Crockford v. Keith Date:, 2015 BCPC 446

Citation: Crockford v. Keith Date: 20150908 2015 BCPC 446 File No: 21485 Registry: Rossland IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF An application under section 490(2)(

a) of the Criminal Code made by Constable Peter Crockford for an Order for further detention of certain things seized from Ryan Keith on May 11, 2015 RULING ON APPLICATION OF THE HONOURABLE JUDGE R. HEWSON Counsel for Ryan Keith : J. Gelber Appearing on his own behalf: P. Crockford Counsel for the Director of Civil Forfeiture: D. Windsor-Doyle Place of Hearing: Rossland , B.C. Date of Hearing: September 3, 2015 Date of Judgment: September 8, 2015 [ 1 ] This is an application by Constable Peter Crockford under section 490(2) for an order for further detention of property seized

[ 1 ] This is an application by Constable Peter Crockford under section 490(2) for an order for further detention of property seized from Ryan Keith’s vehicle or from Ryan Keith on May 11, 2015. [ 2 ] In response to Constable Crockford’s application, Mr. Keith applies for an order under section 490(1)(

a) for an order that all things seized from Mr. Keith be returned to him. (That application was treated by all parties as an application under section 490(7) for an order under section 490(9)(c), and I will treat it that way in these reasons.) [ 3 ] The Director of Civil Forfeiture sought standing to appear on the application. The Director had commenced proceedings under the Civil Forfeiture Act , SBC 2005, c. 29 (the “ Act ”) in the Supreme Court of British Columbia on August 21, 2015. Counsel for Mr.

Keith took the position that the Director should be refused standing on the application. [ 4 ] The Director argued that this Court had no jurisdiction to consider either application, because the items which Mr. Keith sought to have returned were required in those other proceedings. [ 5 ] No issue was raised with respect to any of the periods of notice required under

section 490. STANDING [ 6 ] Counsel for the Director of Civil Forfeiture sought standing to address the court on the application under

section 490. Mr. Keith opposed this. [ 7 ] I am satisfied that the Director should have standing on this application for two reasons. The first is that, if there are other proceedings in which any thing seized is required, the Director would be exceptionally prejudiced were I to make an order for the return of the things to Mr. Keith. The second is that the Director has been granted standing in other applications brought before the Provincial Court under

section 490, and I see no good reason to depart from the process adopted in those cases. See, for example, the decision of the Honourable Judge Dohm in R. v. Espadilla and Khan (March 20, 2014), Surrey Registry No. 198102-3 (BCPC). EVIDENCE [ 8 ] Constable Crockford swore an affidavit on August 7, 2015. The affidavit established that, on May 11, 2015 and in the execution of his duties, he had seized certain things from Ryan Keith's vehicle, and from Mr. Keith himself.

According to that affidavit, the things seized consisted of: 1) Five stacks of Canadian currency, totaling $20,400 2) A roll of coins 3) One white sock with a solid object inside it 4) One HTC cell phone 5) One Motorola cell phone 6) One sample of Mr. Keith’s urine [ 9 ] Constable Crockford's affidavit also established that on May 13, 2015, a Justice of the Peace ordered the detention of the things seized for three months from the date of seizure under section 490(1) (

b) of the Criminal Code . That period of detention expired on August 11, 2015. [ 10 ] The application now before the court was filed on August 6, 2015 and a Notice of Application was served on Mr. Keith. [ 11 ] Given the passage of time since Constable Crockford swore his affidavit, some of the circumstances had changed. Constable Crockford described the current circumstances in his submissions. He was not under oath. Counsel for Mr.

Keith and counsel for the Director both agreed that I could accept what Constable Crockford told me as fact, without having him enter the witness box and give testimony under oath. [ 12 ] During submissions on his application, Constable Crockford advised me that he was pursuing an investigation of impaired driving against Mr. Keith, and that the urine sample was required for the purposes of that investigation.

He has sent the sample for analysis, and he anticipated receiving the results of that analysis by the end of September. [ 13 ] He also advised me that Crown counsel had considered criminal proceedings relating to the currency and the cell phones, but had decided against instituting those proceedings. He did not require further detention of the money or the cell phones. [ 14 ] Finally, Constable Crockford told me that the white sock and the roll of coins were not required for any purpose, and that he had returned them to Mr. Keith before the hearing. [ 15 ] Mr.

Keith swore an affidavit on September 3, 2015 and filed it. In his affidavit, Mr. Keith swears that on May 11, 2015, he was in lawful possession of Canadian currency in the amount of $20,400. He states that police seized the money from him, and that he has not been charged with any crime. [ 16 ] Counsel for the Director advised the court that on August 21, 2015, the Director had filed a Notice of Civil Claim in an action in rem against the currency and the cell phones. In those proceedings, the Director is seeking relief including an order under section 5(1) of the Act that Mr.

Keith’s interest in the money and the cell phones be forfeited to Her Majesty the Queen in right of the Province of British Columbia. The Director is also seeking an order under section 7(2) of the Act that the effective date of forfeiture of the money

and the cell phones is August 21, 2015, the date that those proceedings commenced. [ 17 ] The Director’s civil claim relates only to the currency and the cell phones. [ 18 ] Counsel for the Director advised that there had been no interim protection order applied for with respect to the currency or the cell phones. Provision for such orders is made in section 8(3) of the Act . [ 19 ] Counsel for the Director took the position that the currency and the cell phones were “required” for the civil “proceeding”, within the meaning of those terms as they appear in section 490(9). Counsel for Mr. Keith took the position that the Director had no standing on the application under

section 490, or in the alternative, that the currency and the cell phones were not “required” in the civil proceedings. ISSUES [ 20 ] There is no real issue that the civil claim commenced by the Director of Civil Forfeiture is a “proceeding" within the meaning of

section 490. See R. v. Espadilla , supra , and R. v. Correa (August 23, 2010) Vancouver No. 158692-1 (BCPC). [ 21 ] There is also no real issue that Ryan Keith was in lawful possession of all of the things seized from him by the police on May 11, 2015. He has given evidence to that effect, and there is no evidence to the contrary. [ 22 ] The issue with respect to the urine sample is whether, having regard to the nature of the investigation, its further detention is warranted. Constable Crockford is conducting an investigation into whether Mr.

Keith's ability to operate a motor vehicle was impaired by alcohol or a drug at the time that he was stopped. I am satisfied that further detention of the urine sample is warranted, and under section 490(2)(

a) I will order the further detention of the urine sample until May 11, 2016. [ 23 ] The more difficult issue is whether either the money, or the two cell phones, are things which "may be required" in the civil proceedings. “MAY BE REQUIRED” [ 24 ] In R. v. Flynn , [2011] BCJ No. 2410 (BCSC) , the operation of

section 490 of the Criminal Code was described in this way: 24 Section 490(1) of the Code requires the continued detention of an item if the thing seized is required "for the purposes of any investigation or a preliminary enquiry, trial or other proceeding". Section 490(7) allows the person from whom something has been seized to apply for an order that the things seized be returned after the expiration of the periods of detention provided for or ordered under subsections (1) to (3). Under section 490(9)(

c) the item is to be returned to its lawful owner if a justice is satisfied that the periods of detention have expired unless proceedings have been instituted in which the thing detained may be required, or, where those periods have not expired the item seized is required under ss. 490(1) or (4). [ 25 ] In British Columbia (Attorney General) v. Felix , [1993] BCJ No. 1870 (BCSC) , the Court heard an appeal by Mr. Felix from the dismissal of his application to the Provincial Court under section 490 (7) of the Criminal Code for an order returning things, including $28,775 in cash. Some of the things seized from Mr.

Felix were required as evidence on a charge of possession of stolen property, but the cash was not the subject of those charges, nor was it required as evidence. The Court considered whether the things seized including the cash "may be required" in the proceeding against Mr. Felix for the purpose of a possible future forfeiture application, under

Part XII.2 of the Code . The Court found at paragraph 11 that, "In the case at bar the articles themselves are not required in the proceedings since they may be ordered forfeited whether the Crown or the accused holds them." The Court found it significant that the Criminal Code provided the remedy of a fine, with a consecutive term of imprisonment in default of payment, should a forfeiture order be frustrated by the disposition of the thing to be forfeited. [ 26 ] In Felix , the Court said: 14 To permit an extended detention by deferring the determination of lawful possession on this section 490 (7) application is to treat the provisions of

section 490 as if the phrase "the thing detained may be required" was expanded by words to the effect: "or in respect of which forfeiture under

Part XII.2 may be made". If that meaning had been intended, Parliament could easily have amended

section 490 at the time of enactment of the Proceeds of Crime legislation. I am confident that such was not intended. [ 27 ] The decision in Felix was applied in Flynn , supra , where the Court said at paragraph 42, 42 Given the Crown's concession that the vehicle is not required as evidence, I find it is not required pursuant to

section 490 for any potential offence-related property forfeiture proceedings. As noted by Meiklem J. in Felix , the property can be ordered forfeited as offence-related property whether it is held by the Crown or the accused. [ 28 ] The adjective “required” has different possible meanings. One meaning is that something is necessary, essential or indispensable.

Another meaning is that something is demanded or desired. [ 29 ] The decisions of the British Columbia Supreme Court in Felix and Flynn were both made on the basis that establishing that proceedings have been instituted in which a thing “may be required” within the meaning of section 490(9) meant that it was essential or indispensable that the thing be detained, because there was no other way that the thing could be ordered forfeited in the other proceedings.

[ 30 ] As I mentioned earlier,

Part 3 of the Civil Forfeiture Act provides for interim preservation orders. Those orders include orders for the possession, delivery to the director or safekeeping of property. An application for an interim preservation order can be made without notice. No application for any interim preservation order has been made with respect to the money or the cell phones seized by Constable Crockford last May. [ 31 ] More importantly,

section 14 of the Act permits, at the time of the making of a forfeiture order, the making of orders requiring the disposition or transmission of property or the whole or the portion of the interest in property forfeited. It also permits orders providing that the government, on forfeiture, may take possession of or seize the property forfeited. CONCLUSION [ 32 ] I conclude that with respect to the cell phones and the money seized by Constable Crockford, a forfeiture order could be made under the Civil Forfeiture Act whether these things are in the possession of Constable Crockford or in the possession of Mr.

Keith. Detaining the cell phones and the money would simplify matters for the Director if he or she is able to obtain the forfeiture orders sought in the civil proceedings, but detention is not "required" for the purposes of those other proceedings. [ 33 ] Under section 490(9)(

c) of the Criminal Code , I order that the cell phones and the currency in the amount of $20,400 be returned to Mr. Keith. _____________________________ The Honourable Judge R. Hewson