Re Application under s. 490 of the Criminal Code, 2015 ONCJ 424

Citation: Re Application under s. 490 of the Criminal Code , 2015 ONCJ 424 IN THE MATTER OF an Application under Section 490(10) of the Criminal Code By R.M. and S.T. for the return of cash in the amount of $2105.00 Newmarket Courthouse File No. 14-04065 Ontario Court of Justice Newmarket, Ontario P.N. Bourque J. Heard: July 23, 2015 Judgment: July 23, 2015 APPEARANCES: R.M...................................................................................................................... Self-Represented Ms.

Sun, Duty Counsel........................................................................................................ for S.T. BOURQUE J.: Overview [ 1 ] S.T. and R.M. were seeing each other romantically in April and May of 2014. R.M. alleges that S.T. broke into his home and stole money from him. He called the police and she was arrested, for criminal charges related to his allegations. At the time of her arrest, she had a wallet with various amounts of cash in it totaling $2,105.00. The police seized this money. After some time, the charges against S.T. were withdrawn.

R.M. and S.T. now each bring applications under section 490 (10) for the return of the money. I must determine where it should go. The Law [ 2 ] The applications are under section 490 (10) of the Criminal Code but this is not a criminal proceeding. No one is at risk for being found guilty of any criminal offence. My task is set out in the

section which reads as follows: . . . a person, other than a person who may make an application under subsection (7), who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under

section 489.1 may, at any time. . . apply summarily to. . . a justice. . . f or an order that the thing detained be returned to the applicant. [ 3 ] I believe that the balance of proof upon both of the applicants in this matter is on a balance of probabilities. [1] [ 4 ] In essence, I must determine similar issues (albeit with a different balance of proof) as the criminal matters. S.T. did not plead to and was not found guilty of any criminal offence. She did not enter into a peace bond. The charges were withdrawn by the Crown for their own reasons. There are no issues of estoppel that I can apply either way.

S.T. [ 5 ] . . . is a young woman who was living alone with her child. She states that she met R.M. on the internet in April, 2014 and they began to see each other. She states that he would sometimes give her "gas" money.

She denies that he ever lent her any money. [ 6 ] In her evidence in-chief, she stated that they were having some difficulties but that the defendant had sent her a mother's day text and she was responding and had not broken off with him. [ 7 ] The bulk of her evidence in-chief was her explaining how she had the sum of $2,105.00 in her wallet in the day following when R.M. says that someone broke into his house and stole a briefcase which had about $2,200.00 in it.

She filed a detailed list which was marked as Exhibit 1, which showed that she had these various sums from gifts and loans from her family members and savings of her own. She also filed letters from various family members that attested to lending or giving her various sums near the time the money was found in her wallet.

[ 8 ] I allowed these documents to be filed notwithstanding they were hearsay. I do not place a great deal of weight upon them as, in my opinion, the decision I have to make in this matter is based upon the credibility of S.T. and R.M. [ 9 ] There were some aspects of her evidence that I have concerns with. [ 10 ] S.T. admitted that she had a bank account. I asked why she did not put these sums in her bank account and her reply was that she didn't want to incur bank fees. She however used her bank account regularly on other occasions.

I find this a not convincing explanation. [ 11 ] I also could not but notice in her evidence in-chief that she stated that "he (R.M.) had to prove that it isn't mine as possession is 9/10ths of the law". She also pointed out that his willingness to compromise and her refusal to compromise on any of these issues was somehow proof of the strength of her assertions. [ 12 ] She also spoke of a conversation that she had with R.M. a month or so after the charges were laid against her. She recorded the conversation without his knowledge.

She went to his house and she wanted him to withdraw the charges and she stated that he made remarks that showed that he had set up the break-in himself. I asked her why she had gone to his house to see him when she was under an undertaking to the police to have no contact with him and she stated that she knew it was wrong but needed to get the matter over with. I am concerned that she would so cavalierly break her undertaking. [ 13 ] There is another and more crucial aspect to her evidence which I will refer to below, after I discuss R.M.’s evidence.

R.M. [ 14 ] The witness stated that he is in automotive repair and that he keeps cash in his briefcase in his house. He states that S.T. knew he kept sums of money in the briefcase. He agreed that they had been seeing each other. [ 15 ] He stated that in the late evening hours of May 15, 2014, he got a text from S.T. asking him to come and pick her up at the Newmarket Go Station at midnight. I note he lives in the Mt. Albert area.

He stated that he had never gotten such a message from her before as he usually picked her up or she would drive her ex-boyfriends pick-up truck. [ 16 ] He stated that he went to the train station and waited for her but she did not come. He waited 15 minutes and then drove to his home. He stated that on the way home he saw the pick-up truck of S.T.’s ex-boyfriend at a gas station but did not see anyone at the truck. He did not stop but went home.

When he got home, his door was open and he discovered several things missing including a laptop computer and his briefcase which had the cash and some identification items in it.

He called the police. [ 17 ] He agreed that S.T. came to see him about a month later and he did not disagree that he said some things about arranging for a break-in but he said they were in sarcasm and he believed that she admitted the crime to him. [ 18 ] He stated that he had originally said to the police that there was a passport missing as well but he subsequently found it. [ 19 ] On view, I note that he admitted a potentially damming piece of evidence against him, namely the discussion with S.T. [ 20 ] I generally found that his story made sense and I specifically find that his house was broken into by others and that the items he described, including the money which is in dispute, went missing that evening when he was out going to and from the Newmarket Go Station.

S.T. Reply [ 21 ] After R.M. was finished, I inquired whether S.T. wished to comment under oath about the evidence that R.M. had given, that she had asked him to go to the Go Station the night of the break-in. I advised her that she did not have to but as he had not asked her about that matter in her time in the witness box, she may wish to testify about it. [ 22 ] She did take the witness box and stated that she did indeed send him a text message telling him to pick her up at the Newmarket Go Station at midnight on the 15th of May.

She stated that she was indeed driving her ex-boyfriend's pick-up truck and was at the gas station as described by R.M. Her version of events is that she did send the message and was going in her ex-boyfriend’s' pick- up to meet R.M. at the train station.

She stated that her daughter had been left at her ex-boyfriend's house (he was the father of her child) and she had borrowed the pick-up truck. [ 23 ] She stated that she changed her mind however as she was nearing Newmarket as she believed that R.M. would be angry with her for having her ex-boyfriend's pick up because that would mean that she was still seeing him.

When it was pointed out that R.M. knew they would see each other, because he was the father of her child, she still insisted that was the reason for her non-attendance at the Newmarket Go Station. [ 24 ] In addition she agreed that she was at the gas station with the pick-up truck when it was seen by R.M. She then stated that she had sent R.M. another text message that night explaining why she did not go to the Go Station but it was a false explanation. Conclusion [ 25 ] I must decide the issue of the ownership of this money on the balance of probabilities.

To make that decision, the primary issue to be decided is whether she broke into R.M.’s home or was in any way a party to the break-in. In coming to my conclusion, I must make a finding of credibility. [ 26 ] R.M.'s evidence was not without blemish. He admitted to telling S.T. something afterwards that he now says is not true.

However, I find that for most of his evidence, he was straightforward and was honest in his recitation of the events. [ 27 ] The evidence of S.T. leads me to have serious doubts about her credibility. I find that for the following reasons, I cannot accept her version of the ownership of these monies: (

i) She had no real explanation as to why this almost exact amount of cash was in her possession within hours of the stated loss by R.M. The letters are some explanation but none of them state monies given to her were on the 16th, or the day before. I am also not persuaded by her explanation of why she would keep these different amounts as cash when she was a user of a private bank account. I accept as a possibility that these people may have given her some money. I am not persuaded that the cash in her wallet was the same money.

In any event, I cannot give much weight to the letters which she filed from friends and family as it is not determinative of the final issue, which is, did she take money from R.M. at a break-in; (ii) The most telling factor to me is that she intentionally led him away from his home at midnight on May 15- 16, 2014 on a pretense which I find to be utterly implausible. I find her explanation for not meeting him at the station as she had requested to be totally fanciful and without any tinge of reality.

It is more likely, and indeed plausible, that she performed this subterfuge upon him, which allowed the entry of his house to proceed during the time that she would have known that he was not there. [ 28 ] I therefore find on the balance of probabilities, based on the evidence that I have before me, including all of the documentary exhibits, that monies which were found in the wallet of S.T. within hours of the break-in at R.M.’s home were indeed the proceeds from that break-in. I therefore find that R.M. is entitled to the return of all of the funds which are now being held by the York Regional Police.

Signed: “Justice P.N. Bourque” Released: July 23, 2015