Overview

[1] The applicant, Joseph Chang, is currently charged with three separate sets of charges. He seeks an order pursuant to s. 462.34(4)(c) of the Criminal Code for the return of monies seized by the Toronto Police Service on July 23, 2016 and March 3, 2018 for the payment of reasonable legal expenses to defend the charges.

[2] On July 23, 2016, police executed a search warrant on 52 Mabelle Avenue, Unit 2017. Police seized drugs, drug trafficking paraphernalia, and $385,515.00 in cash. As a result, Mr. Chang was charged with four counts of possession for the purpose of trafficking in cocaine, oxycodone, MDMA, and marijuana, and possession of property obtained by crime over $5,000.00. He was released on bail.

[3] On March 4, 2018, police executed a search warrant on 118 Balliol Street, Unit 2301. Police seized drugs, drug trafficking paraphernalia, a loaded handgun, a silencer, and $74,080.00 in cash from inside the unit and outside of the building. Arising from these events, Mr. Chang was charged with a total of 26 offences; seven counts of possession of drugs for the purpose of trafficking, possession of property obtained by crime over $5,000.00, several firearm offences, and three counts of failing to comply with a recognizance.

[4] On March 5, 2018, was arrested and charged with first degree murder. He has been in custody since that date.

[5] Mr. Chang seeks access to the $459,595.00 seized by the police on July 23, 2016 and March 4, 2018 to meet his reasonable legal expenses to make full answer and defence to the criminal charges he is facing.

[6] In order to succeed on this application, Mr. Chang must establish three things:

he has an interest in the money that was seized by the police;
no other person has an interest in it; and
he has no other means or assets available to him to meet his reasonable legal expenses.

[7] There is no dispute amongst counsel that Mr. Chang has established that he has an interest in the money and that no other person has an interest in it. The issue is whether Mr. Chang has established on a balance of probabilities that he lacks the financial resources to retain counsel.

[8] Although the primary goal of the proceeds of crime regime set out in Part XII.2 of the Criminal Code is to ensure that crime does not pay, the Supreme Court of Canada has recently confirmed the important secondary policy objectives, which underlie the legal expenses return provision in s. 462.34(4)(c): 1) providing access to counsel and 2) giving meaningful weight to the presumption of innocence: R. v. Rafilovich 2019 SCC 51, at para. 9.

[9] Mr. Chang filed an affidavit on this application indicating that he has been in custody since his arrest on March 5, 2018 and as such has no source of income to fund his defence. He also filed affidavits from both of his parents and his brother indicating that they are not in a financial position to assist Mr. Chang with his legal expenses. That is the sum total of evidence before the court regarding Mr. Chang’s financial situation.

[10] In order to balance the competing objectives of the proceeds of crime regime, the court is required to conduct an in-depth review of the accused’s financial situation: Rafilovich, at para. 36. In Rafilovich, Justice Martin cited the decision in R. v. Borean, 2007 NBQB 335, with approval. The court in Borean held that the inquiry into the accused’s financial situation must be more than cursory and should not be based on unsubstantiated statements by the accused alone. Rather, the court must undertake a, “significant and in-depth review of the facts:” Borean, at para. 8.

[11] I am unable to conduct any type of review of Mr. Chang’s financial situation given the dearth of information before the court.

[12] Mr. Litkowski submitted that it does not properly lie in the mouths of the prosecutors to complain that there is insufficient information about Mr. Chang’s financial situation, when they have had Mr. Chang’s affidavits for months and have made no request to cross-examine any of the affiants. However, it is Mr. Chang’s onus to satisfy me that he has no other assets or means available for the purpose of meeting his reasonable legal expenses, and he has not met it.

[13] The application is dismissed.

Corrick J.

Released: November 25, 2019

COURT FILE NO.: CR-9-MO-90000162

DATE: 20191125

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JOSEPH CHANG

ruling on application

to release seized funds

Corrick J.

Released: November 25, 2019

R. v. Chang, 2019 ONSC 6777

Case Summary

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