Regina v. Vandale - Ruling Date:, 2003 BCPC 409

Citation: Regina v. Vandale - Ruling Date: 20030324 2003 BCPC 0409 File No: 14209 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DENNIS RICHARD VANDALE RULING ON APPLICATION OF THE HONOURABLE JUDGE E. C. BLAKE Counsel for the Crown: Nathan Bauder Counsel for the Defendant: Dan Weatherly Place of Hearing: Prince George, B.C. Dates of Hearing: February 19, 20 and 26, 2003 Date of Judgment: March 24, 2003 [ 1 ] This is an application by the Crown pursuant to Section 490(9) of the Criminal Code .

The Crown seeks the forfeiture of the sum of $14,000.00 in cash seized from the Respondent's possession on September 26, 2000. The Crown says that the circumstances disclose the money to be "tainted with illegality". [ 2 ] The Crown presented evidence concerning the seizure of the money in this case in the form of an affidavit sworn on November 10, 2002 by Constable Kevin Rutten, a member of the Royal Canadian Mounted Police. That affidavit was tendered as evidence in accordance with the evidentiary principles set forth in R v Clymore , [1992] B.C.J. No. 1705 (S.C.) .

I will briefly summarize the relevant portions of the affidavit. [ 3 ] It appears that on September 26, 2000 Constable Rutten stopped a motor vehicle driven by the Respondent on Highway 16, approximately 40 kilometres east of Prince George, British Columbia. Constable Rutten had observed the vehicle to be exceeding the speed limit. [ 4 ] Once the vehicle had stopped at the roadside and some preliminary questions had been asked, Constable Rutten quickly determined that there was an outstanding criminal warrant for the Respondent, who was the driver of the vehicle.

The Respondent was duly arrested on the warrant and his vehicle was seized. [ 5 ] During the course of the search, Constable Rutten found the sum of $14,000.00 in cash in the bottom of a shaving kit in the trunk of the car, wrapped in two separate bags. The fund consisted of 600 twenty dollar bills, together with a smaller number of one hundred dollar bills and fifty dollar bills. The police officer also found a container full of burnt marijuana cigarette butts under the driver's seat and a Polaroid photograph of the Respondent standing in front of a marijuana plant.

The photograph was located in the glove compartment of the car. The search also turned up the real estate portion of a Vancouver newspaper with various properties circled. [ 6 ] During the hearing of this application, the Respondent initially represented himself. He made certain arguments concerning the validity of the search which I found to be without merit.

In order to expedite matters, I advised both the Respondent and Counsel for the Crown that I was rejecting the Respondent's arguments on the point and that, in the absence of further argument, I would be considering the money to have been lawfully seized pursuant to a search conducted incidental to a valid arrest. The Respondent then conceded the point and the Crown, naturally, made no further comment. [ 7 ] At a later stage in the proceeding, the Respondent retained counsel who filed written submissions on his behalf.

Counsel for the respondent now questions the validity of the seizure of the money, if not the search itself. In view of the way in which the proceeding unfolded I find that submission to be somewhat problematic. It appears to me that Crown Counsel may have been lulled into a sense that the entire search and seizure issue had been resolved by the concession made by the Respondent during argument. After much anxious consideration, however, I have concluded that fortunately I need not finally resolve the issue.

I will simply say that for the sake of argument only I will presume both the search and the seizure of the money to have been lawful. [ 8 ] Following his arrest, the Respondent spoke to Constable Rutten at some length concerning the cash which had been seized. His explanation, in short, was that he was merely transporting the money to Alberta at the request of a former employer and business acquaintance, the funds themselves being the returned deposit from a collapsed land sale in Fort St. James, British Columbia.

Some months after the seizure of the money had taken place, however, the police were able to trace the person named as the "former employer" in Alberta. That person admitted knowing the Respondent and to having had an employer-employee relationship with him, but clearly declaimed any knowledge of the money. He unequivocally set forth his position on the matter in an affidavit provided to the police.

[ 9 ] Constable Rutten in his affidavit deposes that the police submitted a sample of the seized money to a process referred to as an "ion scan". The police officer deposes further that the "ion scan" process, apparently conducted by an expert in the field, resulted in a finding that some of the money and one of the container bags bore traces of cocaine. [ 10 ] The Respondent testified on this application. He frankly admitted that the story which he had given to the police concerning the origins of the cash and its supposed transport to the former employer in Alberta was a concoction.

The story was fabricated, he said, because he did not think that the police, knowing of his criminal past, would believe him if he told the truth. He hoped to quickly secure his former employer's co-operation regarding the fabricated story, with the result that the police would then believe the story and turn the money over to the Alberta associate. The Respondent then expected to recover the money from the associate.

That scheme obviously failed when the person in Alberta refused to involve himself in the ruse. [ 11 ] I pause at this point to take note of the Crown's argument that the Respondent's story about the Alberta connection proves that the money is "tainted with illegality" because no person legitimately in possession of such a large sum of money would abandon it with such alacrity. I must confess that the force of that argument is lost on me. It is difficult for me to equate the Respondent's story with any notion of abandonment.

Far from abandoning the money, it seems to me that the Respondent, through creating the fictitious story about the Alberta connection, was actually planning a circuitous and devious way of ultimately retrieving the money for his own purposes. [ 12 ] The true state of affairs, the Respondent now says, is that he and his girlfriend had sold off a number of assets, pooled the proceeds with some of the Respondent's own funds, and were moving to Alberta. That is why, he says, he was driving his girlfriend's car and that is also why the trunk was filled with personal possessions.

The assets which had been sold were said to include a mobile home (which netted $5,000.00 in sale proceeds), the assets of a catering business (approximately $7,000.00) and a car (approximately $1,000.00). In addition, there were the proceeds of the Respondent's insurance claim ($11,000.00) and a small annuity payment arising from an earlier motor vehicle accident claim. The funds had actually totaled some $25,000.00 initially, but had dwindled to a much lesser figure by the time of the Respondent's abortive trip to Alberta on September 26, 2000.

Presumably, the girlfriend may have had some more of the money in her possession at the relevant time, but I cannot speculate about that. The Respondent testified that his girlfriend could not attend court for hearing of the present application due to ill health. [ 13 ] The Respondent weathered a barrage of questions from the Crown and from the Bench about why he would be travelling in a car with such large amounts of money in cash.

He provided several answers, of varying plausibility, which seemed to centre around his own distrust of banks and the fact that he had creditors whose attentions he did not wish to attract. [ 14 ] After the Respondent testified, the Court invited him to provide any documentation which might be available to support his contention about the origins of the case. Since he was not represented by counsel, the Respondent was allowed a period of some days to produce the documentation for the Court.

In due course, the Respondent did indeed produce documentation which, on examination, proved to be at least consistent with his testimony before the court. The Crown declined an invitation to cross-examine the Respondent with respect to the documentation. [ 15 ] At the conclusion of the hearing, the parties indicated that they wished to provide written submissions to the Court, the Respondent by this time being represented by legal counsel.

After reviewing the submissions and all of the authorities provided, it is clear that there are certain basic legal principles applicable to applications of this sort, and the parties appear to essentially agree on those principles. The principles may be summarized as follows: 1. A person from whom property has been seized has the initial burden to prove, on balance of probabilities, that he or she was in possession of the property: Re Mac and The Queen (1995), 1995 CanLII 2071 (ON CA) , 97 CCC 3d 115 (Ont. C.A.) . The Respondent has obviously met this burden; 2.

Once the burden of possession has been discharged, the person enjoys a presumption that the possession was lawful. The Crown may rebut that presumption by proving "unlawful possession", but the Crown's burden of proof is set at the criminal standard, i.e. proof beyond reasonable doubt: Re Mac , supra; 3. The Crown is not required to prove a particular transaction, but must prove a general "taint of illegality", which will result in a finding that it would be contrary to public policy to return the property to the possessor: R v Clymore , supra; R v Hicks , [2000] B.C.J. No. 2653 (Prov.

Ct.) . [ 16 ] In applying the above general principles to this case, I am not persuaded that the Crown has proved, to the requisite standard, that the cash in the Respondent's possession was "tainted with illegality". I have reached that conclusion even after taking into account the fact that the rules of evidence are a good deal more relaxed on an application of this sort than they would be in a criminal trial.

I also take into account the admonitions in the various case authorities to the effect that inferences can often be drawn from the overall circumstances, and that no particular transaction involving illegality need by proved. Ironically, in noting the various "discounts" which are allowed to the Crown in applications of this sort I am made more mindful than ever of the need to be vigilant that forfeiture applications generally not be used as an inappropriate mechanism to circumvent criminal trials. It is all too easy to confuse proof with mere suspicion once it is asserted that no criminal sanctions are at stake.

I say that without intending to cast aspersions of any sort upon either the police or Crown Counsel in this case. I cannot help but notice, though, that no criminal proceeding was ever launched with respect to the subject money here. [ 17 ] Counsel for the Respondent has pointed out that virtually all of the incriminating evidence in this case can be minimized, and probably would have been if the Respondent had faced viva voce testimony rather than mere affidavit evidence.

For example, counsel points out that the Court has been provided with no evidence that the Respondent was aware of the marijuana cigarette butts under the driver's seat of his girlfriend's car. The "ion scan" evidence, presented through Constable Rutten's affidavit may also be suspect. How was the testing done? What proportion of bank notes in general circulation bear traces of cocaine? And even if it is accepted that the Respondent has had some connection at some time with cocaine or marijuana, does that really prove beyond reasonable doubt that the money in his possession is "tainted" with criminal connections?

I think not. Counsel for the Respondent likewise points out that the Crown's arguments regarding the denominations of the money and the photograph of the marijuana plant do not have nearly the force

which the Crown would like, and I tend to agree. As O'Halloran, JA once said, suspicion is not proof and a thousand suspicions do not add up to proof. [ 18 ] With respect to the explanation offered by the Respondent, I confess that I am more than a little suspicious. The story which the Respondent offered up at the outset demonstrated that he has considerable facility for tall tales.

On the other hand, I am unable to say that his present version of the events could not reasonable by true, especially since it is now supported by documentary evidence upon which the Crown chooses not to cross-examine. [ 19 ] In the end result, I order that the sum of $14,000.00 seized from the Respondent by Constable Rutten on September 26, 2000 be returned to the Respondent forthwith. Alternatively, the funds may be returned forthwith to the Respondent's counsel, in trust for the Respondent. ___________________ E.C. Blake,.P.C.J.