R. v. Taylor, 2022 BCPC 293

Citation: R. v. Taylor 2022 BCPC 293 Date: 20221026 File No: 35801-2 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. JAMES CHRISTOPHER TAYLOR IN THE MATTER OF AN APPLICATION PURSUANT TO SECTIONS 490(7) AND 490(9) OF THE CRIMINAL CODE FOR AN ORDER FOR RETURN OF THINGS SEIZED RULING ON APPLICATION OF THE HONOURABLE JUDGE P. LA PRAIRIE Counsel for the Crown: M. Aziz Counsel for the Respondent: V. Williams Place of Hearing: Williams Lake , B.C. Date of Hearing: September 28, 2022 Date of Judgment: October 26, 2022

Overview [ 1 ] This is an application by James Taylor for an Order pursuant to sections 490(7) and 490(9) of the Criminal Code for the return of items seized by Cst. Jason Linde on January 19, 2020. The items were seized after the RCMP stopped a vehicle on Highway 97, near Williams Lake in which Mr. Taylor was a passenger. [ 2 ] Cst. Linde filed a Report to a Justice in Form 5.2 in the Williams Lake Provincial Court Registry on January 21, 2020. Pursuant to s. 490(1)(

b) a Detention Order was granted by a Justice on January 24, 2020, for a period of three months from the date of seizure. The Detention Order was valid until April 19, 2020. No extensions of the Detention Order were sought or applied for by the RCMP. No charges have been initiated against Mr. Taylor in relation to the seized items. [ 3 ] Charges have been initiated against the driver of the vehicle, Stephen Maki, in relation to the items seized by the RCMP on January 19, 2020, and those charges are now before the British Columbia Supreme Court (“BCSC”) for trial. Mr.

Maki’s charges were initiated after the Detention Order had expired on April 19, 2020. [ 4 ] Mr. Taylor seeks the return of the seized items which he claims belong to him, and which he argues are not required for Mr. Maki’s trial. He argues that the RCMP have unlawfully detained these items. [ 5 ] The Crown, on behalf of Cst. Linde, argues that the seized items were lawfully detained by the RCMP, as charges have been initiated against Mr. Maki. The Crown also argues that the seized items are required for the upcoming trial of Mr. Maki. [ 6 ] As Mr. Maki is now before the BCSC for trial, the Crown argues that Mr.

Taylor’s application is premature. In response, Mr. Taylor argues that the application is not premature, as the RCMP never had the legal authority to detain the seized items, as Cst. Linde did not comply with the provisions of s. 490 for further detention. As Mr. Taylor is not facing any charges, he seeks the return of the items seized from him. Circumstances of Seizure [ 7 ] Cst. Jason Linde provided an affidavit affirmed on September 8, 2022, in response to this application.

He also appeared by videoconference at the hearing of the application on September 28, 2022, providing viva voce testimony. [ 8 ] On January 19, 2020, Cst. Linde stopped a vehicle on Highway 97 outside of Williams Lake. Cst. Linde is assigned to the BC Highway Patrol Unit of the Williams Lake RCMP. He was on patrol with another officer Weibe. [ 9 ] The driver of the vehicle was identified as Stephen Maki and James Taylor was the passenger. The vehicle was registered to a company. Cst. Linde arrested Mr. Maki and Mr.

Taylor for possession of a weapon for a dangerous purpose. [ 10 ] The vehicle was searched incident to the arrest and the police seized 47 items from the vehicle and individuals. The seized items included 42 grams of fentanyl, 804 fentanyl pills, personal use amounts of methamphetamine, marihuana, testosterone and prescription pills. Weapons were seized, including bear spray, knives, baseball bats and a machete. The items were seized as evidence of the offences and offence related property. [ 11 ] Cst. Weibe removed a red iPhone from Mr. Taylor’s hands and placed it on the dashboard, which was then seized by Cst.

Linde. A gold 10 karat bracelet was removed from Mr. Taylor’s wrist and $2,180 was removed from his pants pocket. [ 12 ] On the back seat of the vehicle, the police located a yellow plastic bag. No one was seated in the back seat of the vehicle at the time the bag was seized. The bag contained $69,010 in cash. [ 13 ] Cst. Linde took a warned statement from Mr. Taylor who stated the following: a. Taylor has cat litter and cat food in the vehicle; b. Taylor owns nothing else in the vehicle; c. Taylor doesn’t have any bags in the vehicle; d. Taylor doesn’t have a jacket in the vehicle; e.

The vehicle is a company vehicle. [ 14 ] A Form 5.2 Detention Order for Things Seized was signed by a Justice of the Peace on January 24, 2020. The Form 5.2 sets out that the 47 items listed on the form were seized from Stephen Maki on January 19, 2020, at 11:00 hours at Highway 97 near Williams Lake. The Detention Order was granted pursuant to s. 490(1)(

b) for a period of three months from the date of seizure. The Detention Order expired on April 19, 2020. Reason for Continued Detention [ 15 ] On July 6, 2021, an Information was sworn charging Mr. Maki with possession of a controlled substance for the purpose of trafficking, and possession of a weapon for a purpose dangerous to the public peace. Those charges are now before the BCSC for trial.

[ 16 ] In his affidavit, Cst. Linde sets out that the seized cash is required for the trial of Mr. Maki, as it supports the charge of possession for the purpose of trafficking in a controlled substance. Prior to initiating charges against Mr. Maki, Cst. Linde received an expert report from Sgt. MacIntyre, who is a certified drug expert. Sgt. MacIntyre reviewed the police file of this investigation and provided the following opinions in the expert report: i. Both amounts of fentanyl are consistent with possession for the purpose of trafficking.

The drugs were possessed by a mid-level trafficker or supplier with a higher degree of sophistication and deeper level of trust; ii. The currency seized totalled $74,680.00. Drug trafficking is a cash-based business and the discovery of large sums of cash is common in higher-level drug trafficking operations. The amount of money discovered in this investigation is supported by the level of drugs that were also seized. [ 17 ] During cross-examination, Cst. Linde agreed that he did not include any information in his affidavit about Mr.

Taylor’s source of funds, or the fact that he was employed as a personal trainer. Further in cross-examination, it was suggested that the cash found in the bag on the back seat was related to Mr. Taylor’s franchise and referral programs, however, Cst. Linde testified that he did not discuss the source of the funds with Mr. Taylor. Rather, Cst. Linde testified that Mr. Taylor denied ownership of anything in the vehicle. Statutory Provisions [ 18 ] The relevant provisions of the Criminal Code are found in sections 490(1), (7) and (9) : Detention of things seized 490

(1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(

b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall, (

a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or (

b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding. Application for order of return

(7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsections (1) to (3) and on three clear days notice to the Attorney General, apply summarily to (

a) a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552, where a judge ordered the detention of the thing seized under subsection (3), or (

b) a justice, in any other case, for an order under paragraph (9)(

c) that the thing seized be returned to the applicant. Disposal of things seized

(9) Subject to this or any other Act of Parliament, if (

a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or (

b) a justice, in any other case, is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall (

c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or (

d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession, and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

Legal Considerations [ 19 ] In R. v. Craig , 2016 BCCA 154 , Justice Bennett reviewed the obligation of the police to file a Form 5.2 Report to Justice in relation to seized items. At paragraph 146 she makes the following comments: The Criminal Code sets out a comprehensive search and seizure regime in ss. 487 to 490.01 . Included in that regime is a requirement for a report in Form 5.2 to be filed with a justice after the execution of a search warrant detailing, amongst other things, the items seized.

[ 20 ] Further at paragraph 161, Justice Bennett states:

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

A justice may only grant extensions up to one year (s. 490(3)). If the goods are required after that and no proceedings have been instituted, an application for further detention must be made in a superior court. The provisions also address the return of things seized to their lawful owner after the periods of detention expire. [ 21 ] The issue before Justice Bennett was whether the late filing of a report or the failure to file a report engages s. 8 of the Charter .

She concluded that the failure of the police to strictly comply with the statutory provisions of the Criminal Code constitutes a breach of s. 8 of the Charter , however, the analysis is best left to be dealt with pursuant to s. 24(2) of the Charter . (See paragraph 182) [ 22 ] In the earlier decision of R. v. Flynn , 2011 BCSC 1688 , Goepel, J. (as he then was) dealt with an application for the return of seized property, a vehicle, which was not required for an investigation, preliminary inquiry or trial, but rather was the subject of an anticipated forfeiture hearing upon conviction.

Addressing the applicable statutory provisions, Justice Goepel commented: Section 490(1) of the Code requires the continued detention of an item if the thing seized is required “for purposes of any investigation or a preliminary inquiry, trial or other proceeding”. Section 490(7) allows the person from whom something has been seized to apply for an order that the thing seized be returned after the expiration of the periods of detention provided for or ordered under subsections (1) to (3). Under s. 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 sections 490(1) or (4). [ 23 ] Noting that the vehicle was not required as evidence in the trial, Goepel J. ordered its return to Mr. Flynn, as the property could later be ordered forfeited whether it was held by the Crown or the accused. (See paragraph 43) [ 24 ] In Crockford v.

Keith , 2015 BCPC 446 , Judge Hewson considered the meaning of the phrase “may be required” as contained in s. 490(1). At paragraph 28 he noted the following: “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.” [ 25 ] In British Columbia (Attorney General) v. Felix (B.C.S.C.), [1993] B.C.J. No. 1870 , the applicant sought the return of $28,775 seized during the execution of a search warrant, where charges of possession of stolen property were later laid.

The cash did not constitute evidence of the stolen property in the case, but rather, the Crown wanted it detained for a forfeiture hearing upon conviction, as proceeds of crime. The Provincial Court Judge hearing the application for the return of the cash pursuant to s. 490(7) , dismissed the application as premature determining that the matter should be left for the trial judge. On appeal, Justice Meiklem found that the Provincial Court Judge had erred in failing to make an initial determination of whether the cash may be required for trial.

He commented that if a judge does not find that things seized may be required in a proceeding, then the application proceeds to a determination of possession pursuant to s. 490(9). By failing to make this initial determination, the Provincial Court Judge deferred the determination of lawful possession prescribed by s. 490(9). Justice Meiklem remitted the matter back to the Provincial Court for a determination on the issue of whether the cash may be required for trial. [ 26 ] In

summary, Justice Meiklem stated at paragraph 12: If a justice or judge is satisfied that the things detained may be required in the proceedings which have been instituted, one of the prerequisites of a section 490(7) and (9) application is not met and the application would not proceed to a consideration of lawful possession. Analysis Position of the Parties [ 27 ] Mr. Taylor seeks the return of the items he claims ownership of, which were seized by the police when the vehicle was stopped and searched on January 19, 2020.

In particular he seeks the return of the following items set out on the Form 5.2: Item 37 – a red iPhone seized from Mr. Taylor’s hands; Item 39 – men’s 10 karat gold bracelet seized from Mr. Taylor’s wrist; Item 41 – Canadian currency totalling $2810 seized from Mr. Taylor’s pocket; Item 44 – Canadian currency totalling $69,010 seized from the back seat of the vehicle. [ 28 ] The Detention Order for Things Seized was issued on January 24, 2020, for three months from the date of seizure. The Detention Order expired on April 19, 2020. No extension was applied for pursuant to s. 490(2). The charges against Mr.

Maki were sworn on July 6, 2021. No charges have been initiated against Mr. Taylor. [ 29 ] The police have detained the items seized from Mr. Taylor without lawful authority since April 19, 2020, when the three-month detention order expired. As noted by Justice Bennett in Craig , the failure of the police to strictly comply with the statutory provisions of the Criminal Code constitutes a breach of s. 8 of the Charter . Mr. Taylor seeks the return of the items seized from his person, as well as the $69,010 in cash seized from the back seat of the vehicle. [ 30 ] The Crown argues that the application by Mr.

Taylor for the return of the $69,010 in seized cash is premature. Mr. Maki has

been charged with an offence of possession of a controlled substance for the purpose of trafficking, as well as possession of weapons for a purpose dangerous to the public peace. The charges are now before the BCSC for trial. As the $69,010 in cash seized from the back of the vehicle is required for the trial in BCSC, the trial judge should deal with any application for its return. The Crown relies upon the provisions of s. 490(4) of the Criminal Code in support of its position. [ 31 ] That

section reads:

(4) When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) to the clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk of the court and disposed of as the court directs. [ 32 ] The Crown concedes that the red iPhone, the gold bracelet and the $2,810 seized from Mr. Taylor’s person, are not required for Mr. Maki’s trial and can be returned to Mr. Taylor.

However, the Crown argues that the $69,010 seized from the rear seat of the vehicle supports the charge of possession for the purpose of trafficking and is required for Mr. Maki’s trial. The Crown relies upon the drug expert report of Sgt. MacIntyre in support of its position that the cash is connected to the drug offence. In addition, the Crown argues that Mr. Taylor has not established that he possessed the cash seized from the back of the vehicle, as he provided Cst. Linde with a warned statement that he owned nothing in the vehicle. Possession of the Cash [ 33 ] Mr.

Taylor argues that he possessed the $69,010 in cash seized from the back of the vehicle. In cross-examination, Cst. Linde agreed that he did not include in his affidavit filed in support of these proceedings, any information concerning Mr. Taylor’s employment or source of funds. Cst. Linde agreed that he was aware that Mr. Taylor worked as a personal trainer with a franchise and referrals. However, in his statement to Cst. Linde, Mr. Taylor denied owning anything in the vehicle, he denied he had any bags in the vehicle and stated the vehicle is a company vehicle. [ 34 ] Mr.

Taylor did not present any evidence to establish that he is the owner of the $69,010 seized from the back seat of the vehicle, in support of his application for the return of the cash. Mr. Taylor did not provide any affidavit evidence establishing that he had possession of the cash seized from the back seat of the vehicle. There were no documents produced to establish that the seized cash came from Mr. Taylor’s employment as a personal trainer, or that the funds related to a franchise or referrals. [ 35 ] In his application, Mr.

Taylor asserts that he is the lawful owner of the seized items, including the $69,010 from the back seat of the vehicle. Yet no evidence was presented to establish he possessed the $69,010 seized from the back seat of the vehicle. Rather, the testimony and affidavit of Cst. Linde suggests the opposite, that Mr. Taylor denied possession of any items seized from the vehicle, other than the items seized from his person. [ 36 ] In the circumstances, I am not satisfied that Mr. Taylor has established he possessed the $69,010 seized from the back of the vehicle.

In any event, that is not the sole determining factor on this application. May Be Required [ 37 ] The issue to be determined on this application is whether the $69,010 seized from the back seat of the vehicle, may be required for the trial of Mr. Maki. [ 38 ] The Form 5.2 is in Mr. Maki’s name. It includes the items that were seized from Mr. Taylor. Mr. Maki has been charged with an offence of possession of a controlled substance for the purpose of trafficking. The affidavit of Cst. Linde filed in these proceedings, refers to the drug expert report of Sgt.

MacIntyre, setting out that the $74,680 seized from the vehicle is consistent with a cash-based business, and the discovery of large sums of cash is common in higher-level drug trafficking operations. The expert’s opinion is that the amount of money discovered is supported by the level of drugs seized. [ 39 ] The police seized $69,010 from the back seat of the vehicle. The Crown argues that this money is required for the trial of Mr. Maki in relation to the drug offence. [ 40 ] I am satisfied that the affidavit and testimony of Cst. Linde establishes that the seized cash is required for the drug offence in Mr.

Maki’s trial in BCSC. This is supported by the expert report of Sgt. MacIntyre. Therefore, I am satisfied that the Crown has established that the continued detention of the $69.010 is required pursuant to s. 490(9) of the Criminal Code . [ 41 ] In addition, I agree with the Crown that the provisions of s. 490(4) give the trial judge in BCSC the jurisdiction to determine the disposition of the seized cash. Conclusion [ 42 ] Mr.

Taylor’s application pursuant to s. 490(9) of the Criminal Code for the return of the gold 10 karat bracelet, the $2,810 and the red iPhone seized from him on January 19, 2020, by the RCMP is granted. [ 43 ] Mr. Taylor’s application pursuant to s. 490(9) of the Criminal Code for the return of the $69,010 seized from the rear of the vehicle on January 19, 2020, by the RCMP is dismissed. _____________________________ The Honourable Judge P. La Prairie

Provincial Court of British Columbia