2023 QCCQ 424, 2023 QCCQ 424

R. c. Goikhberg 2023 QCCQ 424 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal and Penal Division No: 500-73-003628-118 DATE: February 1, 2023 PRESIDED BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. HIS MAJESTY THE KING APPLICANT v. YAFIM GOIKHBERG RESPONDENT [1] JUDGMENT ON DISPOSAL OF THINGS SEIZED, SECTION 490 (9) CR.

CODE [ 1 ] The Public Prosecution Service of Canada (the applicant) asks the Court to dispose of items that were seized pursuant to four search warrants executed in November 2009. [2] The items in question, identified in annexes A, B, C, and D of their motion, consist mostly of documents and also include some objects such as stamps or seals. None of these items is now required for any prosecutorial purpose. The context [ 2 ] In 2009, the Canada Border Services Agency (CBSA) conducted an investigation concerning false refugee claims.

The respondent and a person named Rinat Valleev were targets of this investigation, suspected of falsely representing themselves as immigration consultants. In the course of this investigation, warrants were obtained to search the respondent’s residence, vehicle, and a condominium he owned, as well as the residence of Mr.

Valeev. [ 3 ] On November 5, 2009, hundreds of documents were seized pursuant to these search warrants, including fraudulent third-party immigration files, visa applications and refugee claims. [ 4 ] Charges were laid in the present file in July 2011, in an information containing 149 counts, including misrepresentation, forgery and use of false documents, in violation of the Immigration and Refugee Protection Act and of the Criminal Code . [3] [ 5 ] Parallel to these charges laid by the applicant, the respondent was also charged by the provincial prosecutor in 2010 with 24 counts of fraud, forgery, using forged documents and extortion, based in part on some of the evidence seized by the CBSA. [4] In that file, the respondent was found guilty following a trial before judge and jury of five counts of fraud, seven counts of fabricating false documents, five counts of using false documents, one count of possession of an instrument used to fabricate false documents and two counts of extortion.

He was sentenced to five years in the penitentiary on September 9, 2011. [5] [ 6 ] On August 23, 2013, the applicant proceeded by way of direct indictment in the present file, reducing the number of counts to 81. [6] However, this matter never proceeded to trial as the applicant finally entered a stay of proceedings on November 14, 2016. [7] [ 7 ] Since that date, the retention of the seized items is no longer required. Although some items have already been returned to their lawful owners, [8] most of them, stored in 15 boxes, are still in the possession of the CBSA.

Order sought [ 8 ] The applicant asks the Court to dispose of the remaining items, in the following manner: - the items highlighted in green in annexes A and B belong to the respondent and should be returned to him; - the items highlighted in green in annex D belong to Rinat Valeev but because there is no practical way of returning these to him, the applicant asks that they be forfeited to His Majesty; - the items not highlighted in annexes A, C and D should be forfeited to His Majesty to be disposed of as the Attorney General of

Canada directs, [9] because, as the applicant submits, the possession of them was unlawful and they are tainted by criminality, comprising offense-related property. The law [ 9 ] Section 490 (9) Cr.

C. stipulates that a judge shall order an item returned to the person from whom it was seized or to the lawful owner or to the person lawfully entitled to possession where (1) the period of detention has expired and proceedings have not been instituted, or (2) the period of detention has not expired but the continued detention is not required for any purpose listed in the Criminal Code . [ 10 ] According to section 490 (9) (c), if possession by the person from whom the item was seized is lawful, a judge shall order the item to be returned to that person.

According to section 490 (9) (d) , if possession by the person from whom the item was seized is unlawful and the lawful owner is known, the judge shall order the return of the item to the lawful owner or to the person lawfully entitled to its possession. [ 11 ] Finally, according to section 490 (9) (d), if possession by the person from whom the item 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 lawfully entitled to its possession is not known, the judge may order the item to be forfeited to his Majesty, to be disposed of as the Attorney General directs. [ 12 ] As Kasirer, J.C.A. (as he then was) explained in Desjardins c .

R. , [10]

section 490 of the Criminal code provides a regime for the management of seized and detained things. It provides that things seized shall be returned to their lawful owner unless they are required for the purposes of an investigation, preliminary inquiry, trial or other proceeding (490

(1) Cr. C.) and it sets out the period during which things seized may be held (490 (2) and

(3) Cr. C.). It provides for the return of things to their lawful possessor or, under certain conditions, for forfeiture to His Majesty where there is no lawful owner (490

(9) Cr. C.). [ 13 ] One situation where there is no lawful owner − thus requiring forfeiture − is where the thing seized is “offense–related property”, which is defined in

section 2 of the Criminal Code : “offense-related property” includes any property that is used in any manner in connection with the commission of an offense under the Criminal Code , or that is intended for such use. Analysis [ 14 ] The Court is satisfied that the items highlighted in green may be returned to their lawful owners.

In the case of the items belonging to the respondent (items highlighted in green in annexes A and B), these will be placed at his disposal to be collected within 90 days. [ 15 ] Regarding the items belonging to Rinat Valeev (essentially handwritten notes, correspondence, business cards, expired Russian identity documents of Rinat Valeev, as well as a black leather handbag), [11] the applicant has established through documentary evidence and the testimony of Detective Sgt. Sylvie Paquette, that despite her best efforts, there is no practical way to return these items.

Verifications made by the Detective Sgt. indicate that Mr. Valeev is no longer in Canada, as he was deported to Russia in 2010. Her attempts to positively identify him through email correspondence were unsuccessful. [12] [ 16 ] Considering the impossibility to locate Mr.

Valeev and the absence of any application by him pursuant to section 490 (10) for the return of these items, they will be forfeited to His Majesty. [ 17 ] Regarding the remaining items, not highlighted, in annexes A, C and D, the applicant submits that these should be forfeited because the evidence establishes that the possessor at the time of the seizure was not lawfully entitled to them, and their nature is such that there can be no lawful owner entitled to them.

The burden rests on the applicant to establish this beyond a reasonable doubt [13] and the Court finds that it has met its burden. [ 18 ] Hundreds of immigration records were seized, including immigration forms, correspondence, letters of invitation to an interview and results of immigration applications. The evidence has established that neither the respondent nor Mr. Valeev were accredited immigration consultants, or members of the Québec Bar.

As such, they had no authority to represent any immigrants requesting immigration to Canada. [14] [ 19 ] Further, among the items seized are forged identification documents, expired third-party bank cards and objects that could be used for forging documents. The testimony of Detective Sgt.

Paquette provides clear evidence of this, referring for example, to forged documents containing seals purporting to be those of official institutions in Moldova; [15] to the actual seals themselves which were also seized; [16] and to affidavits sworn in 2009, with an embossed seal identifying the respondent as a Commissioner of oaths, when in fact he had no valid commission in 2009. [17] [ 20 ] As explained earlier, many of the documents seized by the CBSA provided the basis for the evidence in the trial of the respondent in 2011.

Documents referring to several of the named victims in that matter [18] are among the seized items.

The scheme employed by the respondent to extort money from immigrants to Canada, to defraud them and to defraud the Ministère de l’emploi et de la solidarité sociale is explained in detail in the sentencing judgment of Bourque J.S.C. [19] [ 21 ] Without the need to review each and every item found in the 15 boxes, the circumstantial evidence leaves no reasonable doubt that all of the items seized form part and parcel of the illegal activities that the respondent was convicted of, and they constitute “offense- related property”.

As such, the possession of these items was unlawful at the time of seizure and there is no lawful owner of them, nor person entitled to them. FOR THESE REASONS, THE COURT:

grants the present motion; orders that the items highlighted in green in annex D be forfeited to His Majesty, to be disposed of as the Attorney General of Canada directs; orders that the items not highlighted in annexes A, C and D be forfeited to His Majesty, to be disposed of as the Attorney General of Canada directs; orders that the items highlighted in green in annexes A and B be returned to the respondent, Yafim Goikhberg, by informing him of the manner in which he may take possession of these items and providing him with a period of 90 days to do so; orders , in the event that the respondent does not take possession of the items highlighted in green in annexes A and B within 90 days, that these be forfeited to His Majesty, to be disposed of as the Attorney General of Canada directs; __________________________________ LORI RENÉE WEITZMAN, J.C.Q.

Me Marie Michèle Paquin Public Prosecution Service of Canada For the Applicant Date of hearing: January 27, 2023