Court File and Parties
Court File No.: CR-20-100000048-00MO Date: 2020-03-18 Superior Court of Justice - Ontario
Re: R. v. Christopher Janisse
Before: Cavanagh J.
Counsel: Anna Martin, for the Crown Gregory Lafontaine, for the Applicant
Heard: March 9, 2020
Endorsement
Introduction
1The Applicant brings this application for an order pursuant to ss. 462.34(1) and 462.34(4) of the Criminal Code for return to him of seized property, $99,475 in Canadian currency, for the purpose of meeting his reasonable legal expenses.
2On this type of application, two separate hearings are held. The judge must first determine whether the applicant has an interest in property that was seized and whether the applicant has shown that he or she has no other assets or means available for the purpose of meeting the applicant’s reasonable legal expenses. If the applicant has satisfied the judge of these matters at this first hearing, the judge shall hold an in camera hearing, without the presence of the Crown, for the purpose of determining the reasonableness of the applicant’s legal expenses, and the judge shall take into account the legal aid tariff of the province. The Crown, before or after the in camera hearing, may make representations as to what would constitute reasonable legal expenses.
3This is my decision on the questions presented at the first hearing on this application. For the following reasons, I am satisfied that the Applicant has an interest in the seized property, $99,475 in Canadian currency, and that he has shown that he has no other assets or means available for the purpose of meeting his reasonable legal expenses.
Evidentiary Background
4The Applicant is charged with several serious offences involving possession of controlled substances for the purpose of trafficking, and trafficking in controlled substances.
5Subsection 462.34 of the Criminal Code provides, in the relevant part:
462.34 (1) Any person who has an interest in property that was seized under a warrant issued pursuant to section 462.32 or in respect of which a restraint order was made under subsection 462.33(3) may, at any time, apply to a judge
(a) for an order under subsection 4;
(4) On an application made to a judge under paragraph (1)(a) in respect of any property and after hearing the applicant and the Attorney General and any other person to whom notice was given pursuant to paragraph (2)(b), the judge may order that the property or a part thereof be returned to the applicant or, in the case of a restraint order made under subsection 462.33(3), revoke the order, vary the order to exclude the property or any interest in the property or part thereof from the application of the order or make the order subject to such reasonable conditions as the judge thinks fit,
(c) for the purpose of
(ii) meeting the reasonable business and legal expenses of a person referred to in subparagraph (i), …
if the judge is satisfied that the applicant has no other assets or means available for the purposes set out in this paragraph and that no other person appears to be the lawful owner of or lawfully entitled to possession of the property.
6The Applicant provided affidavit evidence of the charges against him and the seizure of funds from two searches totalling $99,475. The Applicant provided affidavit evidence that he has been in custody since his arrest on June 27, 2019 and, prior to this time, he worked in landscaping and as a general construction worker, earning $20 to $22 per hour for a work week of 30-40 hours. The Applicant provided affidavit evidence that he has a bank account, but it does not have any funds within it. He has a credit card on which he owes a modest amount. His evidence is that he does not own other property, including a vehicle. The Applicant provided affidavit evidence that family members are unable or unwilling to assist in contributing financially to his legal expenses.
7At the hearing of this application, the Applicant was cross-examined on his affidavit. He testified that prior to his arrest, he used money from his bank account to fund payment of rent and other living expenses and, at the time of his arrest, his bank account had a balance of approximately $1,200 to $1,500.
8The Applicant has hired Gregory Lafontaine as his defence counsel, and Mr. Lafontaine has represented him on his charges since July 10, 2019. The Applicant’s evidence is that Mr. Lafontaine is unwilling to represent him on a Legal Aid basis. This was confirmed by Mr. Lafontaine at the hearing of the application.
9The Applicant’s affidavit evidence is that he has not applied for Legal Aid funding because he believes that he would be denied funding given the availability of the seized funds for payment of reasonable legal expenses. On his cross-examination, the Applicant testified that given the seriousness of the charges he is facing, even if he applied for and received Legal Aid funding he would not be able to use his counsel of choice and, as a result, he does not feel he would receive proper representation and the justice he deserves.
Analysis
10My inquiry into the Applicant’s financial situation is based on the affidavit evidence before me and the cross-examination of the applicant on his affidavit. I am satisfied, based on my review of the Applicant’s financial situation, that he does not have other assets or means available to fund his legal defence. This is subject to determination of whether, as a prerequisite to bringing this application, the Applicant should be required to apply for Legal Aid funding for his defence because such funding may qualify under s. 462.34(4)(c) of the Criminal Code as “other ... means available” for the purpose of meeting the Applicant’s reasonable legal expenses.
11There are conflicting lines of authority on the issue of whether an applicant for an order for return of seized money to be used to meet legal expenses must apply for Legal Aid funding as a prerequisite to bringing such an application.
12In R. v. Bedi, [2003] O.J. No. 5825, Nordheimer J. (as he then was) addressed at paras. 9-14 whether there is an obligation on the part of an applicant for an order under s. 462.34 to apply to Legal Aid as an alternative to having access to the seized funds:
I do not believe there is. For one thing the practical reality is that Legal Aid would likely reject an application from someone who has available to them the ability to bring this application, see R. v. Abu-Taha, [2001] O.J. No. 4278 (S.C.J.) at paragraph 4.
Second, the suggestion by the Crown that Legal Aid is a viable alternative involves somewhat circular reasoning. If the proceeds in question are eventually found to be proceeds of crime they would normally revert to the Crown. At the same time the Crown funds Legal Aid. I draw no distinction for the purpose of this analysis as between the Crown in its Federal role and in its Provincial role. In both respects the funds which the Crown has are public funds derived from the same public.
If Mr. Bedi is required to apply to Legal Aid, he would be receiving counsel at the expense of the public in circumstances where the monies which he might otherwise use for his defence may eventually wind up in the very same pocket.
If the funds in the end do not revert to the Crown, then having Mr. Bedi required to apply for Legal Aid would involve him being paid by public funds for his defence where in reality private funds are available for this purpose.
I am satisfied, therefore, that Mr. Bedi should have access to the seized funds for the purpose of paying proper legal fees.
13In R. v. Alves, 2015 ONSC 4489, Kurke J. addressed the balancing of interests that is needed on this kind of application and, in this regard, quoted the following statement by Doherty J.A. in Wilson v. R., [1993] O.J. No. 2523 (C.A.), at para. 47:
In the case of an application under s. 462.34, the judge must balance the applicant’s need for legal assistance against the possibility that property which will turn out to be the proceeds of crime will be used to benefit a person who may be shown to have acquired the property through the commission of a criminal offence.
Kurke J. considered the competing lines of authority and concluded, on the evidence before him, that the applicant was not required to apply for Legal Aid as a prerequisite to bringing his application.
14In R. v. Hobeika, 2014 ONSC 5453, Dunnet J. accepted that courts in Ontario are divided on the issue of whether a Legal Aid application is a necessary precondition to an application for the release of seized funds. Dunnet J. expressed her preference for the reasoning given by Then J. in R. v. Cheng, 2011 ONSC 4479, 284 C.C.C. (3d) 240 and, at para. 26, she quoted the following passages from this decision:
First, it is not, in my view, a foregone conclusion that Legal Aid would reject this application on the basis of the applicant’s potential access to seized monies. It would be available for Legal Aid to take the position that the applicant was without present income to fund his defence and accordingly was eligible for Legal Aid. Moreover, Legal Aid could be granted on condition that the monies be repaid from the seized monies by way of an assignment of funds or a contribution agreement even in the event of an acquittal on the proceeds of crime charge. In the event of a conviction, the seized monies would revert to the state in any case. In view of the availability of such an order, it seems to me that the distinctions drawn in [Bedi, supra, R. v. Bedi, [2003] O.J. No. 5825 (S.C.) at paras. 8-13] between the use of public and presumptively private funds are of little moment.
Secondly, while I appreciate in Bedi, supra, the concern for the public interest that presumptively “private” money be expended for the purpose of legal defence before spending “public” money in the event of an acquittal on the proceeds of crime charge, that concern must be balanced against the prospect that potentially “public” money, i.e. money which will revert to the Crown in the event of a conviction will be expended as if it were “private” money.
For example, if the applicant is convicted of the proceeds of crime offence he will nevertheless have received the benefit of counsel of choice funded at approximately twice the Legal Aid rate from “public” monies which otherwise would have reverted to the Crown if his application is successful. In the result, “public” monies will have been expended at twice the Legal Aid rate to obtain legal representation by counsel of choice which is not available to other impecunious litigants who are state-funded except in very rare circumstances [see R. v. Fisher, [1997] S.J. No. 530 (Sask. Q.B.); R. v. Peterman (2004), 185 CCC (3d) 352 (Ont. C.A.)].
In my view, from a public interest perspective the approach in Bedi, supra, unlike that taken in Kaleniuk, supra, does not strike the appropriate balance between the applicant’s need for legal assistance against the possibility that property which will turn out to be the proceeds of crime will be used to benefit a person who may be shown to have acquired the property through the commission of a criminal offence as identified by Doherty J.A. in [Wilson, supra Wilson et al. v. The Queen (1993), 86 C.C.C. (3d) 464 (Ont. CA)].
15In R. v. Breton, 2014 ONSC 4419, Platana J. heard an application for return of seized property to meet legal expenses in circumstances where the applicant had been granted legal aid. The applicant submitted that reasonable legal expenses would exceed the amount available from legal aid. Platana J. held, citing decisions in R. v. Kaleniuk, [2004] O.J. No. 2122 and R. v. Murtaza, 2011 ONSC 7577, [2011] O.J. No. 6034, that a legal aid certificate can qualify as a means to meet legal expenses under s. 462.34(4) of the Criminal Code. Platana J. held that where the applicant had been granted legal aid, the only circumstance in which the court might consider granting the application is where the accused person shows that the right to a fair trial has been imperiled which, on the evidence in that case, had not been shown.
16These decisions were released before the decision of the Supreme Court of Canada in R. v. Rafilovich, [2019] S.C.J. No. 51 which addressed the proceeds of crime regime in the Criminal Code, including the return provision in s.462.34(4), although in a somewhat different context than that of the application before me.
17In Rafilovich, the appellant had applied for and been granted the return of seized funds to pay for reasonable legal expenses. The appellant pleaded guilty to several offences. The sentencing judge was asked to impose a fine instead of forfeiture of the seized funds and exercised her discretion not to impose a fine. The Court of Appeal for Ontario held that the sentencing judge’s exercise of discretion was inappropriate and varied the sentencing order to impose a fine equal to the amount of the seized and returned funds instead of forfeiture. The appellant appealed to the Supreme Court of Canada.
18Martin J., writing for the majority, observed that accused persons often cannot receive legal aid because seized property is attributed to them and effectively disqualifies them from receiving assistance, even though they cannot actually access their seized property. Martin J. noted that there is a debate in the jurisprudence about the question that arises on this application, whether an accused person must apply for legal aid before obtaining a return order. This issue did not arise in Rafilovich and Martin J. did not resolve it in her decision. See Rafilovich, at para. 65 and footnote 5.
19Martin J. noted at para. 20 that the Criminal Code does not expressly indicate whether judicially returned funds ought to be subject to a fine instead of forfeiture and considered that resolution of this issue was a matter of statutory interpretation. In her reasons at para. 38, Martin J. identified the statutory objectives of the return provision in s. 462.34(4)(c)(ii) of the Criminal Code as (1) providing access to counsel; and (2) giving meaningful weight to the presumption of innocence. Martin J. held that “these objectives reflect an underlying intention to promote fairness in criminal prosecutions that runs through the proceeds of crime scheme established by Parliament”.
20Martin J. reviewed statements by the Minister of Justice in relation to the proceeds of crime regime in the Criminal Code and addressed the presumption of innocence in the context of this statutory regime, at para. 45:
The Minister’s statements indicate that Parliament was also concerned with the presumption of innocence, “the cornerstone of our criminal justice system” (R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1368). The return provision reflects the fact that, in Canada, property can be seized based only on a reasonable belief it may be proceeds of crime, and it presumptively belongs to a person who is presumed to be innocent (B.A. MacFarlane, R.J. Frater and C. Michaelson, Drug Offences in Canada (4th ed. (loose-leaf), s. 14:180.40.120). Indeed, the accused may never be convicted, or the property may never be proven to be proceeds of crime. Thus, when accused persons spend returned funds on reasonable legal fees, they are spending their own money on their legal defence. Parliament was clearly concerned with the harshness of a scheme that seized the property of persons still presumed to be innocent, and took steps to protect their interests.
21Martin J. held at para. 49 that, while Parliament was clearly motivated by the desire to remove the financial incentive from certain crimes, it also wanted to ensure that accused persons would have access to legal representation and that the presumption of innocence would be protected, in order to maintain a procedure that is fair to the accused. Martin J. considered that these secondary purposes constrain the primary objective of the proceeds of crime regime of ensuring that crime does not pay.
22Martin J. also addressed the argument that unless the judge imposes a fine instead of forfeiture for amounts returned as legal fees, the accused will have received a benefit of which he must be deprived in order to uphold the proceeds of crime regime. Martin J. accepted at para. 64 that in one limited sense, an accused person with access to funds for legal counsel has a benefit that other accused persons may not have but held that this is a benefit which Parliament expressly intended them to have, as is evident from the very existence of the return provision. Martin J. accepted that because the appellant used the returned funds to finance his legal defence, there is less money available to be forfeited to the Crown but held that this by-product of accused persons exercising their rights is not unusual. Martin J. held that this “benefit” is not the kind of benefit that the fine instead of forfeiture provision is aimed at preventing.
23In the result, Martin J. allowed the appeal and set aside the Court of Appeal’s variance of the sentencing judge’s order.
24In my view, the proper balance to be struck between, on one hand, an accused person’s legitimate need for funding for reasonable legal expenses and, on the other hand, the possibility that money which is returned for this purpose may turn out to be the proceeds of crime, should be informed by the Supreme Court of Canada’s decision in Rafilovich.
25On an application for return of seized property to meet reasonable legal expenses, the judge must be satisfied that the applicant has no other assets or means available to meet these expenses. The Criminal Code does not, however, expressly limit the reasonable legal expenses for which the returned funds may be used to the amount of such expenses for which funding would be available under a province’s legal aid plan. Subsection 462.34(5) of the Criminal Code provides that for the purpose of assessing the reasonableness of the legal expenses referred to in subparagraph (4)(c)(ii), the judge shall take into account the legal aid tariff of the province. This provision shows that the reasonable amount of legal expenses to be met by returned property which was seized under the proceeds of crime regime, while informed by the legal aid tariff in a province, is not statutorily limited by this tariff.
26The Applicant is facing serious criminal charges and he wishes to be represented by his counsel of choice who is unwilling to act on a Legal Aid basis. The Applicant wishes to use money which presumptively belongs to him for this purpose. If the Applicant is required to apply for Legal Aid funding as a prerequisite to making an application for the return of the seized funds, and if he is granted funding which qualifies as “other ... means available” for the purpose of meeting reasonable legal expenses under s. 462.34(4) of the Criminal Code, the result will be that, effectively, he will have been deprived of his counsel of choice. Such a result in this case would, in my view, conflict with the statutory objectives of this provision, as identified in Rafilovich, of providing access to counsel and giving meaningful weight to the presumption of innocence.
27It is true that if the seized funds are returned, the Applicant may realize a benefit through his use of funds, which may turn out to be the proceeds of crime, to meet reasonable legal expenses which are higher than legal expenses that could have been funded through Legal Aid. I regard this benefit to be similar to the benefit described by Martin J. in Rafilovich where the accused person used returned funds to finance his legal expenses, resulting in less money available to be forfeited to the Crown. The possibility that the returned money will turn out to be proceeds of crime is a risk that follows from giving effect to the statutory objectives underlying s. 462.34(4) of the Criminal Code.
28I accept, of course, that the fact that Mr. Lafontaine is unwilling to represent the Applicant on a Legal Aid basis does not mean that competent lawyers who would act at Legal Aid rates are unavailable. In this case, however, Mr. Lafontaine has been representing the Applicant on these charges since July 10, 2019 and the Applicant has confidence in his counsel of choice. In Alves, Kurke J. held at para. 29 that on an application of this sort, while an accused person may not have an unfettered choice with respect to counsel, that choice should be respected if it can be reasonably accommodated and is reasonably justified. In my view, in the circumstances, the Applicant’s choice of counsel should be respected.
29For these reasons, I do not require the Applicant to apply for Legal Aid funding as a prerequisite to bringing this application.
Disposition
30I am satisfied that the Applicant should have access to the seized funds for the purpose of meeting his reasonable legal expenses.
31I will address the amount to be returned on the return of this application at which an in camera hearing will be held to determine the reasonableness of the legal expenses. I will receive representations from the Crown as to what would constitute reasonable legal expenses.
Cavanagh J.
Date: March 18, 2020