IN THE MATTER of Gérald Thériault, Karine Levesque v. a Warrant to Search issued pursuant to section 11 of the, 2015 NBPC 9

R. v. Thériault et al 2015 NBPC 09 05876510 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT JUDICIAL DISTRICT OF CAMPBELLTON BETWEEN: IN THE MATTER of Gérald Thériault, Karine Levesque and a Warrant to Search issued pursuant to

section 11 of the Controlled Drugs and Substances Act and An Application for an Order for further detention of things seized pursuant to s. 490(2) (

a) of the Criminal Code of Canada DECISION ON APPLICATION DATE OF HEARING : October 8 th , 2015 DATE OF DECISION : October 26 th , 2015 PLACE: Campbellton, New Brunswick APPEARANCES: François Doucet, for the Attorney General of Canada;

Leslie Matchim, for Gérald Thériault and Karine Lévesque SIVRET, P.C.J., [ 1 ] The Attorney General of Canada is seeking an order for further detention of things seized at the time a Warrant to Search was executed at the residence and real property used by Gerald Thériault situated in Val D’Amour, New Brunswick. [ 2 ] Gerald Thériault is opposing the Attorney General Application and the Attorney General confirmed that the Application is no longer relevant to Karine Levesque.

THE FACTS [ 3 ] A Warrant to Search is issued on March 30 th , 2015 by Judge Ronald LeBlanc in Bathurst. [ 4 ] A Report to a Justice, Form 5.2, is signed by a peace officer on May 5 th , 2015 and received by a judge on May 7 th , 2015. [ 5 ] An Order of Detention pursuant to s. 490(1)(

b) is issued on May 7 th , 2015 authorizing detention of things seized from April 1 st , 2015 to July 1 st , 2015. [ 6 ] An Order for further detention is issued on July 6 th , 2015 with the consent of Gérald Thériault. This Order authorized the detention until October 1 st , 2015. [ 7 ] On September 5 th , 2015, a Notice of Application is signed by a peace officer seeking further detention of the same items seized. [ 8 ] That Notice of Application is filed with the Court and the hearing of the Application is scheduled for September 28 th , 2015 at 11:00 a.m.

The Notice is then served personally on Gérald Thériault on September 16 th , 2015. [ 9 ] On September 22 nd , 2015, a replacement Notice of Application is filed with the Court as the date of the hearing is now changed to September 30 th , 2015 at 9:30 a.m. [ 10 ] On September 30 th , 2015, counsel for Gérald Thériault and counsel for the Attorney General are both present in court and the hearing is adjourned to October 8 th , 2015 at 9:30 a.m. to allow parties to exchange relevant documents. [ 11 ] On October 8 th , 2015, the Court heard the positions of both parties and reserved the decision until October 26 th , 2015.

POSITION OF THE PARTIES [ 12 ] The Attorney General is seeking further detention of the things seized and relies on the Affidavit of Caroline Dinel, a member of the RCMP. In her Affidavit, Caroline Dinel said as follows in order to justify the need of an Order for further detention:

10. THAT having regard to the nature and extent of the investigation, an Order for further detention as requested, is warranted on the following grounds: /Quand tenant compte tenu de la nature et de l’ampleur de l’enquête, une demande pour une detention prolongée est demandée et se justifie par les motifs suivants: 10.1 Qu’à ce stade-ci de l’enquête, il est impossible de déposer des accusations contre Gérald Thériault, le suspect, car l’enquête reliée à cette perquisition est complexe et n’est pas arrivé à terme.

Avant de pourvoir fournir les informations du dossier aux accusés, tous les documents doivent être revus et caviardés pour la protection des témoins, des informateurs, des techniques d’enquêtes policières ainsi que des mesures administratives policières. Je crois que l’enquête arrivera à terme dans les 3 prochains mois. [ 13 ] According to the Attorney General, the evidence offered by Ms.

Dinel is sufficient to meet the burden of proof required under section 490(2) of the Criminal Code of Canada and, therefore, the Court should order further detention. [ 14 ] Counsel for Gérald Thériault disagrees and argues that the Court has no jurisdiction to hear this Application because the hearing took place after the expiration of the previous period of detention which ended on October 1 st , 2015.

Counsel for Gérald Thériault also argues that the Detention Order issued on July 6 th , 2015 is illegal as it was issued without jurisdiction because the hearing was held on July 6 th , 2015; 5 days after the expiration of the first detention period of three months ending on July 1 st , 2015. [ 15 ] Furthermore, counsel for Gérald Thériault argues that even if the Court determines that it has proper jurisdiction, the Attorney General failed to provide sufficient evidence to establish, having regard to the evidence presented, that further detention for 3 months is warranted pursuant to section 490(2) of the Criminal Code of Canada . [ 16 ] According to counsel for Gérald Thériault, paragraph 10 of Caroline Dinel’s Affidavit only established that the prosecution is simply not ready to provide disclosure in the event that accusations would be filed against Gérald Thériault, and, that is not a proper justification to authorize further detention pursuant to section 490(2) of the Criminal Code of Canada .

THE ISSUES [ 17 ] The Court must first determine whether the Application meets the requirement of section 490(2) of the Criminal Code of Canada and, therefore, has jurisdiction to hear the Application. [ 18 ] Section 490(2) of the Criminal Code of Canada reads as follows: 490.

(2) Nothing shall be detained under the authority of paragraph (1)(

b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (

a) is decided, unless (

a) a justice, on the making of a

summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or (

b) proceedings are instituted in which the thing detained may be required. [ 19 ] Section 490(3.1) is also relevant and reads as follows: 490.

(3.1) A thing may be detained under paragraph (1)(

b) for any period, whether or not an application for an order under subsection (2) or (3) is made, if the lawful owner or person who is lawfully entitled to possession of the thing seized consents in writing to its detention for that period.

[20] First, let me deal with the legality of the Order for further detention issued on July 6th, 2015. That Order was issued with writtenconsent of Gérald Thériault. According to my

interpretation of section 490(3.1) of the Criminal Code of Canada, it becomes irrelevantto determine whether an Application was filed and served and/or whether the Application, if any, was filed and served before the expiration of the first detention period ending July 1st, 2015. [20.1] The fact that Gérald Thériault consented to the order triggers the application of section 490(3.1) of the Criminal Code ofCanada. [21] Therefore, I find that the Order obtained on July 6th, 2015 is properly issued and is enforceable until October 1st, 2015. [22] The second issue raised that is relevant to the jurisdiction of the Court is whether the requirements of section 490(2) werecomplied with by the Attorney General.

According to section 490(2), a party seeking further detention needs to: 1- file a

summary Notice of Application with the Court; 2- obtain a hearing date; and 3-serve the person from whom the things detained was seized with the Notice at least three clear days before the date of the hearing; all of this before the expiration of the previous detention order. [23] In this case, the first Order of Detention expired on July 1st, 2015 and the second Order of Detention expired on October 1st, 2015. The Notice of Application, which is the object of this decision, is filed with the Court, a hearing date for September 28th, 2015 is fixed and the Notice is served on Gérald Thériault on September 16th.

The hearing date is subsequently changed for September 30th,2015 and on that date, both parties are present in court. Although it has not been possible to determine the actual date the Notice ofApplication was first filed with the Court because the documents were not stamped, it is reasonable to conclude that they were filed on or before they were served to Gérald Thériault on September 16th, 2015. He was served with a copy containing the date of hearingobtained from the Court. Therefore, it seems to me that the requirements of section 490(2) of the Criminal Code of Canada have beensatisfied. [24] In R. v.

Hickey [2003] N.B.J. No. 118, Justice McIntyre, in addressing the issue of the timeliness of the Application, reviewedthe decision of Legg J. in R. v. Papalia (BC SC), [1987], 38 C.C.C. (3d) 37 (which was decided prior to the amendment of section 490(2)(

a) that came into force on April 1st, 1995) and the comments made by Justice Hoyt of the N.B.C.A. in R.v. Mandate Erectors and Welding Ltd et al (NB CA), [1995], 163 N.B.R. (2d) 206 and said as follows: 16 In my view, the comment of Hoyt, C.J.N.B. in Mandate Erectors that the amendment to paragraph 490(2)(

a) gave statutoryeffect to the decision in R. v. Papalia should not be interpreted to mean that the application could be heard outside the three-month period without loss of jurisdiction. His comments with reference to the decision in R. v. Papalia quoted above make itclear that he was in disagreement with the view that “…the time limits in s. 490(2)(

a) are suspended pending the hearing of anapplication for further detention.” It appears clear to me that the only part of the decision in Papalia to be given statutory effectis Legg J.’s conclusion that the decision of the justice or the judge may extend outside the three-month period without loss ofjurisdiction.

The three-day notice has to be given and the application heard prior to the expiry of the three months. (…) Following the hearing of the application within the statutory period, the justice or the judge may now with the 1995amendment adjourn for decision to a date outside the three-month period without loss of jurisdiction. [25] In my view, the decision of Justice McIntyre in R. v. Hickey (supra) should not be interpreted to mean that the Applicationcannot be adjourned outside the previous detention period to allow time, as the case may be, to complete the hearing.

If an adjournmentis necessary in the Court’s discretion, then section 490(2) provides that the previous detention period will end when the Application forfurther detention is decided. This

interpretation of section 490(2) will allow the necessary flexibility that parties and/or the Court may,at times, need to properly address issues raised in some of those applications. [26] To that effect, I quote with approbation Judge Allen in R. v. Newport Financial Pacific Group S.A.

(2003) ABPC 80 Can LII atparagraph 126-11:

Section 490(2) provides a time limit of three months from the date of seizure as one alternative. Another alternative is “or any longer period that ends when an application made under paragraph (

a) is decided”. This latter alternative means that as long as the application is returnable prior to expiration of three months from seizure of these items then it may be adjourned to allow time for the proceeding to be completed. [ 27 ] In my view, an application under section 490(2) of the Criminal Code of Canada needs to be filed, served and returnable date obtained before the expiration of the previous Order of Detention.

Then, the application may be adjourned at the request of the parties, in the exercise of the Court’s discretion, without loss of jurisdiction. [ 28 ] In this case, the second Order of Detention expired on October 1 st , 2015 and the Application was returnable on September 30 th , 2015, which is inside the detention period.

On September 30 th , 2015, the parties, especially counsel for Gérald Thériault, agreed that the Application should be adjourned to allow the exchange of documents relevant to the Application and the Court granted the adjournment. [ 29 ] I am satisfied that the Application complied with the statutory requirements of section 490(2) of the Criminal Code of Canada and that I do have jurisdiction. [ 30 ] The second issue raised by counsel for Gérald Thériault is whether the evidence presented is sufficient to satisfy the Court that, having regard to the nature of the investigation, further detention for three months is warranted? [ 31 ] In deciding an Application made under section 490(2), the Court must balance the legitimate interest of the person who is lawfully entitled to possession of the things seized and the public interest in having the investigation properly conducted. [31.1] This approach was confirmed by my colleagues Judge Dugas-Horsman in R. v.

Marc Guignard et Pêcheries Belle Ile Fisheries Ltée/Ltd et al (unreported), Judge Anderson of the Provincial Court of Alberta in Edmonton Police Service v. Alberta , 2011 ABPC 124 (Can LII) and also by this court in R. v. Patrick Lanteigne (unreported in 2012). [ 32 ] According to the affiant, Caroline Dinel, the investigation is complex and still ongoing.

She believes it would come to a conclusion within three months. [ 33 ] The things seized are basically substances identified as drugs (marihuana, pills like ICE, Citalopram and others unidentified), score sheets, knife, Ziploc bag with baggies, Colt Defender Air Soft, cellular phones, scales, guns and illegal cigarettes. [ 34 ] Even though the Affidavit of Caroline Dinel does not provide details as to why the investigation is considered to be complex and long, it does provide information with regard to the nature of the investigation.

Exhibit “A” of her Affidavit, which is the Warrant to Search issued on March 30 th , 2015 and executed on April 1 st , 2015 clearly establishes that the investigation is being conducted because Cpl. Eric M. Chenard has reasonable grounds to believe that Gérald Thériault is involved in trafficking illegal drugs since October 1 st , 2014. [ 35 ] In balancing the interests of Gérald Thériault in the things seized and the interest of the public to have this type of investigation properly conducted, I am satisfied that further detention is warranted.

Most of the items seized would not, even if further detention was refused, be returned to Gérald Thériault due to their illegal nature.

Keeping that in mind, it would be unacceptable to release the things seized and therefore jeopardizing such of a criminal investigation when, in fact, Gérald Thériault, does not have legal rights to possess most of the items seized. [ 36 ] Therefore, the order sought by the Attorney General of Canada is granted, and further detention of the things seized is ordered until the end of the day on January 2 nd , 2016 or until a charge is filed against Gérald Thériault, whichever event happens first.

DATED at Campbellton, New Brunswick this 26 th day of October 2015. ____________________________ Brigitte Sivret Judge of the Provincial Court