R. v. Devries, 2012 NUCJ 01

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Devries, 2012 NUCJ 01 Date of Judgment: 20120125 File Number: 08-09-579, 08-10-57, 08-10-112, 08-11-581, 08-11-255 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: David (Ed) Devries _____________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Crown): M. Kruger Counsel (Accused): A. Crowe Location Heard: Iqaluit, Nunavut Date Heard: January 17, 2012 Matters: Criminal Code, s. 462.34 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) I. FACTUAL BACKGROUND

[ 1 ] The accused has been charged with multiple counts contrary to the Criminal Code of Canada (Code) and the Controlled Drugs and Substances Act (CDSA). During the investigation of the charges the police seized funds in the possession of the accused. [ 2 ] The accused filed an application to have funds seized released to his Counsel.

He filed an affidavit in support of the application that established the following uncontested facts. [ 3 ] The charges arose out of the activities of the accused with the Qikiqtaaluk Compassion Society (QCS) and its precursor organization. [ 4 ] QCS was incorporated on December 14, 2009, as a non-profit society to promote alternate healing methods for persons suffering from illness.

The primary intent of QCS was the safe provision of medical marijuana to patients in Nunavut. [ 5 ] When local banks refused to allow the QCS to maintain bank accounts the accused held cash in his residence and at the QCS’s office. [ 6 ] On August 14, 2009, the RCMP seized $537.55 from QCS and the accused pursuant to a warrant issued under

section 11 of the CDSA. [ 7 ] On January 29, 2010, the RCMP arrested the accused and, incidental to the arrest, seized $7,250 from the accused and his backpack without a warrant. [ 8 ] On January 29, 2010, the RCMP seized $693.10 from the QCS pursuant to a warrant under s.11 of the CDSA. [ 9 ] The accused intended to use the funds seized on January 29, 2010, to pay employees of QCS. [ 10 ] On September 11, 2011, the RCMP arrested the accused, and incidental to the arrest, seized $1,205 from the accused and $32,465 from his residence. II. ISSUE [ 11 ] The accused applies to have funds seized released to pay for his legal defence of the charges pursuant to

Section 462.34 of the Code . This application is partially opposed by the Crown. III. ARGUMENTS AND ANALYSIS A. Jurisdiction [ 12 ] As noted by Counsel for the accused, there is conflicting case law about the nature of assets that come within the authority of these sections.

Section 462.341 was first proclaimed in 1997 and extended the relief to a person who has an interest in money or bank-notes that are seized under the Code or CDSA. [ 13 ] However, some recent decisions have limited the scope of assets available for release. In R v Jackson, 2011 ONSC 366 , [2011] OJ No 179, Trotter J. ruled that the

section did not override the Court’s authority under s. 490 to forfeit offence-related property. However, in Terezakis v Canada (Department of Justice), 2000 BCSC 80 , [2000] BCJ No 68, Boyd J. did not accept the Crown’s argument that a

seized asset characterized as offence-related property was ineligible for release. [14] In Nargang v Canada (Attorney General), 2005 SKQB 277, [2005] SJ No 404, Krueger J. ruled that there was no jurisdiction torelease assets seized pursuant to a warrantless search. However, McIntyre J. took a broader view in R v Gader, 2001 SKQB 95, [2001] SJNo 105. [15] The Crown fairly conceded in argument that the funds seized in the case at bar were within the jurisdiction of this Court to considerfor release to the accused provided the other requirements were met. B.

Legal Principles for Authorization of Release of Funds [16] Both Counsel agree that the fundamental test for the release of funds seized was described by Shaughnessy J. in R v Comrie, [2007]OJ No 4502, 75 WCB (2d) 473, as follows: [11] The legal framework for this application is s. 462.34(4)(

c) of the Criminal Code. The

section provides that a judge may order thatproperty or part thereof be returned (subject to such reasonable conditions as the judge thinks fit) for the purpose of meeting thereasonable legal expenses of the Accused. The same

section provides that the judge must be "satisfied that the applicant has no otherassets or means available for the purpose set out in the paragraph and no other person appears to be the lawful owner of or lawfullyentitled to possession of the property. [17] Shaughnessy J. noted the funds may be released to meet reasonable legal expenses notwithstanding that they were acquired throughthe commission of an offence. [15] Accordingly, to be successful on this application the accused must establish on a balance of probabilities a possessory interest in themonies, the reasonableness of the request for legal expenses and the absence of other assets or means to meet this expense.

The courtmust also balance the needs of the Applicant against the possibility that the monies will be proven to be directly or indirectly, theproceeds of the crime committed by him. [18] Crown counsel conceded that the accused had the requisite possessory interest in the funds except for the $7,250 and $693.10seized on January 29, 2010. In cross-examination, the accused testified that he had subsequently satisfied any wage obligations to theemployees of QCS. The Crown argued that this Court must accept this evidence before finding the accused had the requisite possessoryinterest in these funds.

I accept the evidence of the accused and find he has a possessory interest to these funds. [19] The Crown concedes the accused’s affidavit establishes he has no other assets or means available to pay the legal expenses. C. Reasonable Legal Expenses (i).

Crown argument [20] Relying on R v Cheng, 2011 ONSC 4479, [2011] OJ No 3415 [Cheng] and R v Peterman, (ON CA), [2004] OJNo 1758, 185 CCC (3d) 352 [Peterman], the Crown argues that Counsel for the accused should be paid at the Legal Aid rate of $117.30per hour. [21] The Crown argues that Cheng held that a court must continue to be concerned with the possibility that expenditure of the seizedfunds at rates above the Legal Aid tariff could deprive the Crown of the ability to access the funds for forfeiture if the accused isultimately convicted.

Prior to the 1997 amendment the accused could not access the funds seized and all funds seized forfeited to theCrown upon conviction. While the amendment now authorizes the release of funds to the accused he should not gain any advantage. Asnoted in Peterman, courts in Ontario have, with few exceptions, rejected the proposition that enhanced rates above those authorized byLegal Aid are necessary to ensure that the accused receive competent counsel. [22] The Crown noted a number of practical considerations as well. First of all, the relatively small amount of money that was seized

will quickly be dissipated since the accused also faces sexual assault and possession of child pornography charges. If he were only facingthe latter charges he would receive counsel paid at the Legal Aid rates. Secondly, there are two cases going through the Ontario Court ofAppeal that could impact on the drug charges facing the accused. Finally, there is the potential that the accused’s Counsel will withdrawfrom the case when the funds are expended causing delays. (ii).

Defence argument [23] Relying on R v Love, [1990] AJ No 1290 [Love], Defence Counsel argues that “reasonable expenses” are not necessarily restrictedto the Legal Aid tariff. [24] Counsel for the accused also argues that Peterman is distinguishable because it was a Rowbotham application. She also pointed outthat this Court appointed counsel at fees above the Legal Aid tariff in R v Bishop, 2008 NUCJ 10, [2008] Nu J No 11. She assured theCourt she has been Counsel for the accused for some time without fees and has no intention of abandoning him at this stage of theproceedings. (iii).

Analysis [25] The only issue before me is what constitutes a reasonable hourly rate that Counsel for the accused should charge against the fundsseized. [26] In Peterman, Rosenberg J. stated: [29] There would appear to be two exceptions to this general proposition. First, in some unique situations it may be that an accused canestablish that he or she can only obtain a fair trial if represented by a particular counsel. In those unusual circumstances, the court may beentitled to make an order to ensure that the accused is represented by that counsel. This was the case in R. v.

Fisher and the genesis ofthe so-called Fisher order. But in making the order, Milliken J. recognized that he was faced with a unique case, and he suggested atpara. 20 that the circumstances that led him to make the order might not occur in Saskatchewan "in another thirty years". [30] Second, in unusual circumstances, the court may find that the accused simply cannot find competent counsel to represent him or heron conditions imposed by Legal Aid. One would expect those cases to be exceedingly rare.

For example, if the accused was unable toretain local counsel, Legal Aid would inevitably grant authorization to retain out-of-town counsel. See R. v. Swearengen (December 5,2002, unreported Ont. S.C.J.). Courts in Ontario have, with few exceptions, rejected the proposition that enhanced rates above thoseauthorized by Legal Aid are necessary to ensure that accused receive competent counsel. See R. v. Abu-Taha, [2001] O.J. No. 4278(S.C.J.), R. v. Montpellier, (ON SC), [2002] O.J. No. 4279 (S.C.J.), R. v. Swearengen, and R. v.

Magda, [2001] O.J.No. 1861 (S.C.J.). [27] However in Peterman, the court was analyzing the issues in the context of a Rowbotham application. In Bishop, the Nunavut LegalServices Board (LSB) refused to appoint a Toronto lawyer to represent the accused, arguing that there were competent legal counselavailable who were on the panel list. Although the application requested the lawyer be appointed through the Legal Aid plan or as aRowbotham application, Browne J. held it did not qualify as a Rowbotham application. She concluded she had the jurisdiction to orderthe LSB to appoint the Toronto lawyer.

She did not have to consider whether he should receive a higher rate because he agreed to workat Legal Aid rates. As a result, neither case is helpful in this application. [28] I accept the reasoning in Love that the Legal Aid tariff is not determinative of what is reasonable. I adopt the following words ofConrad J.: [31] Indeed, the word "reasonable" should be given its very ordinary meaning. Reasonable fees have a meaning within the practice oflaw, and it is that meaning which the words should bear.

I do not think it is unreasonable that a person who has funds would choose acounsel of his choice with whom he is familiar from British Columbia, providing expenses are kept reasonable. There would, of course,be a point of travel at which I think it would be unreasonable. Again, the fees should be reasonable fees in relationship to what the cost ofcomparable services would cost in the area.

[ 29 ] Counsel for the accused is prepared to charge a very reasonable figure of $200 per hour given that she has been in practice for over 20 years. I am also satisfied that she will remain on the file to its conclusion. Since it appears all the files will be resolved in the near future there is no reason to wait for the Ontario cases. [ 30 ] The draft Order submitted by Counsel for the accused is granted and the funds shall be released to Counsel for the accused as set out in the Order. Dated at the City of Iqaluit this 25th day of January, 2012 ____________________ Justice Earl D. Johnson Nunavut Court of Justice