2013 NBPC 18, 2013 NBPC 18

Éric Normand v. Her Majesty the Queen – 2013 NBPC18 File No.: 02906808 CANADA PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT B E T W E E N: ÉRIC NORMAND Applicant -and- HER MAJESTY THE QUEEN Respondent BEFORE: The Honourable Paul E. Duffie, judge of the Provincial Court of New Brunswick DATE OF HEARING: May 23, 2013 DATE OF DECISION: September 3, 2013 APPEARANCES: Charles G. Couturier, for the Crown Mélanie Tremblay, for the applicant, Éric Normand DUFFIE J.: [TRANSLATION] INTRODUCTION [ 1 ] The applicant, Mr.

Normand, asks the Court for the return of a truck he had in his possession, and which was seized without a warrant by the Royal Canadian Mounted Police on January 25, 2013. [ 2 ] The application was filed under s. 490(7) of the Criminal Code of Canada; the applicant seeks an order under s. 490(9) (

c) of the Criminal Code for the return of the seized truck. [ 3 ] The vehicle is alleged to have been stolen from Desjardins Ford, a dealership in Lévis, Quebec, in November 2012. No criminal proceedings have been commenced against Mr. Normand for the theft of this truck or for possession of property he knew had been stolen. Issue [ 4 ] Who is entitled to the actual possession of the stolen truck? The original owner, Desjardins Ford, or, if the dealership ceded its rights, its insurer, or, alternatively, Mr. Normand, its current owner? Facts [ 5 ] Mr.

Denis Plourde, Vehicle Inspector for the New Brunswick Department of Public Safety, received information from the Saint-Leonard Service New Brunswick office regarding a registration application for a vehicle with a non-existent serial number. Following an investigation, he filed a complaint with the Royal Canadian Mounted Police. [ 6 ] Constable Yves Richard testified that he was assigned the complaint filed by Mr. Plourde, and that, following an investigation, he seized a 2012 Ford F-350 bearing serial number 1FT8W3BT5CEC89975 from Mr. Éric Normand on January 25, 2013. [ 7 ] Mr.

Guy Ouellette, of the Insurance Bureau of Canada, was declared an expert regarding vehicle identification.

Mr. Ouellette examined the vehicle seized by Constable Richard and concluded that the serial number 1FT8W3BT5CEC89975 which appeared in different places on the vehicle was false. [ 8 ] He conducted various technical verifications to find the real number of the vehicle and found that the original serial number of the truck was 1FT7WBT2CEC78888, which matched a 2012 4X4 Ford F-250 crew cab. In his testimony, Mr. Ouellette submitted that the changes to the original serial number were done by a professional and seemed to be the work of organized crime. Therefore, the vehicle Mr.

Normand believed he had purchased, that is, a 2012 Ford F-350, was actually a 2012 Ford F-250 which had been disguised to look like an F-350. [ 9 ] The parties agree that the vehicle was stolen from Desjardins Ford, a dealership in Ste-Foy, Quebec. Mr. Normand alleges that he purchased the vehicle in good faith and did not know that it had been stolen. [ 10 ] Mr. André Lalande, accountant with Desjardins Ford, testified that the vehicle was stolen from their inventory in November 2012.

He introduced into evidence the manufacturer’s invoice (Exhibit C-7) for the truck, which shows that the cash price was $71,820.00 and the suggested retail price was $80,229.00. He stated of course that a vehicle is always sold at a lower price than the suggested retail price. For example, he said that a special price might be offered to their volume customers such as Hydro Québec; that price would be around $70,527.00. For one of their employees, the price would be $73,348.00.

For an ordinary customer, the price would fall somewhere between the cash price and the suggested retail price. [ 11 ] The following exhibits were filed by the Crown and admitted into evidence: Exhibit C-1: Document – Proof of competency of Mr. Guy Ouellette, investigator with the Insurance Bureau of Canada; Exhibit C-2: Document –

Summary of the evidence prepared by Mr.

Guy Ouellette, Insurance Bureau of Canada; Exhibit C-3: Affidavit of Constable Yves Richard which includes hearsay evidence admitted by consent of the parties; Exhibit C-4: Affidavit of Éric Normand; Exhibits C-5 and C-6: Series of photos of the truck; Exhibit C-7: Invoice from Desjardins Auto showing the cost of the vehicle and the suggested retail price; Exhibit C-8: Certificate issued by the Registrar of Motor Vehicles of New Brunswick confirming that their database does not contain any record for a vehicle bearing identification number VIN 1FT8BT3CEC89974; this was the number of the first vehicle Mr.

Normand intended to register. Exhibit C-9 includes several documents: Registration certificate for a Ford F-350 bearing identification number 1FT8W3BT5CEC89975; Invoice issued by numbered company 8055106 Canada Inc. to Mr. Normand for a 2012 Ford F-350 bearing identification number 1FT8W3BT5CEC89975, and sold for the amount of $45,000.00; A certified copy of a registration certificate for a 2012 Ford F-350 issued by the Registrar of Motor Vehicle Services of Alberta to numbered company 8055106 Canada Inc.; Registration receipt issued by Service New Brunswick to Mr. Normand for the vehicle he purchased.

Evidence of the defence [ 12 ] Mr. Normand testified that he is 38 years old, a heavy machinery operator and a business owner since 2000. Most of his activity consists in building and maintaining forest roads for logging companies. [ 13 ] He added that he owns several pieces of equipment for this purpose and is always looking for equipment at good prices. Indeed, several documents filed by the defence and admitted into evidence show that Mr.

Normand does buy equipment from various sources, including through the Internet from individuals he does not know, and without having the opportunity to check out the equipment first, except sometimes just before the purchase is completed. [ 14 ] Regarding the truck, Mr. Normand testified that he met with a Pierre Daigle at his business premises in Kedgwick, New Brunswick, in November 2012. Mr. Daigle introduced himself as an equipment vendor. In the course of the conversation, Mr. Normand mentioned that he was interested in purchasing a Ford F-350 truck. Mr.

Daigle told him that he would find out if such a truck was available and would report back. [ 15 ] Mr. Normand also testified that he was interested in the truck because he wanted to tow a trailer. He already owned a Ford F-250, but did not find it powerful enough to tow his trailer. [ 16 ] Mr. Normand said that Mr. Daigle contacted him shortly after their first meeting to inform him that he had a 2012 F-350 truck for sale and that the purchase price was $60,000.00. He came to an agreement with Mr. Daigle to purchase the truck and gave him a deposit of $8,000.00.

However, when he went to the Service New Brunswick office to register the truck, he learned that there was an identification problem with the truck. He informed Mr. Daigle of the problem and the latter told him not to pursue the registration of the truck and that, as a matter of fact, he had found him another 2012 F-350 truck for a better price. [ 17 ] Mr. Normand came to an agreement with Mr. Daigle for the purchase of the second truck, for the amount of $45,000.00, and he was able to register that vehicle.

Although the truck was registered, Service NB eventually found that there were irregularities regarding its serial number, and the RCMP seized it in January 2013. [ 18 ] In his testimony, Mr. Normand stated that the first truck was new and the second was used.

[ 19 ] He adduced into evidence two examples of used truck ads found on the Internet site Kijiji , one for a 2011 F-350 with 94,685 kilometres for $47,990.00 and the other for a 2012 F-350 with 121,135 kilometres for $45,995.00, to explain why he had purchased his $45,000.00 truck from Mr. Daigle. [ 20 ] Finally, Mr.

Normand categorically stated that he never, at any time, suspected that the truck was a stolen vehicle. [ 21 ] During cross-examination by the prosecution, he made the following statements: He regularly purchased equipment and vehicles without carrying out extensive research and without checking them over before buying; he noted that several examples of this were admitted into evidence; The truck he purchased was a 2012 model with approximately 7,000 kilometres when he took possession of it, and in his view it was a used truck despite it having such low kilometrage; At first, he could not give the full name of the vendor to the RCMP because he had lost his business card, but he found the card later; He paid the $8,000.00 deposit and the balance of $37,000.00 in cash; He did not get a receipt for the amount of $8,000.00, but he did get one for the full price of the vehicle; He believed that Mr.

Daigle was only a go-between for the company which owned the vehicle; He did not know anything about the company identified on the invoice; After he bought the truck, he was never able to contact Mr. Daigle again using the telephone number on his business card; in addition, he did not know where Mr. Daigle lived; He admits that the price of the truck was a bargain; however, he believed that this was for a used truck. He stated that Mr. Daigle’s asking price was $48,000.00, but that he managed to negotiate the price down to $45,000.00.

He admits that before purchasing the truck, he looked for F-350 models for sale and found some for which the asking prices were higher than the $45,000.00 he paid; Mr. Normand reiterated that the price was a bargain. He stated that "a deal is a deal" and "I got a good deal." He admits that he did not begin to have doubts and did not feel any worry after not being able to register the vehicle; however, he notes that the first truck was new while the second one was used. He took possession of the vehicle and of the sale documents from Mr.

Daigle in Lévis, Quebec, at a Tim Hortons restaurant. [ 22 ] The following exhibits were filed by the defence and admitted into evidence: Exhibit D-1: Pierre Daigle’s business card. Exhibit D-2: ad for an F-350 truck for sale on Kijiji. Exhibit D-3: ad for an F-350 truck for sale on Kijiji . Exhibit D-3 [ sic ]: invoice in the amount of $60,000.00 issued by Dupuis Ford for an F-350. Exhibit D-5: various invoices for equipment purchased by Mr. Normand. Exhibit D-6: various invoices for equipment and a vehicle purchased by Mr. Normand on the Internet. Position of the parties The applicant – Mr.

Éric Normand [ 23 ] Mr. Normand did not contest the fact that the vehicle was stolen from the Desjardins Auto dealership. However, he maintained that he purchased it in good faith and that he had no way of knowing that it had been stolen. [ 24 ] In addition, he stated that he had nothing to hide and that he fully cooperated with the peace officers.

He added that the documents from the Registrar of Motor Vehicle Services of Alberta seemed legitimate, and that he is still convinced that he simply got a bargain. (See Exhibit C-9.) [ 25 ] The applicant points out that Exhibits D-5 and D-6 show that he had a lot of experience in the purchasing of equipment and vehicles in various circumstances, and always at a good price. [ 26 ] He admits that the asking price for the truck was low, but not unreasonably so in the circumstances. He noted that there are always a lot of reasons why someone wants to sell something at a bargain price.

He stated that he had simply made a good deal, as he is used to negotiating that type of purchase. He also indicated that he had bought the truck at the end of 2012, which allowed him to get an even better deal. The respondent – The Crown [ 27 ] Crown counsel submits that many factors render the transaction between Mr. Normand and Mr. Daigle illegal. He stresses the following: • The fact that Mr. Normand paid cash for the vehicle immediately raises a red flag. In addition, Mr. Normand gave someone he didn’t know an $8,000.00 deposit without getting a receipt. • It is strange that Mr.

Normand did not question the validity of the second transaction after the first one failed when he tried to register the vehicle. Mr. Normand just went on obliviously to negotiate another purchase, this time of a nearly new truck for half the

regular price. Counsel points out that this is another obvious red flag. • Counsel contends that Mr. Normand was wilfully blind to the real nature of the transaction. He knew or should have known that the sale price was too much of a bargain in the circumstances for the transaction to be legitimate. • Moreover, he traveled to the Province of Quebec to buy a truck he had never seen from someone he didn’t know and paid for it in cash.

This, according to counsel, is the last red flag signaling an illegal transaction. [ 28 ] Crown counsel maintains that the doctrine of recent possession as well as that of wilful blindness apply in the circumstances. His position is that the evidence as a whole shows that Mr. Normand did not question at all the validity of the transaction because he wanted to take advantage of the low price for the truck, a price the Crown considers unreasonable in the circumstances. The Crown asks that the vehicle be returned to its rightful owner, that is, Desjardins Auto’s insurance company.

Analysis [ 29 ] The Court reviewed the jurisprudence and the authorities submitted by both parties and appreciates their efforts in preparing their respective cases. The issue to be decided [ 30 ] Following a hearing held under s. 490(9) of the Criminal Code , should the vehicle seized from Mr. Normand be returned to him, or to its owner without compensation to Mr. Normand? [ 31 ] The parties agree that the Court has jurisdiction to decide the issue under s. 490(9) of the Criminal Code . For convenience, the Court reproduces part of s. 490(9): 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[.] [ 32 ] First, the Court makes the following findings: • Mr. Normand was in possession of the vehicle when it was seized by the police; • The vehicle was stolen from Desjardins Auto, a car dealership in Quebec; • The identification number of the vehicle was illegally modified, and according to the expert, Mr.

Guy Ouellette, this was done professionally by someone affiliated with organized crime; • The vehicle was disguised to appear to be a 2012 Ford F-350, while the evidence clearly shows that it actually is a 2012 Ford F- 250; • Mr. Normand paid $45,000.00 for the truck and registered it with Service New Brunswick. [ 33 ] In Boudreault et 3093-2313 Québec inc. (Constructions Larry enr.) , 2006 QCCQ 128 , Lortie J. sets the applicable framework at paragraph 18, page 11, as follows: [TRANSLATION] [18] In Blache v.

Solution Location d’Autos Inc. , Justice Claude Provost applies these principles and explains the concept of illegal possession: [TRANSLATION] In this regard, possession of a thing can be illegal in both cases from a criminal point of view: first, if the thing possessed by the person from whom it was seized cannot under any circumstances be possessed legally (for example, counterfeit money, certain drugs, prohibited weapons); secondly, if the thing possessed does not fall into the first category and is being possessed with illegal intent, knowledge or purpose (for example, burglar’s tools) . . .

Regarding the burden of proof, it lies upon the person who had possession at the time of the seizure to prove ownership. This proof entails the application of the presumption of lawful possession. It falls upon the party who contests the presumed legality of this possession to prove beyond a reasonable doubt its criminal illegality.

[34] In this regard, the Court has already found that Mr. Normand was in possession of the vehicle at the time of theseizure; at this stage, therefore, he benefits from the presumption that his possession is legal. [35] The position of the Crown is that Mr. Normand knew or should have suspected that the vehicle had been stolen,but he simply chose to turn a blind eye to take advantage of a very good price for a vehicle which had obviously been illegallytransferred. [36] Of course, Mr. Normand is presumed innocent and it is for the Crown to prove beyond a reasonable doubt thatMr.

Normand’s possession of the vehicle was illegal. [37] Reasonable doubt is based on reason and common sense. Logically, it is connected to the existence or absence ofevidence. [38] It is not enough for me to believe that Mr. Normand may have been, or probably was, in possession of thevehicle illegally. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to abalance of probabilities.

At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolutecertainty. [39] In evaluating the witnesses’ credibility in the instant case, I am mindful of the principles set out by the SupremeCourt of Canada in R. v. W.(D.), (SCC). [40] Furthermore, the Crown contends that the doctrine of recent possession and that of wilful blindness apply in theinstant case. [41] The doctrine of recent possession was explained as follows in R. v.

L’Heureux [sic], (SCC),[1985] 2 S.C.R. 159: [TRANSLATION]This doctrine allows the Court, when a person is in possession of a stolen thing, to infer that the person knew that the thing hadbeen stolen even absent other evidence of guilt. Except in the event that the person contradicts himself while giving evidence, theCourt must acquit him if it is possible that his explanation could be true, even though the Court is not convinced that it is. [42] Determining if possession is recent is a question of fact which is dependent on the evidence as a whole.

Theperiod of time between the date on which the item was stolen and the date on which the person is found in possession of it is animportant factor in this determination. [43] For example, it is more likely that the doctrine of recent possession will apply if a person is found in possessionof the stolen item a few hours after the theft than if that person is found in possession of it a few months after the theft. [44] In the opinion of the Court, the doctrine of recent possession does not apply here. The Court finds thatMr.

Normand’s evidence as a whole contradicts the notion that he had recent possession after the theft. For one thing, Mr. Normand wasfound in possession of the vehicle in January 2013, while according to the evidence the vehicle was stolen in November 2012. In itself,the period elapsed precludes the application of the doctrine. [45] The doctrine of wilful blindness is explained as follows in R. v. Lagacé (2003), (ON CA),181 C.C.C. (3d) 12 (Ont. C.A.): [TRANSLATION]The application of the doctrine of wilful blindness only requires proof that the accused actually suspected that the property hadbeen stolen.

It is not necessary to otherwise quantify this suspicion. It is enough that the suspicion gives rise in the accused’smind to a need to make further inquiries. The accused who makes inquiries to allay his suspicions may nonetheless be foundguilty if, in spite of his inquiries, he is still suspicious but chooses to remain ignorant of the truth. In that case, the nature of hisinquiries is an important consideration. However, it is not necessary for the accused to prove that he took all reasonable steps inhis inquiries.

The burden of proof lies upon the prosecution. [46] That said, and having considered the doctrine of wilful blindness, it is now appropriate to review Mr. Normand’sevidence in the light of the principles set out in R. v. W (D). The Court is of the opinion that his testimony raises a reasonable doubt in thecircumstances for the following reasons: • The Court is satisfied based on the documentary evidence and Mr. Normand’s testimony that he is a businessman with severalyears of experience in the purchase of various vehicles and pieces of equipment. • In addition, the Court is also satisfied that Mr.

Normand informally purchased several of these items in the past on the Internet and

in other ways. This seems to be the nature of his business and his know-how in the field. He is a wheeler-and-dealer who does business with all sorts of people all over the country, most of whom he does not know. • At first sight, the fact that he paid cash should constitute, as the Crown stressed, a red flag. However, the documentary evidence admitted into evidence (see Exhibit D-5) shows that he has paid cash for sizeable purchases before; it may be unusual for a large segment of the population to conduct transactions this way, but not for Mr. Normand. • The Court is also satisfied that Mr.

Normand concluded Mr. Daigle had legal authority to sell the vehicle based on the registration certificate from Alberta which Mr. Daigle had provided. After all, this was a certified copy from the Registrar of Motor Vehicle Services of that province. • The Court accepts Mr. Normand’s uncontested testimony that he paid $45,000.00 for the vehicle and that he paid HST on that amount when he registered it. There is no doubt that this price was a real bargain, but in the view of the Court it was not unreasonable.

This is still a considerable amount of money for someone to pay and is certainly not a frivolous amount in the circumstances. • Furthermore, there is no evidence that Mr. Normand is a member of organized crime or that he played a role in the theft of the vehicle or in modifying it. • Finally, Mr. Normand was himself deceived in the transaction since he believed he had purchased a 2012 Ford F-350 when the expert, Mr. Ouellette, clearly identified it as a 2012 Ford F-250. Recall that Mr.

Normand testified that he already owned a Ford F-250 and wanted a Ford F-350. [ 47 ] For the foregoing reasons, the Court orders that the vehicle be returned to the applicant, Mr. Éric Normand. Signed at Grand Falls, New Brunswick, on this 3rd day of September, 2013. ………………………………………….. Paul E. Duffie Judge of the Provincial Court of New Brunswick