Court File and Parties

COURT FILE NO.: 16092/23 DATE: 20230330

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – CORY TRUNKS

COUNSEL: S. Egan and M. Elias, for the Crown Anthony G. Bryant, for Cory Trunks

HEARD: March 24, 2023

J. SPEYER J.

JUDGMENT

[1] Mr. Trunks applies for an Order under sections 462.34(1), 462.34(4) and 462.341 of the Criminal Code, permitting him to have access to property seized by the police to pay the reasonable legal expenses of his defence of the charges against him.

[2] Mr. Trunks is charged with numerous offences under the Controlled Drugs and Substances Act and the Criminal Code of Canada. The offences charge the Applicant with being in possession of drugs for the purpose of trafficking, possession of proceeds of crime and multiple weapons offences. The subject of the possession of proceeds of crime charge is cash in the amount of $167,000 found in vacuum sealed packaging in an apartment where Mr. Trunks is alleges to have resided. Mr. Trunks seeks the release of those monies to satisfy accounts for legal fees and disbursements tendered by Mr. Bryant in relation to legal services provided by Mr. Bryant on behalf of Mr. Trunks.

[3] The Crown opposes the application. The Crown submits that Mr. Trunks has not demonstrated that he has no other means or assets available to retain counsel to act in his defence.

[4] On an application under section 462.34(4), the applicant must establish, on a balance of probabilities, that:

(a) He or she has an interest in the funds (section 462.34(1));

(b) He or she has no other assets or means available for the purpose of meeting his or her reasonable living or legal expenses (section 462.34(4)(c)); and,

(c) No other person appears to be the lawful owner of or lawfully entitled to possession of the funds (section 462.34(4)(c)).

See: R. v. K.K., 2021 ONSC 4775, at para. 20.

[5] In this case Mr. Trunks asserts an interest in the seized funds. While his son lived in the apartment with him, his son testified on the application that he was not aware that the cash was in the apartment and that he is not lawfully entitled to possession of funds. I believe him and find that only Mr. Trunks has an interested in the funds, and that no other person appears to be the lawful owner or of lawfully entitled to possession of the funds.

[6] That leaves for considerations whether Mr. Trunks has established, on a balance of probabilities, that he has no other assets or means available for the purpose of meeting his reasonable legal expenses. I find that he has not.

[7] While counsel’s oral submissions at the hearing of this matter were focussed on what assets Mr. Trunks had available to him pay counsel’s retainer, the factual landscape of this application changed materially by an agreed statement of facts that I was provided with through the trial co-ordinator several days after submissions were made.

[8] The agreed statement of facts, dated March 27, 2023, provides that Cory Trunks did apply for and was granted Legal Aid while he was in custody. His client ID was 1550963. During the hearing I was advised that Mr. Trunks was arrested on or about April 29, 2022, and was released on bail on November 26, 2022. Therefore, Mr. Trunks was granted Legal Aid before November 26, 2022. The affidavit filed by Mr. Trunks in support of this application does not disclose the fact that he applied for and was granted Legal Aid.

[9] There is no evidence before me as to any efforts made by Mr. Trunks to retain counsel who would accept the Legal Aid certificate. Instead, it appears that Mr. Trunks seeks to retain Mr. Bryant, who will not accept the certificate, and will act for Mr. Trunks only if he is privately retained. The failure to disclose this material fact causes me concern regarding the veracity of other information contained in the affidavit.

[10] The agreed statement of facts also provides that Mr. Trunks is currently receiving social assistance in the amount of $643.00 per month, and that his TD bank account is closed.

[11] Because legal aid funding is available for Mr. Trunks’ defence, he has means available to meet the reasonable legal expenses he will incur to defend the charges against him.

[12] In R. v. Wilson, [1993] O.J. No. 2523 (C.A.), at para. 47, Doherty J.A. described the interests to be balanced on an application to release seized funds to pay for legal expenses:

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 commission of a criminal offence.

[13] In R. v. Rafilovich, 2019 SCC 51, at para. 65, Martin, J. noted that Parliament has balanced the multiple objectives of the proceeds of crime legislation by tightly controlling the extent to which accused persons may be permitted to benefit from seized funds that may be forfeited. Martin J. noted that:

The Code requires applicants to show that they have no other means to pay a lawyer before a judge returns funds for that purpose. "Other means" has been interpreted broadly to include support entitlements or other sources of financial assistance (R. v. Keating (1997), 1997 NSCA 135, 159 N.S.R. (2d) 357 (C.A.), at para. 28), help from family members (R. v. Hobeika, 2014 ONSC 5453, at para. 24; R. v. Kizir, 2014 ONSC 1676, 304 C.R.R. (2d) 287, at paras. 16-18), as well as the accused's access to credit, so long as that credit is capable of being serviced (R. v. Ro, [2006] O.J. No. 3347 (Sup. Ct.), at paras. 35-39). … The legal expenses return provision, therefore, achieves a balance by providing a safety valve for a narrow category of accused persons in need while still depriving offenders from accessing the proceeds of crime in most other cases.

[14] Mr. Trunks has been approved for state-funded legal assistance. He does not need to benefit from money which may turn out to be property acquired through the commission of a criminal offence in order to make full answer and defence to the charges he faces. He is not within that narrow category of accused persons in need.

[15] The application is dismissed.

The Honourable Madam Justice Jocelyn Speyer

Released: March 30, 2023