Court File and Parties
COURT FILE NO.: CR-10-0024-00/CR-12-0024-00 DATE: 2023-03-30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
His Majesty the King D. Hayton, for the Crown
- and -
Marcel Breton M. Johnston, for Marcel Breton Accused
HEARD: January 24 & 25, 2023 at Thunder Bay, Ontario
Mr. Justice F.B. Fitzpatrick
Decision on Forfeiture Application
[1] The Crown seeks orders pursuant to s. 462.43 and 490(9) of the Criminal Code for the forfeiture of property. Mr. Breton counters by applying to have the physical property, the subsequent opinion evidence regarding it and an agreed statement of facts concerning it, excluded from the hearing on the basis of section 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”).
Background
[2] This case has not proceeded in what would be called a textbook manner. I have written many decisions in this matter. A list of the decisions in chronological order are attached as Exhibit 1 to these reasons. All of what has gone before informs me in coming to my decision. I will later recite some general background and discuss some particular context relevant to this decision.
[3] There are two most significant previous judgments as it relates to the decision in this matter. The first is R. v. Breton, 2021 ONSC 7312 delivered November 3, 2021. In that decision I made findings of fact. I made findings that Mr. Breton’s rights under section 8 of the Charter were violated by the manner in which a search of his home was conducted by police on December 1 and 2, 2009. I found the police were entitled by warrant to search Mr. Breton, and his residence and the curtilage of his residence located on a large rural property on the outskirts of Thunder Bay to attempt to locate an illegal .22 caliber handgun. However, I found that police had conducted a warrantless search of outbuildings located in the proximity of Mr. Breton’s residence. I also found a second warrant obtained by police on December 2, 2009, was not lawfully obtained.
[4] An application to exclude the evidence based on section 24(2) of the Charter proceeded in March 2022. On March 22 (21), 2022 I released R. v. Breton, 2022 ONSC 1762. In that decision I agreed with the defence submissions and determined to exclude all of the Crown’s evidence from Mr. Breton’s trial on the basis of a section 24(2) analysis. Following that ruling the Crown had no evidence to call at trial. Therefore Mr. Breton was found not guilty of all outstanding charges. The Crown then advised of its intention to bring this forfeiture application. Several case conferences were held. Over the course of that process, the items of property sought to be forfeited to the Crown were significantly reduced.
[5] All that is left now is physical paper money. A lot of it. Over 1.2 million dollars (the Cash).
[6] It is conceded by the Crown that all the Cash at issue was seized by police in violation of a variety of Mr. Breton’s Charter rights. The parties agree the leading case governing the disposition of this application (and my previous decisions relating to Mr. Breton) to exclude evidence is the majority decision of the Supreme Court of Canada in R v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353.
The Grant test
[7] Paragraphs 67 through 70 of Grant in the main encapsulates the principles guiding the Supreme Court, binding on me, in conducting a section 24(2) analysis. These paragraphs emphasize that the focus of section 24(2) is not only long-term, but also prospective and societal. A breach of the Charter is inherently damaging to the repute of the justice system; s. 24(2) dictates that evidence obtained through such a breach do no further damage.
[8] Grant directs a trier of fact to conduct an analysis. Nothing happens “automatically”. It is an analysis that emphasizes “all the circumstances” and balances interests of the accused and society. It is context driven. It examines, focuses and balances the results of the outcome with the events leading to the question of whether evidence should be admitted in the face of breaches of Charter rights. It focuses on remedy.
[9] I see an accused’s interest and societies’ interest as different when the question of guilt or innocence of an accused is “off the table”. This is the case where the lawful possession of property is the central concern in a criminal proceeding. A criminal trial where guilt or innocence is at issue creates the possibility that a person could be deprived of their liberty or be stained with a criminal record. These are both long term, constantly impactful and deeply personal events.
[10] Forfeiture also carries personal consequences for an individual and can be punitive in impact: Vellone c. R, 2020 QCCA 665 at para. 52, leave to appeal denied, [2020] SCCA. No. 237 (“Vellone”), citing R. v. Craig, 2009 SCC 23 at para 34. However, the nature of a forfeiture application in this case, as in Vellone, is aimed at removing potential offence-related property from circulation. It is not aimed at imposing a sanction: Vellone at para. 41. I note that Mr. Breton’s liberty is not at stake.
[11] This does not mean the Charter protected interests of a person can be said to have changed or are contracting where the issue is forfeiture. The Charter breaches happened. In this case the actions are not going to be revisited to obtain a different finding that breaches did not occur. What is at issue in this application is the question of remedy for those breaches.
[12] Also, just because the physical items at issue in this forfeiture application may have been derived from crime does not automatically mean they are to be included in evidence concerning their disposition. A process of analysis is mandated by section 24(2).
Decision
[13] In R. v. Breton, ONSC 1762 I made factual findings. Based on those findings I did a section 24(2) analysis about the physical trial evidence using the three-step process adopted by Grant. In this matter the Crown does not seriously contest my findings from the trial under the first two branches of the Grant test. In this application, the Crown argues that the state actions “fall in the mid-range of seriousness”. I am not persuaded by that particular aspect of the Crown’s argument. I adopt my reasoning in R v. Breton, 2022 ONSC 1762 at paras 27 through 48 concerning the nature of the Charter breaches as they impact the first two branches of the analysis. In my view there was serious infringing state conduct. There was a serious impact on Mr. Breton’s reasonable expectation of privacy. This result would militate in favour of exclusion of the evidence on this forfeiture application.
[14] The focus of the Crown’s opposition to the exclusion application rested on an argument involving the third branch of the Grant test. The Crown argues that as Mr. Breton’s degree of personal jeopardy in this application is different, this is a contextual difference that allows me to do a new section 24(2) analysis concerning the Cash.
[15] Mr. Breton argues there is no principled basis to revisit the section 24(2) analysis that I have already completed.
[16] I am persuaded by the Crown’s argument that I can in fact revisit the issue of the admissibility of the Cash and subsequent evidence concerning it under section 24(2) for reasons that follow.
[17] I agree with the Crown submission that a forfeiture application is a different proceeding than a trial where the liberty of the accused is the ultimate issue. The Crown relies on the Quebec Court of Appeal’s decision in Vellone. In that decision the appellate court agreed with a trial decision of Lanctot J.C.Q. Directrice des pursuits criminelles et penales c. Vellone 2019 QCCQ 11429. The decision of Lanctot J.C.Q. held that a judgment rendered during a criminal trial establishing that an accused’s rights were infringed and ordering evidence excluded does not necessarily mean that the same evidence should be excluded at a subsequent hearing. The facts of that trial decision were different from those before me. Mr. Breton urges that difference is sufficient to diminish the persuasiveness of the Vellone decision. I disagree.
[18] Lanctot J.C.Q. had made a finding of guilt on one count related to drugs found in a car when Vellone was stopped by police. The property that was subject of the forfeiture application was a house, also where drugs and money were found, but where those particular items were excluded from trial. In my view, this factual difference is not sufficient to distinguish the persuasive value of the Vellone decision. I see the Vellone decision as standing for the proposition that recognizes the difference between a trial where the liberty of the subject is at risk, and a forfeiture application where disposition of property is at issue.
[19] In this case I agree with the Crown submission that a change in interest and effect of outcome allows the participants the opportunity to have the question reevaluated. I see the forfeiture application as a different process from the criminal trial. The balancing exercise and the reference to context called for by Grant must have some ongoing meaning. Section 24(2) of Charter is there for a reason. The section evidences a constitutional policy decision that in a criminal proceeding there was to be no automatic exclusion from proceedings of evidence obtained through a breach of the Charter. In this case I see the context as having changed.
[20] Possession of property is no doubt integral to personal autonomy and privacy which are Charter-protected. However, I do see the “risk of result” as being sufficiently different as to permit either party to a criminal proceeding to advocate for inclusion or exclusion of evidence in a related, but different proceeding such as the one presently before me.
[21] I agree with the Crown submission that the focus of this type of hearing is different than a trial. It is a significantly different context in which the Cash and the subsequent evidence is being considered.
[22] I agree with the Crown submission that the forfeiture application is focused on removing potential proceeds of crime from circulation. It is not a question of relying on the principle of “crime does not pay”. Mr. Breton is not a criminal. However, this inquiry is about the operation of sections 463.43 and 490(9). In this matter there is practical reality that things have been seized and now they have to go somewhere as the trial is concluded. I see those sections as being a framework which Parliament created to, among other things, determine if items seized under warrant or special warrant were in the first place lawfully possessed. It is a necessary part of the practical process that the work done by police in the investigation and prosecution of crime on occasion necessitates the taking physical possession of physical things. That process has occurred here.
[23] The necessity of maintaining hold of the Cash for the purposes of determining Mr. Breton’s guilt or innocence is now at an end. However, the provisions of sections 463.43 and 490(9) expressly direct an inquiry as to whether independent of the criminal process, the property was lawfully or unlawfully possessed at the time it was seized under judicial authority. In my view this means the inquiry at this point is not driven by how the forfeiture would affect the person who purports to own the physical property, but rather it focuses on the status of the property at first instance. In my view there is an underlying policy expression that regardless of how property came into the possession of the Court, if it was unlawfully held at first instance, society has the right to consider if that possession should be allowed to continue by the person who had it when it was taken under warrant.
[24] I have found that under the first two grounds of the Grant test the manner of how the evidence was obtained was sufficiently serious to militate in favour of excluding the evidence. I said in my original decision that under the third branch of the Grant test, the evidence was sufficiently reliable and of such importance to the Crown case that it would militate in favour of inclusion. However, the balancing in the context of a trial lead to a decision to exclude.
[25] In my view, this application is different.
[26] I agree with the Crown submission that the considerations of the third ground of the Grant test are taking place in a different context where Mr. Breton’s liberty is not at issue. Grant tells us Section 24(2) is all about context. The Charter does not take an absolute approach to evidence obtained in breach of the Charter. It is not automatically excluded. Clearly there is a presumption in favour of exclusion but the language of 24(2) and all the subsequent jurisprudence directs analysis of the case before the court. I see the need to do the analysis in this case.
[27] I note that Mr. Breton has obtained remedy for breaches of his Charter rights in the trial context. It was a significant remedy. The evidence was excluded from the trial. In Vellone, the trial judge found the appellant already benefitted one time from the exclusion of the evidence. The trial judge determined that to exclude this evidence again during the application for forfeiture of offence-related property would bring the administration of justice into disrepute: Vellone at para. 62.
[28] Over $1.2M was recovered during the search of Mr. Breton’s home. During the forfeiture hearing, Detective Chris Rhone of the Ottawa Police Service and the Provincial Asset Forfeiture Unit provided an expert opinion regarding bundled and bulk currency and the use of nominees in proceeds of crime cases. Detective Rhone testified that this was the largest sum of money he had encountered in his career.
[29] I know the Cash was hidden underground. It was organized in a particular way. Large bundles constituting big amounts are present. The organization suggests the ability for it to be used for separate transactions which could be conducted in the thousands of dollars. The majority of the bills were $20’s. The actual bills being dated at different times and consisting of different series issued by the Bank of Canada potentially demonstrate that the Cash was accumulated over time. I see it as a matter of common sense there is something out of the ordinary about a plastic tub buried in an outbuilding garage with over a million dollars in it. In my view the nature of this evidence would raise in the reasonable person’s mind a serious question as to whether this property was lawfully possessed. Exclusion of this evidence from an adjudicative process is not a result which would be uninteresting or unimpactful to an average person properly informed on the repute of the justice system.
[30] I agree with the submission of the Crown that given the nature of Cash and the corresponding Crown evidence about it, its exclusion in this process would bring the administration of justice in to further disrepute. This is a different result than I previously concluded. In my view as the context is different, the results would be different and Mr. Breton has previously obtained remedy for these breaches means society does have an interest in the adjudication of the question of whether Mr. Breton lawfully possessed the Cash before it was seized. I say this because the Cash is not a benign item. It has an ongoing very valuable and diverse possibility of use. It can be put to another purpose which could do potentially greater harm to the society in a way that the trucks or lawnmowers that were (but are no longer) subject of this application could do. Cash is still currency of the realm. It has great value. It is easily traded for other items of value. It is why it was invented.
[31] In my view sections 463.43 and 490(9) directs that if the Cash was lawfully possessed by Mr. Breton, it should be returned to him. If it was not lawfully possessed by Mr. Breton it should not. That is still an issue to be decided. However, I see the nature of the items being of a quality that its exclusion from the process of this application to determine if it was lawfully possessed overbears the damage already done to the reputation of the justice system by the Charter infringing conduct that led to it being in the possession of the Court in the first place.
[32] In my view, society would want this question decided. This militates in favour of inclusion of this evidence. A reasonable person would ask how Mr. Breton came into possession of such a large amount of cash even back in 2009. In this case, the Crown alleges that the Cash was obtained unlawfully. I have not heard from Mr. Breton yet. We are not yet at that point.
[33] A reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would not, in my opinion, conclude that the admission of the evidence would bring the administration of justice into disrepute.
[34] In my view, the exclusion of this Cash and the subsequent evidence concerning it in an application directed at determination of the nature of property under the Court’s direction would bring the administration of justice into disrepute. This degree of disrepute overbears the otherwise egregious Charter breaching way it was placed under the supervision of the Court in the first place. I find after considering the matter using a section 24(2) Grant analysis that this evidence should be admitted into evidence on this application.
[35] The Defence application to exclude the Cash, the Crown opinion evidence concerning it and the agreed statement of fact is hereby dismissed.
[36] Counsel will now arrange with the trial coordinator a date for a brief case conference to discuss with me the steps required to complete the Crown forfeiture application.
“original signed by” The Hon. Mr. Justice F.B. Fitzpatrick
Released: March 30, 2023