Court File and Parties
COURT FILE NO.: CR-20-50000-032
DATE: 20210715
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KIMANI PHILLIPS
Counsel:
Philip Tsui, for the Crown
Susan von Achten, for the Offender
HEARD: June 30, 2021
REASONS FOR DECISION
M. Dambrot J.
[1] On March 30, 2021, after a trial before me without a jury, I found Kimani Phillips guilty of unlawful possession of a loaded prohibited firearm, specifically a Glock semi-automatic handgun loaded with six cartridges of ammunition, contrary to s. 95(1) of the Criminal Code, R.S.C. 1985, c. C-46. On May 12, 2021, Mr. Phillips pleaded guilty to a breach of a prohibition order, two breaches of a recognizance, and a breach of a probation order. On June 30, 2021, I imposed a total sentence of seven years for these offences.
[2] On May 10, 2021, the Crown brought an application, in writing, for forfeiture of $4,900 in Canadian funds and $325 in American funds seized by the police upon the arrest of the offender on December 5, 2018.[^1]
[3] I heard the forfeiture application immediately after I imposed sentence. Upon hearing the submissions of counsel, I granted the application with reasons to follow. These are those reasons.
THE EVIDENCE AT TRIAL
[4] On Wednesday, December 5, 2018, shortly after 5:00 a.m., members of the Toronto Police Service executed a search warrant at unit 1102, 3969 Kingston Road in Toronto, the residence of Kia Sampson. The offender, who was then and is now Ms. Sampson’s boyfriend, was the target of the warrant. He was spending the night at the apartment and was in bed with Ms. Sampson when the police arrived.
[5] The door of unit 1102 was breached at 5:00 a.m. Within moments of the police entering the unit, the offender threw a loaded Glock semi-automatic handgun out of Ms. Sampson’s bedroom window. An officer stationed outside the building observed the gun fall to the ground. The gun was seized, and three full metal jacket rounds of ammunition and six all-point rounds, one in the chamber and five in the magazine, were removed from the gun.
[6] The police seized a number of other items in Ms. Sampson’s bedroom, including a black scale, a black Bushnell rifle scope, ten cell phones and SIM cards, and a driver’s licence in the name of the offender. In addition, the police found $4,900 in Canadian currency and $325 in American currency secured with an elastic band in Ms. Sampson’s closet.
[7] Ms. Sampson was called as a witness by the Crown. She testified that the money found in her closet belonged to the offender, that the scales were not hers, and that seven of the ten cell phones found in her room were her old phones that she had not gotten around to selling. One was her current phone and two others belonged to Mr. Phillips. I accepted this part of Ms. Sampson’s evidence.
THE EVIDENCE AT THE SENTENCING HEARING
[8] On the sentencing hearing, Crown counsel placed before me the criminal record of the offender and the evidence of D/Sgt. Deyell of the Ontario Provincial Police (“OPP”), who was qualified as an expert in indicia of drug trafficking.
[9] The offender’s criminal record includes two convictions on May 8, 2019 for possessing a Schedule I substance for the purpose of trafficking. These convictions relate to the offender’s possession of 14.75 grams of a mixture of heroin and fentanyl, of a value of $3,500, and 10.5 grams of crystal methamphetamine, of a value of $1,050, on January 4, 2018. These substances were seized in the offender’s bedroom in the apartment he shared with his grandmother, along with $11,900 in cash and three digital scales. The offender was carrying a further $6,000 in an elastic band in one pocket, $256 in another pocket, and a cell phone when he was arrested. He was sentenced to 3 years and 117 days’ imprisonment, in addition to 185 days’ pre-sentence custody (credited as 248 days).
[10] D/Sgt. Deyell has served on the OPP for 22 years, the last 12 in relation to drug enforcement. He has extensive experience in the field as a supervisor and as a senior manager. He is presently a Unit Commander within the Organized Crime Enforcement Bureau, where his duties primarily include supervision of Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), and Criminal Code investigations.
[11] D/Sgt. Deyell was asked to comment on several of the items seized in this case, individually and collectively.
[12] D/Sgt. Deyell testified that the possession of digital scales is a strong indicator of drug trafficking. Scales are an important tool for a drug trafficker; accurate weighing of substances for sale is important to ensure profits. Drug traffickers buy in bulk, then break those bulk amounts down to smaller amounts for sale to their customers. This happens at each level of the drug hierarchy down to the street level. End users do not generally have or use digital scales.
[13] D/Sgt. Deyell testified that the possession of two cell phones is also indicative of drug trafficking. Most everyone uses a cell phone today; however, few have two or more. But it is very common for those involved in drug trafficking to possess one phone strictly for drug trafficking activities.
[14] D/Sgt. Deyell testified that the possession of cash in the amount seized in this case is another strong indicator of drug trafficking. Cash in the context of drug and firearms trafficking allows for quick, clandestine transactions.
[15] D/Sgt. Deyell testified that the possession of a firearm, coupled with the other items, is also a compelling indicator of drug trafficking. The firearms trade is largely supported by the drug trade; drug traffickers seek weapons to protect themselves from other drug traffickers and to display a level of violence in order to prevent robberies and ensure debt payment by customers.
[16] When asked what his opinion was of the scales, cell phones, cash, and loaded firearm seized in this case, having regard to the fact that no drugs were found, D/Sgt. Deyell expressed the view that they were all tools of the drug trade and, in combination, were strong indicators of drug trafficking even in the absence of a drug seizure.
[17] I accepted the evidence of D/Sgt. Deyell for the purposes of sentencing the offender. I found that the items he discussed are undoubtedly strong indicators of drug trafficking. I recognized that in the absence of the seizure of any drugs in the Sampson residence, it was less certain that the items in question, and in particular the gun, were being used for drug trafficking. However, I concluded that this shortcoming in the evidence was more than made up for by a consideration of the offender’s criminal history. In particular, only 11 months earlier, the offender was engaged in trafficking significant quantities of dangerous drugs and had three weigh scales, a cell phone, and large sums of cash in his possession, including $6,000 secured in an elastic band. As a result, having regard to the totality of the evidence, I was satisfied beyond a reasonable doubt that at the time of these offences, the offender continued to be a trafficker of dangerous drugs, and that the paraphernalia found in Ms. Sampson’s bedroom, as well as the gun thrown out the window, were all his and were tools of the drug trade. Specifically, the gun was a weapon the offender possessed to protect himself from other drug traffickers and to display a level of violence in order to prevent robberies and ensure debt payment by customers.
THE FORFEITURE HEARING
[18] The Crown applied for forfeiture of the $4,900 in Canadian currency and $325 in American currency found in Ms. Sampson’s closet on the basis that it was offence-related property and the proceeds of crime. This brings into play two different regimes. I will consider the offence-related property regime first.
Forfeiture of Offence-Related Property
[19] Section 490.1(1) provides for the forfeiture of property when a person is convicted of a Criminal Code offence if the property is established on a balance of probabilities to be “offence-related property” connected to the offence the person is convicted of. “Offence-related property” is defined in s. 2 of the Code and, of relevance here, means property by means or in respect of which an indictable offence under the Criminal Code is committed, or that is intended to be used for committing such an offence. Offence-related property has a similar meaning in the CDSA, but in relation to designated drug offences contrary to that Act.
[20] The Crown’s position in respect of offence-related property is that the money seized is property by means or in respect of which the offender trafficked in drugs or that he intended to use to traffic in drugs. The problem with this position is that drug trafficking offences are housed under the CDSA, not under the Criminal Code. Money that is offence-related property under the CDSA is not available for forfeiture where the offender is convicted only of a Criminal Code offence. Accordingly, this part of the Crown’s application must fail, and I turn to the proceeds of crime regime.
Forfeiture as Proceeds of Crime
[21] Section 462.37(2) of the Criminal Code provides that if an offender is convicted of a designated offence, and the court imposing sentence on that person is satisfied beyond a reasonable doubt that the property is proceeds of crime, the court may make an order of forfeiture in relation to that property. The definition of a “designated offence” in s. 462.3(1) of the Code includes any indictable offence under the Code or other Act of Parliament. “Proceeds of crime” is defined in the same section to include any property obtained or derived directly or indirectly as a result of the commission in Canada of a designated offence. As is apparent, unlike offence-related property, where a person is being sentenced for an indictable offence under the Code, the sentencing judge may order the forfeiture of proceeds of crime that relate to a CDSA offence.
The Evidence That May Be Relied On
[22] Crown counsel sought to rely on the evidence adduced at trial, as well as the evidence of D/Sgt. Deyell adduced at the sentencing hearing, in support of this forfeiture application. Counsel for the offender took the position, unsurprisingly, that the Crown is entitled to rely on the evidence adduced at trial. After all, without the evidence of Ms. Sampson, there is a complete absence of evidence that the offender has any entitlement to money found in her closet. In any event, the case law clearly supports this view, albeit in reference to the forfeiture of offence-related property.
[23] In R. v. Hells Angels Motorcycle Corp. (2009), 2009 53152 (ON SC), 246 C.C.C. (3d) 559 (Ont. S.C.), Pardu J., as she then was, stated, at para. 19, “that the Crown may rely upon the findings and conclusions of the trial judge in support of its application for forfeiture.” Similarly, in R. v. Old Navy Property Corp., 2012 ONSC 6845, at para. 16, Forestell J. stated:
In my view, in forfeiture proceedings, as in other post-conviction proceedings, the trial evidence is available to the judge without there being any requirement for the applicant to recall the evidence. In post-conviction proceedings following a jury verdict however, the available findings are circumscribed by the verdicts.
[24] See also R. v. Myles, 2012 ONSC 6772, at para. 12.
[25] Although counsel for the offender took the position that the Crown is entitled to rely on the evidence adduced at trial on the forfeiture application, she argued that the Crown cannot rely on the evidence adduced at the sentencing hearing. She relied on the decision of the Nova Scotia Court of Appeal in R. v. Faulkner, 2007 NBCA 47, in support of her position. Faulkner provides no support for this submission.
[26] I note, first of all, that Faulkner involved an application for forfeiture of offence-related property, and not the proceeds of crime. The court was not considering the latter, and there are significant differences between the two regimes. Section 490.1 of the Code creates a freestanding forfeiture procedure in the case of offence-related property where a person has been found guilty of an indictable offence. The application judge need not be the trial judge. On the other hand, s. 462.37(2) of the Code places the jurisdiction to forfeit proceeds of crime in the hands of the court imposing sentence. If the court imposing sentence must also decide the question of forfeiture, then there can be no reason why that judge would not consider the evidence adduced on the sentencing hearing. In any event, in my view the offender’s argument misconceives what Faulkner actually decided.
[27] In Faulkner, the sentencing judge received otherwise inadmissible hearsay evidence, as the court is permitted by s. 723(5) of the Code to do. The judge then used that evidence to decide that an order of forfeiture should be made. The Court of Appeal set aside the order and concluded that even where a forfeiture proceeding for offence-related property is heard together with sentencing, it is not part of the sentencing hearing. As a result, s. 723(5) has no application to a forfeiture proceeding and otherwise inadmissible hearsay evidence cannot be used to decide whether or not to order forfeiture. The Court of Appeal stated, at para. 31, that on an application for forfeiture of offence-related property, the evidence “will, in the overwhelming majority of cases, consist entirely of the evidence produced at trial. Needless to say, that body of evidence should not feature any inadmissible hearsay.”
[28] All I take from Faulkner is that to the extent that otherwise inadmissible hearsay evidence is adduced at a sentencing hearing, it cannot be considered in respect of forfeiture. I see no reason why evidence adduced at a sentencing hearing that is admissible according to the ordinary rules of evidence cannot be considered on a forfeiture application.
[29] In this case, the only evidence adduced at the sentencing hearing that the accused argued should not be considered on the issue of forfeiture is the expert evidence of D/Sgt. Deyell. That evidence is not otherwise inadmissible hearsay evidence. It is admissible opinion evidence testified to by a witness who was qualified to give it. Even if the reasoning in Faulkner applies to an application for forfeiture of proceeds of crime, it would not disentitle the Crown to rely on the evidence of D/Sgt. Deyell.
The Seized Money Was the Proceeds of Crime
[30] I turn next to whether the Crown has established, beyond a reasonable doubt, that the seized money was the proceeds of crime.
[31] I concluded, in my reasons for sentence, that the scales, cell phones, cash, and loaded firearm seized in this case were all tools of the drug trade and, in combination, strong indicators of drug trafficking even in the absence of a drug seizure. Based on the totality of the evidence in this case, including the expert testimony and the accused’s criminal history – in particular, the fact that only 11 months earlier, he was engaged in trafficking significant quantities of dangerous drugs and had 3 weigh scales, a cell phone, and large sums of cash in his possession, including $6,000 secured in an elastic band – I was satisfied beyond a reasonable doubt that at the time of these offences, the offender continued to be a trafficker of dangerous drugs, and that the paraphernalia found in Ms. Sampson’s bedroom, as well as the gun thrown out the window, were all his and were tools of the drug trade.
[32] I also concluded in my reasons for sentence that the offender’s gun was a weapon that he possessed to protect himself from other drug traffickers and to display a level of violence in order to prevent robberies and ensure debt payment by customers. However, I did not make any specific finding about the money other than that it was a tool of the drug trade and an indicia of drug trafficking. I do so now. I find, beyond a reasonable doubt, that the money was the proceeds of drug trafficking. I reach this conclusion having regard to the association of the money with other drug trafficking paraphernalia, the offender’s prior drug trafficking, the way the money was packaged, and the similarity of that packaging to the money seized on the prior occasion. I have considered, as well, that there is no evidence the offender had any other source of funds, except, perhaps, the commission of robbery offences, given that he was convicted of offences that involved a robbery in April 2017.
DISPOSITION
[33] For these reasons, pursuant to s. 462.37 of the Criminal Code, I order the $4,900 in Canadian funds and $325 in American funds seized by the police upon the arrest of the offender on December 5, 2018 be forfeited to Her Majesty the Queen in right of Ontario to be disposed of as the Attorney General for the Province of Ontario directs, or otherwise dealt with in accordance with the law.
M. Dambrot J.
Released: July 15, 2021
COURT FILE NO.: CR-20-50000-032
DATE: 20210715
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KIMANI PHILLIPS
REASONS FOR DECISION
DAMBROT J.
RELEASED: July 15, 2021
[^1]: The Crown also sought an order of forfeiture of several other items seized on December 5, 2018, specifically digital scales, the firearm, and the ammunition, and an order for the return to the offender of a Bushnell scope and various documents that were also seized on that date. These orders were made on consent.