COURT FILE NO.: CR-18-17
DATE: 2022-01-13
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. William Gillen
BEFORE: Heeney J.
COUNSEL: Michael Smith, Counsel, for the Federal Crown (Applicant)
David Burke and Jeremy Naresh, Counsel, for the Accused (Respondent)
HEARD: January 11, 2022 at Woodstock
ENDORSEMENT
[1] The accused was convicted by a jury on December 20, 2019 of four counts under the Controlled Drugs and Substances Act. They consisted of one count of trafficking in fentanyl, contrary to s. 5(1), and three counts of possession for the purpose of trafficking contrary to s. 5(2) of the CDSA. Two of those latter counts involved fentanyl and one involved cocaine. The offence date was July 27, 2017.
[2] The Crown now applies for a forfeiture order relating to two vehicles owned by the accused, pursuant to s. 16(1) of the CDSA. That subsection provides as follows:
16(1) Subject to sections 18 to 19.1, if a person is convicted, or discharged under section 730 of the Criminal Code, of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that non-chemical offence-related property is related to the commission of the offence, the court shall
(a) if the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province to be disposed of or otherwise dealt with in accordance with the law by the Attorney General or Solicitor General of that province; and
(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada to be disposed of or otherwise dealt with in accordance with the law by the member of the Queen's Privy Council for Canada that is designated by the Governor in Council for the purposes of this paragraph.
[3] The first vehicle is a 2005 Chevrolet Malibu, Ontario license plate #BZWJ778. The Crown’s case concerning this vehicle is overwhelming, and defence counsel rightly conceded that. Police had set up surveillance and, on July 27, 2017 at approximately 13:57 hrs, observed the accused stop this vehicle on the west side of Stafford St.. He was met shortly thereafter by a male later identified as Dan Thompson. Thompson was observed leaning into the vehicle, and then ran to the townhouses on the east side of the road. Gillen remained parked, and Thompson returned a couple of minutes later and entered the Malibu. Police believed that a drug transaction was taking place and approached the vehicle to arrest both parties.
[4] Upon arresting both the accused and Thomson, police observed $450 in cash loosely scattered on Thompson’s lap. A baggie believed to be heroin, later valued at $760, was seen in plain view on the console. The accused was searched and had a baggie with .28 g of what was believed to be heroin in his pocket, along with $130 in Canadian currency in his wallet. A search of the vehicle yielded a pill bottle with 4 small dime bags of suspected heroin, and an iPhone was found in the console, with numerous messages related to drug trafficking on it. Upon later analysis, the drugs found in the car and on the accused’s person turned out to be a heroin/fentanyl mix.
[5] On a balance of probabilities I conclude that the Malibu was being used as the venue for a drug transaction and, given the presence of drugs in readily saleable quantities in the vehicle and the cash scattered all over Thompson’s lap, I conclude that the police had interrupted a drug transaction in process in the Malibu. In addition, the vehicle was being used as a storage place for the drugs found during the search. Accordingly, the Crown has more than satisfied their onus of proving that the Malibu was offence-related property.
[6] The Crown concedes that the case regarding the second vehicle, a 2017 GMC Sierra pickup truck, Ontario license # AE11480, is weaker that the one involving the Malibu, but submits that it still satisfies the onus of proof. Here, the evidence relied upon stems from surveillance of the accused while he was driving the Sierra. On June 27, 2017 the accused pulled the pickup into the parking lot at Good Life Fitness/Zellers, at 15:07. He waited for 3 minutes until a female identified as Cheyanne Helmuth, who is a known member of the drug subculture in Woodstock, arrived and got into the pickup. At 15:14, a mere 4 minutes later, Helmuth got out of the truck. At 15:15 the accused drove away, never having transacted any business at Goodlife or Zellers or any other business serviced by that parking lot. The only business transacted was, apparently, with Cheyanne Helmuth.
[7] A couple of minutes later, at 15:18, the accused pulled up to the curb at the Woodstock Library. Josh Rowe came to the vehicle and opened the passenger door and entered the pickup. Rowe is also a known member of the drug subculture in Woodstock. One minute later, at 15:19, Rowe exited the vehicle and left. The accused drove away.
[8] A few minutes later, at 15:24, the accused drove the pickup into the rear lot at Crabby Joes Restaurant. Josh Odorico, who is also a known member of the drug subculture in Woodstock, entered the vehicle. Three minutes later, at 15:27, Odorico exited the vehicle, and the accused drove away.
[9] In my view, the evidence as to those 3 short meetings with known members of the Woodstock drug subculture is circumstantial evidence that drug transactions probably took place on each occasion. It is not direct evidence, and I agree with defence counsel that there were no observations of a handover of cash or suspected drugs, but that is not surprising when the transaction is observed by a surveillance officer from some distance away, and when the transaction takes place inside a vehicle. All the officer could see would be whatever was visible through the windows.
[10] The circumstantial evidence that leads to this conclusion is, first, that on each occasion the person he met with was a known member of the drug subculture. Second, there was no apparent reason for the accused to have driven his pickup truck to that location and to have parked it, except to wait for these people to arrive. He did not, for example, transact any business at any legitimate business located at any of these three places. He simply stopped, waited for the person to arrive, the person got in the vehicle, then got out of the vehicle a short time later, then the accused drove away. Clearly the object of the accused stopping the vehicle was specifically to meet these individuals.
[11] Third, these were not chance encounters. They have all the hallmarks of being pre-arranged, which is exactly what would happen in a prearranged drug deal. These individuals were not, for example, just haphazardly walking by and stopped to chat. He went to a specific location, stopped and waited in his vehicle until they arrived and got into the vehicle, and left as soon as they exited the vehicle. Clearly the meeting was the purpose for the stop.
[12] Fourth, it is a fact that almost exactly one month later the accused did carry out a drug transaction in a vehicle, although it was a different vehicle.
[13] If the standard of proof was a balance of probabilities I would have found that it was more probable than not that these three meetings were drug transactions, in which the Sierra was used as the means by which the accused transported himself to the scene of the transaction, and was used as the venue for the transactions themselves. However, that is not the applicable standard of proof.
[14] Subsection 16(2) of the CDSA provides as follows:
16(2) Subject to sections 18 to 19.1, if the evidence does not establish to the satisfaction of the court that property in respect of which an order of forfeiture would otherwise be made under subsection (1) is related to the commission of the designated substance offence of which a person is convicted or discharged, but the court is satisfied, beyond a reasonable doubt, that the property is non-chemical offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.
[15] Subsection 16(1) applies where a person is convicted of an offence, and the offence-related property “is related to the commission of the offence”. However, subsection 16(2) applies where the property is not related to the designated substance offence of which the person is convicted. In such a case, the court may order forfeiture if the court is satisfied, beyond a reasonable doubt, that the property is non-chemical offence-related property.
[16] Abella J. made this clear in R. v. Craig, 2009 SCC 23, [2009] 1 SCR 762, at para. 42, where she writes that, “[u]nder s. 16(2), even if certain property is not related to the designated substance offence for which an offender was convicted, forfeiture may nevertheless be ordered if the property can be established to be offence-related beyond a reasonable doubt.”
[17] Subsection 16(2) clearly applies here. The Sierra pickup was used by the accused on June 27, 2017, when the three suspicious meetings took place. While the surveillance of those meetings formed part of the investigation that led to the arrest of the accused on July 27, 2017, no charges were laid in connection with the activities of June 27. The Sierra pickup truck had no connection to the events of July 27 and the convictions that arose from those events. Accordingly, the onus is on the Crown to prove, beyond a reasonable doubt, that the accused was engaged in the commission of a designated substance offence on June 17 in order to obtain an order for forfeiture.
[18] The Crown conceded that, even on a balance of probabilities standard, the case for forfeiture of the Sierra pickup was not strong. In my view, the evidence, while highly suspicious and arguably supporting a conclusion that the accused was probably selling drugs to these individuals, falls far short of proving, beyond a reasonable doubt, that the accused was engaged in trafficking designated substances on June 17.
[19] Accordingly, a forfeiture order will issue with respect to the Malibu. The Crown’s application with respect to the GMC Sierra pickup truck is dismissed.
Mr. Justice T. A. Heeney
Date: January 13, 2022