R. v. Yadav, 2022 BCPC 327

Citation: R. v. Yadav 2022 BCPC 327 Date: 20221205 File No: 247485 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Court) REGINA v. PAVAN YADAV RULING ON APPLICATION #1 OF THE HONOURABLE JUDGE D. ST. PIERRE Counsel for the Crown: Michelle Wiancko and Jonathan Langlois-Sadubin Counsel for the Defendant: Patrick McGowan and Gloria Ng Place of Hearing: Vancouver , B.C. Date of Hearing: November 30, 2022 Date of Judgment: December 5, 2022 [ 1 ] Mr. Yadav is charged with several drug related offences under the Controlled Drugs and Substances Act .

In this Application (which I will call Disclosure Application #1), Mr. Yadav seeks an Order for the disclosure of records relating to a seized Mercedes Benz vehicle. He asserts that this information is in the possession of the Crown and/or investigating agency and are relevant and required for Mr. Yadav to make full answer and defence.

[ 2 ] This application involves, in part, the interplay between the police here who were investigating alleges offences under the Controlled Drugs and Substances Act and the British Columbia Civil Forfeiture Office who target property linked to alleged unlawful activity on behalf of the Provincial Government. [ 3 ] The trial of this matter was commenced over a year ago. Since that time I have issued several rulings in relation to Voir Dires that were held to determine whether alleged charter breaches were established.

This Application proceeded on the basis of counsel submissions (written and oral) and both Defence and Crown Books of Materials that were marked as Exhibits 1 and 2. Background [ 4 ] In my ruling on Voir Dires #1, 2 and 3 I set out some of the background to this investigation. [ 5 ] In short, while investigating the suspected criminal activities of Mr. Yadav the police investigated Mr. Yadav’s movements and activities over several months. Eventually, the police obtained search warrants for several properties associated to Mr. Yadav. One of those properties was a residence on 11 th Avenue in Burnaby.

It is this residence that the police believe that Mr. Yadav resided. [ 6 ] On June 29 th , 2018 the police executed a search warrant at the 11 th Avenue residence and seized a 2015 Mercedes Benz ML63 vehicle (“the Mercedes”) and Mr. Yadav’s passport. [ 7 ] The Exhibits Flowchart indicates that Officer Cavanaugh was responsible for removing the Mercedes from the scene. The following day, June 30, 2018, the Mercedes was taken to the police storage lot. [ 8 ] Pursuant to her duties outlined in

Section 489.1 of the Code , Officer Cavanaugh completed and filed a Report to a Justice (Form 5.2). This document is essentially an application by the police to detain the seized items for a period of time so that they can investigate whether they will be required for any further proceeding. [ 9 ] The Form 5.2 was filled out on July 6 th , 2018 and a Justice of the Peace granted the request for a three month detention in relation to the Mercedes. [ 10 ] The Order, dated July 9, 2018, reads: Upon the application of Jennifer Cavanaugh and having been satisfied that the detention of the thing(

s) seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding, it is hereby ordered that, pursuant to Section 490(1) (

b) of the Criminal Code the articles set out in the Report to a Justice be detained for a period of three months from the date of seizure, unless an application for a order of further detention is made, or proceedings are instituted in which the thing(

s) detained may be required. It is also ordered that the article(

s) be entrusted to the custody of the applicant or his/her designate. [ 11 ] This Detention order was to expire on September 29 th , 2018 (three months from the date of seizure). On September 28 th , 2018 the police served Mr. Swartz, (Mr. Yadav’s counsel at the time) with a Notice of Application for an Order for Further Detention of Things Seized. The Notice advised that the application would take place on October 5 th , 2018. The hearing was then set to be argued on October 16 th , 2018. [ 12 ] Prior to the hearing, however, the Crown advised Mr. McGowan (now counsel for Mr.

Yadav) that they were no longer seeking the further detention of the Mercedes. The factual matrix that existed at that time was that the original detention order had expired and the Crown had abandoned any intention on seeking the further detention of the Mercedes. At this point in time, there was, the Defence submits, no lawful basis upon which the Mercedes was being detained by the police. [ 13 ] On October 16, 2018 Provincial Court Judge Dorey ordered that the Mercedes be returned to Mr. Yadav. [ 14 ] The Mercedes was not immediately returned to Mr. Yadav as a result of that Order.

The police are entitled to wait 30 days before complying in order for an appeal period to expire. Here, however, the Crown was consenting to the return of the vehicle and an appeal was unlikely in this scenario. [ 15 ] Cpl. Dykeman’s notes indicate that earlier the same day that Judge Dorey ordered the return of the Mercedes he met with the Civil Forfeiture Office representatives. He made a note entry that the Mercedes was “taken to Civil”. Notes indicate that when Mr.

Yadav went to retrieve the Mercedes that afternoon he was informed that the vehicle was no longer in possession of the police. [ 16 ] The Civil Forfeiture Office had filed a Notice of Civil Claim on July 26, 2018 seeking to have the Mercedes forfeited to the Province in accordance with the Civil Forfeiture Act . [ 17 ] Later, on October 26, 2018, an Interim Preservation Order (IPO) pursuant to the Civil Forfeiture Act was made with the consent of Mr. Yadav. Information Sought [ 18 ] In light of these facts, briefly summarized above, Mr. Yadav seeks an Order that the Crown disclose the following: i.

Communications or records of communication between or amongst the police, and any other records, regarding: a. The location of the 2015 Mercedes ML63 seized by police on June 29, 2018 in and around 11th Avenue in Burnaby, BC (the "Mercedes"); b. The expiry of the s. 490 detention order relating to the Mercedes;

c. The decision to not seek further detention of the Mercedes; d. The transfer of the Mercedes to the Civil Forfeiture Office ("CFO"); e. Lawful authority of the police and/or the CFO to continue to possess the Mercedes; the fact that the Mercedes was ordered returned by the Provincial Court; g. Any and all documents and communications (including but not limited to police typed or handwritten notes, task action reports,flowcharts, forms, emails, memoranda) amongst police regarding the Mercedes. ii.

Communications or records of communications between the police and Crown Counsel/Public Prosecution Service of Canadaregarding: a. The location of the Mercedes; b. The expiry of the s. 490 detention order relating to the Mercedes; c. The decision to not seek further detention of the Mercedes; d. The transfer of the Mercedes to the CFO; e. Lawful authority of the police and/or the CFO to continue to possess the Mercedes; f. the fact that the Mercedes was ordered returned by the Provincial Court; iii. Communications or records of communications between the police and the Civil Forfeiture Office (CFO) regarding. a.

The location of the Mercedes; b. The expiry of the s. 490 detention order relating to the Mercedes; c. The decision to not seek further detention of the Mercedes; d. The transfer of the Mercedes to the CFO; e. Lawful authority of the police and/or the CFO to continue to possess the Mercedes; f. the fact that the Mercedes was ordered returned by the Provincial Court; iv. Communications or records of communications with any other third parties (e.g. tow companies) respecting arrangements forthe movement or transfer of the Mercedes; and, v.

Communications or records of communications with any other parties respecting the existence of the Provincial Court Order forthe return of the Mercedes. [19] The Crown takes the position that the requested information has either been disclosed already, is irrelevant, is subject to someform of solicitor/client or work product privilege or are third party records and not within their power to disclose. [20] Specifically, the Crown submits that there is no basis upon which the Defence could seek disclosure about anything related to theCivil Forfeiture action.

They assert that the only relevant disclosure applicable to the seizure and return of the Mercedes in this criminalprosecution, which is material related to the

Section 490 process, has already been disclosed. The two processes, the Civil action and theCriminal proceeding are, in essence, irrelevant to each other, the Crown maintains. Analysis [21] I do not propose to engage in a broad analysis of the law surrounding disclosure in a criminal proceeding. The Supreme Court ofCanada in R. v. Stinchcombe (SCC), [1991] 3 SCR 326 confirmed the legal obligation of the Crown to disclose allrelevant information to the Defence.

It has been said that the Crown is not an “ordinary litigant” and must give life and expression to itsundivided loyalty to the proper administration of justice. (See par. 49, R. v. McNeil 2009 SCC 3 , [2009] 1 SCR 66). [22] Is there a reasonable possibility that withholding the requested information will impair the right of the accused to make fullanswer and defence and pursue possible Charter violations with respect to the criminal procedure instituted against him by the state?

Thatis the question. [23] In general terms, the Defence seeks information relevant to how the police executed the duties and responsibilities placed onthem when they have seized a citizen’s property pursuant to some purported lawful authority to do so. Is this Information Clearly Irrelevant? [24]

Section 490 of the Criminal Code sets out a comprehensive scheme of judicial supervision for items seized by a warrant or in awarrantless search. Under s. 490(1), a justice shall order the goods returned to the lawful owner unless the justice is satisfied that thedetention of the things seized is required for investigative purposes, a preliminary inquiry, trial or other proceeding. Nothing shall bedetained for longer than three months unless, on application, the justice is satisfied that an extension of the detention period is justified orproceedings have been instituted where the things seized may be required (s. 490(2)).

[ 25 ] In this case a judicial officer authorized a three month detention of the Mercedes seized in this case. Initially, an application for a further detention of that vehicle was made. However, the Crown advised, before that application was heard in Court and after the initial judicially authorized period of detention had expired, that they did not require the Mercedes any further in this investigation and would be consenting to a judicial order that the Mercedes be returned. [ 26 ] A judge ordered the return of the Mercedes to Mr. Yadav. However, that did not happen.

The police, instead, transferred the Mercedes to the Civil Forfeiture Office. Whether there was a lawful mechanism through which that transfer was effected is not what I am deciding in this application. [ 27 ] A failure by the police to properly deal with seized property can lead to a breach of

Section 8 of the Charter, a loss of jurisdiction over the seized item or a finding that there was an Abuse of Process (See R. v. Garcia-Machado , 2014 ONCJ 81 ; R. v. Butters , 2015 ONCA 783 ; R. v. Craig 2016 BCCA 154 ; R. v. Booth [2021] BCJ No. 1501 ; R. v.

Gill 2021 BCSC 152 and [2021] BCJ No. 843 (24(2) application). [ 28 ] In order to pursue any possible similar arguments it is clear to me that the Defence are entitled to receive any and all information with respect to how the police discharged their duties under the Code as custodians of the seized property in question. “Possible relevance” is easily established as a result. [ 29 ] I would go further to find that to the extent that any of the requested information extends beyond the “fruits of the investigation”, the information sought is “obviously relevant” to the issues sought to be raised by the Defendant. (See R. v.

Gubbins , 2018 SCC 44 at par. 23 ). Is Any of the Requested Information a Third Party Record? [ 30 ] The Crown submits, and I accept, that the Civil Forfeiture regime and the Criminal Code provisions in relation to seized property exist and operate in parallel for different purposes and neither trumps the other. [ 31 ] The Crown also relies upon R. v. Russell 2012 BCSC 145 for the proposition that just because the Crown may receive and examine material arising from a disclosure application, the materials are not automatically “in the Crown’s possession” and as such subject to first-party disclosure obligations.

I should note that this decision was subject to a Ban on Publication pursuant to Section 648(1) (protecting jury deliberations) until the jury renders a verdict. I accept that, in fact, the matter has long since concluded and the ban is no longer necessary. [ 32 ] In that case (a conspiracy to murder case) the Defence sought information about the enemies of the accused, who were alleged to be involved with a gang, which could assist the accused in raising the defence of alternate perpetrators. The

interpretation of R. v.

McNeil 2009 SCC 3 was at issue. [ 33 ] Again, I agree that material the Crown obtains from “third parties” for the purpose of examining its potential relevance cannot be said to be automatically in possession of the Crown for first party disclosure purposes. [ 34 ] Here, the Crown sought communications that the police had with the Civil Forfeiture Office and with the Crown lawyer dealing with the Civil forfeiture matter. [ 35 ] It is an important factor to note that the Civil Forfeiture Office asserts no privilege or privacy interest in the requested material that they are in possession of or have provided to the Crown in response to queries. [ 36 ] I have already determined that the material sought is “obviously relevant” to an investigation into possible defences.

The Crown, in my mind, was acting in accordance with its duty to obtain relevant evidence when it made inquiries as to how the Mercedes was dealt with after being seized pursuant to a search warrant that was obtained as part of the investigation of Mr. Yadav. This very same investigation led to the charges that I am dealing with in this trial. There may have been an overlapping procedure under the Civil Forfeiture Act that was taking place concurrently with the seized property oversight obligations being discharged by the police in this case.

However, that does not displace, or render clearly irrelevant, the inquiry into how the Mercedes was transferred out of the custody of the police who were lawfully entrusted with the safeguarding of the seized property in question.

If the answers to that inquiry tangentially involve the Civil Forfeiture Office then so be it. [ 37 ] I have an obligation to safeguard the fair trial rights of the accused before me while balancing any countervailing interests. [ 38 ] As the court in Gubbins (above) found: 23 In addition to information contained in the investigative file, the police should disclose to the prosecuting Crown any additional information that is obviously relevant to the accused's case. The phrase "obviously relevant" should not be taken as indicating a new standard or degree of relevance : Jackson , at para. 125, per Watt J.A.

Rather, this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the Crown's case, raise a defence, or otherwise consider the conduct of the defence. McNeil requires the police to hand such information to the Crown. [ 39 ] Later at par. 33 the Court states: 33 Based on the previous discussion of disclosure regimes, to determine which regime is applicable, one should consider:

(1) Is the information that is sought in the possession or control of the prosecuting Crown? and

(2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime. 1 Otherwise, the third party disclosure regime applies.

[40] In relation to the case before me, I answer both of the questions set out in par. 33 of Gubbins (above) in the affirmative. [41] I find, therefore, the information sought is properly characterized as first party records and subject to disclosure in thisproceeding. [42] There is still the matter of whether some of the material should not be disclosed due to the privileges being asserted.

Here thereare a number of e-mails between the lawyer for the government on the Civil Forfeiture matter and the police that the Crown is assertingsolicitor/client privilege or work product privilege over (See Tab 6 of Exhibit). [43] The Crown has provided summaries for each vetted e-mail communication explaining the basis for asserting privilege. [44] It seems to me that if there is no waiver of privilege in respect of the sought after information from any party entitled to raise itthen I should be provided any contested material for the purpose of reviewing the asserted privileges.

Counsel advice to the police inrelation to the dealings of seized property can be a relevant factor in establishing breaches of an accused’s Charter rights (See R. v. Gill[2021] BCJ No. 843; R. v. Blank 2006 SCC 39 at par. 43-45; R. v. Campbell (SCC), [1999] 1 SCR 565 at par. 63; R. v.Teixeira 2022 BCSC 117 at par. 45; R. v. Tull 2020 BCSC 1182 par. 13-15).

Summary [45] There is an Order for disclosure to the Defence of: 1. Any communications or records of communications between or amongst the police, between the police and CrownCounsel/PPSC, and between the police and the Civil Forfeiture Office in relation to: a. The location of the 2015 Mercedes ML63 seized by police on June 29, 2018 in and around 11th Avenue in Burnaby, BC (the"Mercedes"); b. The expiry of the s. 490 detention order relating to the Mercedes; c. The decision to not seek further detention of the Mercedes; d. The transfer of the Mercedes to the Civil Forfeiture Office ("CFO"); e.

Lawful authority of the police and/or the CFO to continue to possess the Mercedes; the fact that the Mercedes was ordered returned by the Provincial Court; g. Any and all documents and communications (including but not limited to police typed or handwritten notes, task action reports,flowcharts, forms, emails, memoranda) amongst police regarding the Mercedes. 2. Communications or records of communications with any other third parties (e.g. tow companies) respecting arrangements for themovement or transfer of the Mercedes; and, 3.

Communications or records of communications with any other parties respecting the existence of the Provincial Court Order forthe return of the Mercedes. [46] Of course, this order only applies to any material that has not already been disclosed to the Defence on this matter. The Crownhas an obligation to make any necessary queries in order to confidently advise that no such requested material exists. For instance, I agreewith the Defence that there must have been some kind of communication(

s) dealing with the arrangement of the transfer of the Mercedesout from police custody. To the extent that no “record” exists there must be a will-say produced by someone with knowledge as to howthat transfer occurred and the information contained therein. [47] Any material over which some privilege is being asserted will be copied and provided to me for review. The material will besealed by the Court and subject only to my review. Upon review of the material I will determine if the asserted privilege prevails and ifso whether it is necessary that it be set aside.

As other courts have noted, it may be that all the asserted privileges prevail but that cannotbe determined in a vacuum prior to such a review. _________________________________ The Honourable Judge David St. Pierre Provincial Court of British Columbia