order the detention of the vehicle and instead ordered it returned to the defendant.

[2] The Crown contends that the Justice of the Peace erred in failing to apply the law in relation to the detention of property as required by subs. 490(1) of the Criminal Code, and took into account irrelevant factors in making her determination that the vehicle should not be detained. The Crown further submits that because the Justice of the Peace failed to apply the proper legal test she acted without jurisdiction and certiorari and mandamus from the Superior Court are available as appropriate remedies.

Background Facts

[3] On October 7, 2016, the Durham Regional Police Service (DRPS) engaged in an undercover operation in which the Respondent, Justin Bellinger, and another individual named Pankaj Bedi were arrested.

[4] The DRPS used $4,000 in marked police “buy money” to purchase one ounce of heroin from Bedi. Bedi advised the undercover police officer that he needed to meet with his supplier to obtain the heroin. The undercover officer and Bedi drove to a parking lot located at 680 Laval Road, Oshawa, Ontario to meet the supplier. Bellinger arrived at the parking lot in a white Audi A52 motor vehicle (the vehicle). Bedi entered the passenger side of the vehicle and Bellinger and Bedi were arrested inside the vehicle by the DRPS. Police seized 34 grams of heroin and $500 of marked police buy money from Bedi. $3,500 in marked police buy money was found in the driver’s side door next to Bellinger.

[5] Bellinger and Bedi were charged with trafficking under CDSA. The DRPS seized Bellinger’s vehicle as offence-related property as defined in the CDSA because the vehicle was used to facilitate the offence of trafficking in a controlled substance.

Section 490 of the Criminal Code

[6] When the police seize property and wish to detain it they are required to bring the seized property or prepare a “report” to a justice of the peace or provincial court judge and seek a detention order under s. 490(1) of the Criminal Code. That provision provides:

490 (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding. (emphasis added)

[7] The report filed pursuant to s. 490 is referred to as a “Form 5.2 Report”.

[8] Section 490 of the Criminal Code provides a comprehensive scheme for the procedure to be adopted for such detentions by the police. The legal principles applicable to an application under s. 490(1) of the Criminal Code were summarized by Hainey J. in R. v. Wedderburn, 2013 ONSC 4707 at paras. 14 – 18 (citations omitted):

An application to a justice for a property detention order under subs. 490(1) of the Criminal Code is to be summarily determined. It is an administrative matter that is decided on an ex parte basis. The only requirement is a completed Report to a Justice in Form 5.2. No evidence is required…

A justice considering an application under s. 490(1) of the Criminal Code is not a “court”…

Applications under s. 490(1) of the Criminal Code involve administrative acts which afford limited discretion to a justice…

The phrase “preliminary inquiry, trial or other proceeding” includes a forfeiture hearing under s. 490.1 of the Criminal Code. Forfeiture of “offence-related” property under s. 490.1 is part of the sentencing proceedings at trial. Accordingly, s. 490(1) requires the detention of offence-related property for forfeiture for the purpose of trial…

“Offence-related property” is defined in s. 2 of the Criminal Code to include “any property…that is used in any manner in connection with the commission of such an offence”.

[9] In addition, s. 16(1) of the CDSA also provides for an order for the forfeiture of offence-related property on conviction, so that the phrase “trial or other proceeding” also includes a forfeiture hearing under s. 16 of the CDSA.

[10] The CDSA defines “offence-related property” as:

…any property, within or outside Canada,

(a) by means of or in respect of which a designated substance offence is committed,

(b) that is used in any manner in connection with the commission of a designated substance offence, or

(c) that is intended for use for the purpose of committing a designated substance offence;

Proceeding Before the Justice of the Peace

[11] On October 14, 2016, Detective Constable Baldini of the DRPS made a Form 5.2 Report to a Justice as required by ss. 489.1 and 490 of the Criminal Code seeking an Order of Detention against the vehicle and some other items that had been seized from Bellinger upon arrest. The Report stated:

On the 7th of October 2016 at 9:30 pm Police arrested the accused party during an undercover operation. The accused was arrested inside a White Audi A5 vehicle and a search incident to arrest revealed a Smart Phone and a quantity of Heroin. The accused was held for a bail hearing.

[12] In addition, the Exhibit Log appended to the Form 5.2 Report indicated that the police found “currency confirmed as buy money” inside the “Driver’s side door skin”.

[13] The Report did not indicate that vehicle was being held for a forfeiture hearing.

[14] In fairness to the Justice of the Peace, the information provided in the Form 5.2 was not particularly helpful in establishing the connection between the property and the offence.

[15] The Justice of the Peace required some clarification and asked DC Baldini why the police wanted to detain the vehicle. In a less then helpful answer, DC Baldini simply replied “Offence related property”.

[16] The Justice of the Peace and DC Baldini then engaged in the following dialogue:

The Court: Really. So…I could…drive myself over to someone’s house, murder them, get back in the car and drive home, they don’t take my car. I could commit theft under…

Baldini: But, but a thief doesn’t buy their car with drug money. A drug dealer does.

The Court: No. It’s not… like it’s just returned to him because how much is it per day in the pound?

Baldini: I’m not sure.

The Court: It’s a lot. It’s like 300 bucks a day.

Baldini: So you want the car returned to him?

The Court: Yeah, I do.

[17] I pause here to note that this appears to be the point at which the Justice of the Peace has made her decision. This is important to my analysis because the Justice of the Peace and DC Baldini continue to debate the merits of the detention order at various points in the transcript. These debates are relevant to my analysis because they disclose some of the reasons of the Justice of the Peace, but it is important to emphasize that the decision has already been made.

[18] The Justice of the Peace then stated:

You know what, from upon conviction somebody else could be punitive and take it. They can take his house, they can take his car, they can do all kinds of stuff, but at this point every single person who is charged with dealing drugs they’re not…subject to lose their vehicle…

[19] It appears from this comment that the Justice of the Peace is aware that the vehicle can be subject to a forfeiture proceeding, but considers this to be irrelevant at this point in the proceedings.

[20] Finally, after reviewing a number of other unrelated Form 5.2 reports, the Court and DC Baldini had the following exchange:

The Court: I bet you all these guys, I bet you this guy with this store, I bet he had a car, and I bet this guy here had a car.

Baldini: They probably didn’t sell drugs out of their car though.

The Court: I’m sure they drove their car around to pick stuff up and had something to do with their business.

Baldini: The purpose of us seizing the car is it’s part of the investigation. It’s where they’re actually doing their drug dealing, so to us it’s deemed offence related property.

The Court: They were arrested at 680 Laval Drive. In Oshawa.

Baldini: In the parking lot, in the car.

The Court: Well, you could have arrested them at home, too.

The Court: …While you’re under the presumption of innocence you have certain constitutional rights and you balance…the right to be presumed innocent with the…section 7 rights of the community to be safe and secure in the community. And…obviously that entails police doing their job. I can see keeping the dashboard camera…as long as you can tell me why you’d need the dashboard camera…But I’m not going to – I cannot in good conscience, because I’m basically saying take the car and you and I both know that by the time this goes to trial he’s never going to see the car again, so to me in my mind it’s extremely punitive at this point. If in the future it’s deemed appropriate that whatever he owns is …his house, his apartment, his condo, his car, his bank account, whatever. When he’s found guilty then I can see that…I mean there’s other aspects of sentencing but at the same time I can’t see…his car sitting at a pound until this guy goes to trial, how that’s going to further your investigation.

Baldini: The point isn’t the car’s going to further the investigation…we’re deeming it offence related property…because it’s related directly to…

The Court: But you’re deeming it. He’s presumed innocent right now. He’s got a Constitutional right to be presumed innocent.

Analysis

[21] The Crown takes the position that the vehicle was seized because it was required for the purposes of a forfeiture hearing. The Crown, at para. 25 of its factum states:

Given that the making of a Report to a Justice is an administrative matter in which no evidence is required apart from a Report to a Justice, Justice of the Peace Allison should have issued an Order of Detention upon hearing that charges had been laid against the Respondent, and that the vehicle was regarded as offence-related property and that its detention was required for the purposes of a forfeiture hearing. (emphasis added)

[22] As indicated above, a forfeiture hearing under the Code or the CDSA is part of a “trial or other proceeding” within the meaning of s. 490(1) of the Code.

[23] The Crown relies on the decision in R. v. Wedderburn, 2013 ONSC 4707, which dealt with the detention of a motor vehicle used in the commission of two robberies. In that decision Hainey J. held that the Justice of the Peace acted without jurisdiction when she declined to order the detention of the vehicle. He stated (at paras. 19 – 21):

The Mazda seized by the police was offence-related property… According to D.C. King's Report to the Justice, it had been used by Mr. Wedderburn in the commission of two robberies. Further, the Report to the Justice made it clear that the Mazda was required to be detained for forfeiture at trial as offence-related property. The justice was required to make an order detaining the Mazda for a forfeiture hearing at trial under section 490(1) of the Criminal Code. She failed to apply the correct legal test under the Criminal Code in declining to do so. It is not a requirement under section 490(1) that the property is required as evidence. It was a fundamental error for the justice to decline to order the Mazda's detention on this basis. It was similarly a fundamental error for the justice to order the Mazda returned to Mr. Wedderburn for the same reason.

The justice did not have the discretion to decline to order the Mazda's detention under section 490(1). She failed to consider and apply the legal provisions relating to the detention of offence-related property and thereby acted without jurisdiction. The justice also acted without jurisdiction in ordering the return of the Mazda to Mr. Wedderburn. Her order is, therefore, of no force or effect.

In view of my conclusion that the justice acted without jurisdiction, the remedies of certiorari and mandamus are available to the Crown. Toronto Police Services Board v. Cremisio, [2007] O.J. No. 3709, (Sup. Ct.) and R. v. Superior Pharmacy Ltd., [1997] O.J. No, 2270, (Ont. Ct. Jus. (Gen. Div.)).

[24] The Crown also relies on the decision in R. v. Kawecki, 2014 ONSC 3584, in which the court discussed the limited jurisdiction of the Justice of the Peace under ss. 489.1 and 490 of the Code (at paras. 34 – 36):

In Hicks, the detention orders were upheld. The Court commented, at para. 14, that the justice of the peace “has very limited jurisdiction within the scope of s. 490 and that jurisdiction does not include the holding of a hearing or an inquiry into the bona fides of the police officer’s actions in the execution of his duties under the Code.”

I would add to that comment from Hicks that neither does section 490(1) allow for the holding of a hearing by the justice of the peace as to the merits of the evidence from the peace officer that the thing seized should be detained or returned, including a hearing into the issue of whether the lawful owner is an innocent person suffering a hardship as a result of her vehicle being detained.

I make this point in response to the argument from the applicant that the purpose of sections 489.1 and 490(1) is to protect the proprietary rights of the innocent person. This is, with respect, an overstatement of the objective of this stage of the statutory scheme…

[25] The Court in Kawecki went on to summarize the objective of this statutory scheme (at para. 38):

I agree with the Crown that the objective of the statutory scheme governing seizure, detention and release at this stage under section 489.1 is to ensure that things seized by peace officers in the course of their duties are reported to the court and returned to their owner in a timely manner unless their possession is unlawful or their detention is required for an investigation or preliminary inquiry, trial or other proceeding. Section 490(1) then carries forward this objective and requires the justice of the peace receiving the Report to Justice from the peace officer to order either the return or detention of the things seized, based on the information in the Form 5.2 Report to Justice and any other information the peace officer may convey.

[26] It is clear from the excerpts of the transcript quoted above that the considerations expressed by the Justice of the Peace in declining to grant the order to detain the vehicle were irrelevant to the limited analysis to be undertaken by the Justice of the Peace in the exercise of her discretion. It did not matter for the purpose of her analysis under s. 490 of the Code that the accused is presumed innocent until proven guilty, or that detention of the property would impose a financial hardship on the accused. Nor, in any event, did the Justice of the Peace have any evidence of such financial hardship nor any evidence that the cost to the accused of detaining the vehicle would be $300.00 per day. All of these considerations were irrelevant under the statutory scheme established by s. 490(1) of the Code.

[27] The Justice of the Peace’s reference to s. 7 of the Charter was also misplaced. The constitutional validity of s. 490(1) was not challenged in the proceeding before her. In the absence of a successful challenge to the constitutional validity of the statutory scheme established by s. 490, the Justice of the Peace may not disregard the provision or give consideration to factors outside the ambit of the statutory scheme.

[28] The only issue for the Justice of the Peace was whether the peace officer satisfied her “that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding”.

[29] The officer acknowledged that the vehicle was not being detained because it was required to further the investigation.

[30] The only reason for detention advanced by the officer was that the vehicle was offence-related property. There can be no dispute that a motor vehicle used to deliver drugs to a drug transaction and hide the drug money collected on the sale qualifies as “offence-related property” under the CDSA (R. v. Durette, 2014 ONCA 747, at para. 11). To the extent that the Justice of the Peace suggested otherwise she was incorrect in law.

[31] In the Wedderburn decision Hainey J. noted: “the Report to the Justice made it clear that the Mazda was required to be detained for forfeiture at trial as offence-related property”. In this case the Form 5.2 filed by the police did not make it clear that the vehicle was required to be detained for forfeiture at trial as offence-related property. The words “forfeiture hearing” do not appear in the Form 5.2 filed by the DRPS, nor did DC Baldini ever use the words “forfeiture hearing” in his answers to the Justice of the Peace when asked to explain why the vehicle was being detained. His curt reply of “offence-related property” appears to have been police shorthand intended to convey to the Justice of the Peace that there would be a future forfeiture hearing. The forfeiture hearing under s. 16 of the CDSA is the reason for defining “offence-related property” in the CDSA. That being said, DC Baldini could have been more explicit and more helpful in his reply to the Justice of the Peace’s question.

[32] On the other hand, the comments of the Justice of the Peace indicate that she understood that the vehicle would ultimately be subject to a forfeiture hearing. Her reason for denying the detention order was that the police should not be permitted to detain the vehicle for a forfeiture hearing until after the accused was convicted because it would impose a financial hardship on the accused.

[33] With respect, this is not what s. 490(1) provides. As indicated above the Justice of the Peace has limited discretion under s. 490(1). At the point that she made her decision she had not answered the only question put to her by the legislation: is the vehicle required for the purposes of any trial or other proceeding, which would include a forfeiture hearing?

[34] I am troubled by the failure of the police to make an express reference to the forfeiture hearing in the Form 5.2 or their answers to the Justice of the Peace’s questions. A similar issue arose in Kawecki, where the Court found that it was not in fact necessary for the police to make an express reference to a future forfeiture hearing since the Justice of the Peace is presumed to know that a forfeiture hearing is the general consequence in these cases. The court stated (at paras. 43 -50):

I agree with the applicant that the Form 5.2 in the present case could have expressly and more clearly stated that the vehicle was to remain detained until the completion of all proceedings and for the purposes of an “other proceeding,” tracking the wording in the subsection, namely a forfeiture hearing. Instead, there was no mention made of detention being required for an “other proceeding.”

Detective Cathcart testified that a forfeiture hearing was contemplated as being the “other proceeding” as such a hearing occurs in the usual course under the statutory scheme for offence-related property that has been seized and detained and where charges have been laid.

I find that this omission in Detective Cathcart’s Form 5.2 of an express statement that detention was required for an “other proceeding” did not amount to a fatal defect. It did not cause the Detention Order to have been made without evidence of that “other proceeding” being placed before the justice of the peace as required under section 490(1).

I come to this conclusion because the peace officer and the justice of the peace were operating and are presumed to have known they were operating within one stage of a larger statutory scheme for the seizure, detention and release of offence-related property. A forfeiture hearing or an application for the return of seized things form part of a later stage of the section 490 scheme for things seized and detained and are clearly an “other proceeding.”

In addition, there is mention made in the standard order portion of Form 5.2 that detention is required “until the completion of all proceedings” and there is no reason to conclude that the “other proceeding” referred to in section 490(1) is not included in this phrase.

It is this statutory context when taken together with the information contained in Detective Cathcart’s Form 5.2 Report to Justice that allowed the justice, in my view, to exercise his statutory authority under section 490(1) and to be satisfied that detention was required for an “other proceeding.”

[35] Precisely the same analysis would apply in the case before me.

[36] This same conclusion was reached in R. v. Dawson, 2013 ONSC 4706, where Healey J. stated (at para. 8):

I am … satisfied that the statutory regime set out in s. 490 and sections 16 and 17 of the CDSA work together to mandate an order for forfeiture on application that may be commenced only after there has been a conviction. To prematurely release property that is the potential subject of such proceeding would defeat the intent of the statutory scheme. (emphasis added)

Conclusion

[37] Based on the foregoing I conclude that the Justice of the Peace erred in failing to apply the law in relation to the detention of property as required by s. 490(1) of the Criminal Code, and took into account irrelevant factors in making her determination that the vehicle should not be detained.

[38] Since the Justice of the Peace failed to apply the proper legal test she acted without jurisdiction and certiorari and mandamus from the Superior Court are available as appropriate remedies. The mandamus order can require the Justice of the Peace to decide the case in accordance with the correct legal principles, but it cannot direct her to exercise her limited discretion in a particular way. (R. v. Thomson (2005), 74 O.R. (3d) 721 (C.A))

[39] Accordingly, this Court grants the following order:

1. The Application, brought by the Applicant, Her Majesty the Queen, for an order of certiorari is granted. The return order, made by Justice of the Peace C. Allison of the Ontario Court of Justice dated October 14, 2016 for the return of a 2012 Audi A52 motor vehicle to the Respondent, Justin Bellinger, is hereby quashed; and
2. The Application, brought by the Applicant, Her Majesty the Queen, for an order of mandamus is granted. The matter of the detention of a 2012 Audi A52 motor vehicle seized by Durham Regional Police Service on October 7, 2016 and made subject to a report to the justice on October 14, 2016 shall be remitted back to a Justice of the Peace of the Ontario Court of Justice for proper consideration under subsection 490(1) of the Criminal Code of the applicable and governing law in relation to the detention of offence-related property.

Justice R.E. Charney Released: March 13, 2017