r v. DAVID TOMLIN, 2023 QCCQ 8011

R. c. Tomlin 2023 QCCQ 8011 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI LOCALITY OF VAL-D’OR “Criminal and Penal Division” No.: 615-21-002519-230 DATE: October 4, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE MARIE-FRANCE BEAULIEU, P.J.P. ______________________________________________________________________ HIS MAJESTY THE KING, seizor v. DAVID TOMLIN, person from whom the property was seized and GUR JINDER SINGH GILL, owner and SÛRETÉ DU QUÉBEC, custodian of the thing seized Impleaded Party ______________________________________________________________________ Judgment on an application for an order under

section 490 of the Criminal Code for the return of property seized ______________________________________________________________________ OVERVIEW [ 1 ] A police officer acting as custodian of the property seized appears before the Court to ask for the return [1] of the property seized without a warrant given that it is no longer required for the purposes of an investigation or legal proceeding. No charges will be laid in the file. The two impleaded parties claim lawful ownership or lawful possession of the property. [ 2 ] The Court must order the return of the property, but to whom? ISSUE [ 3 ] The Court must determine to whom the trailer currently seized must be returned pursuant to

section 490 of the Criminal Code . BACKGROUND [ 4 ] On April 8, 2023, in the context of a possession of stolen goods investigation, the police decided to seize without a warrant a Stealth semi-trailer in Val-d’Or, at the home of David Tomlin. [ 5 ] They received reliable information that the trailer was stolen. The owner, Gur Jinder Singh Gill, is in Alberta. On March 30, 2023, he contacted the Val-d’Or police department because, according to his GPS tracker, the trailer was in Val-d’Or. [ 6 ] The location was identified by the police using the geolocation coordinates.

It was a business and garage operated by David Tomlin. After opening hours, a police officer went to the premises to verify whether the trailer was there or not. It was spotted only on their second visit, on April 7, 2023. [ 7 ] On April 8, 2023, the trailer was seized for expert assessment with David Tomlin’s consent. Mr.

Gill went to Val d'Or and formally identified his trailer. • Testimony of Officer Éric Leclerc, Sûreté du Québec [ 8 ] Officer Éric Leclerc testified regarding the steps taken by the Sûreté du Québec to verify the authenticity of the property. [ 9 ] Here is the information collected: DAVID TOMLIN (Val-d’Or) GUR JINDER SINGH GILL (Alberta)

− Acquisition on January 7, 2023, in Ontario − Seller James Fardell − Handwritten document signed, but not dated − Registration and proof of insurance in Quebec, in the amount of $17,500 − Serial number ending in 2206 Characteristic with the 2206 serial number: − Make: Stealth; black, cargo, 2 axles, year 2017, 12 feet long, trailer registered in Ontario − Purchase documents provided are those registered in Ontario − Acquisition on November 1, 2022, in Calgary, Alberta, from a merchant, Christal Indo − Licence plate with Alberta number filed − In the amount of $27,000 − Serial number ending in 1986 Characteristic with the 1986 serial number: − Make: Stealth; black, cargo, 2 axles, year 2019, 8 x 24 feet in size − Based on the serial number, this trailer was manufactured in September 2018 [ 10 ] A Sûreté du Québec technician, Officer Audet, analyzed the trailer.

Here are his observations: [ 11 ] In his report dated June 7, 2023, he concluded that the trailer constitutes proceeds of crime. [ 12 ] At the time of the expert assessment, the trailer did not have a licence plate. The sticker where the serial number is affixed inside the trailer had signs of deliberate sanding making it unreadable. The hitch at the front of the trailer was stamped with the 2206 serial number.

According to the technician, it is unusual in this industry for a manufacturer to use stamping and to put a serial number on the front hitch. [ 13 ] After consulting the Quebec Police Information Centre using the number stamped on the front hitch ending in 2206, the technician learned that this information matched a 12-foot long 2017 black Stealth cargo trailer.

However, verification of the coding with the Stealth company indicated instead that the 2206 number belongs to a 16-foot long 2018 trailer. [ 14 ] Regarding the specific features of the trailer, the technician Audet stated that the date of manufacture was September 2018, which could correspond to a 2019 trailer. [ 15 ] In addition, he positively identified the trailer seized by watching the video he received from Mr. Gill (who was given the video at the time of purchase by the original seller in Alberta) as the one belonging to the owner applicant (Mr.

Gill). [ 16 ] It matched his in every respect: measurements (length, width, height), modifications, as well as visible damage. [ 17 ] Given the altered serial number, the technician concluded in his report that the trailer seized in Val-d’Or should bear the serial number ending in 1986 and not the 2206 serial number stamped on the front hitch. That number is not the correct one. [ 18 ] Using the tracking system installed in the trailer’s right inside corner, Mr.

Gill tracked his trailer and reported it to the Sûreté du Québec. [ 19 ] The report of the Sûreté du Québec technician concluded that it was proceeds of crime due to the fact that the serial number had been deliberately altered to make it unreadable. He formally authenticated the property as a black Stealth double-axle cargo trailer, with a serial number ending in 1986. [ 20 ] That number matches the one provided by Mr. Gill. • Testimony of Mr. And Ms. Gill: [ 21 ] Mr. Gill reported the theft to the Calgary police in November 2022.

After some time, he located his property in Ontario using his tracking system (GPS tracker). Two friends residing in Mississauga tried to help him locate it. They went to the location in Ottawa described by Mr. Gill. They were unsuccessful, however. Other steps were taken with the Ontario police; they were inconclusive. [ 22 ] Concerning the delay in finding the trailer, Mr. Gill left for a trip to India for some time. During this period, his wife continued to try to locate their trailer. Considering the distance, she could not go to Ontario. On March 27, 2023, the geolocation indicated an address in Val d’Or.

On April 8, 2023, Mr. Gill went to Val d’Or to identify his trailer and give all his evidence to the police authorities. • Testimony of David Tomlin [ 23 ] David Tomlin submits that he purchased a 2017 Stealth trailer, model 8524, that was listed on the Marketplace website for $18,500.

He negotiated the price down to $17,500 due to some damage on the trailer. [ 24 ] Since the papers of the seller in Ontario matched the serial number stamped on the front hitch, he thought everything was legitimate. [ 25 ] However, according to the manufacturer, the trailer with number 2206 (the altered serial number) was 16 feet long The evidence instead establishes that the trailer was a 24-foot 2019 trailer with the 1986 serial number.

[ 26 ] The sales document signed in Ontario on January 7, 2023, indicates a length of 24 feet. It was only on March 3, 2023, that the transaction to obtain a Quebec licence plate took place at the SAAQ. The amount of $17,500 was paid to the seller through an electronic transfer of $10,000 and $7,500 in cash on delivery. [ 27 ] Concerning the serial number, David Tomlin did not notice that the serial number had been sanded or scraped off , even though he acknowledges that it was not visible on the identification plate. However, there was a serial number on the front hitch, as the police officer noted.

He suggested that the number on the plate inside the trailer could have been removed by a solvent or by wear, and not by sanding. He did not notice anything until the police officers started their investigation. • Conclusion of the Sûreté du Québec investigation [ 28 ] The police investigation revealed that the trailer was stolen in Calgary on November 20, 2022.

It ended up in an auction in Ontario before being resold to David Tomlin. [ 29 ] Considering the GPS tracker and the uncontradicted conclusions of the Sûreté du Québec expert, the evidence reveals beyond a reasonable doubt that the property is the proceeds of crime. [ 30 ] Clearly, there were signs that the trailer’s serial number had been sanded, which would lead an informed purchaser to reasonably believe there was a problem.

At the time of the seizure, the possessor of the trailer (with the altered serial number on the identification plate inside the trailer) could not have been unaware of this fact, like any diligent purchaser. APPLICABLE LAW [ 31 ]

Section 490 of the Criminal Code reads as follows:

Section 490 ... 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. …

(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. Exception

(9.1) Notwithstanding subsection (9), a judge or justice referred to in paragraph (9)(

a) or (

b) may, if the periods of detention provided for or ordered under subsections (1) to (3) in respect of a thing seized have expired but proceedings have not been instituted in which the thing may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge or justice is satisfied (

a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4); and (

b) that it is in the interests of justice to do so. Application by lawful owner

(10) Application by lawful owner

(10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7), who claims to be the lawful owner or person lawfully entitled to possession of anything seized and

brought before or reported to a justice under

section 489.1 may, at any time, on three clear days notice to the Attorney General and the person from whom the thing was seized, apply summarily to (

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

b) a justice, in any other case, for an order that the thing detained be returned to the applicant. ANALYSIS [ 32 ] For the purposes of the analysis, the evidence establishes beyond a reasonable doubt that the lawful owner of the property is Mr. Gill. [ 33 ] The person who had possession of the property at the time of seizure was David Tomlin. [ 34 ] Here, the person from whom the property was seized had possession of the property. [ 35 ] The case law and legal commentary [2] state that a person who establishes possession of property at the time of the seizure is presumed to have lawful possession.

However, evidence that this possession is unlawful or criminal can be adduced before the Court. [ 36 ] Legal possession is assessed based on the rules of criminal law.

Possession of a thing will be considered criminal if: • First, the thing possessed by the person from whom it was seized cannot be legally possessed under any circumstances. • Second, the thing possessed (if it does not fall under the first category) is possessed with an illegal intent, knowledge, or purpose. [3] [ 37 ] The Law Reform Commission wrote the following on page 47-51 of a working paper with respect to conflicting claims regarding possession or ownership: In order to ensure that the criminal courts are precluded from adjudicating property disputes, the Commission considers that where there are conflicting claims to ownership or possession, the seized things should be ordered returned to the person from whom they were seized .

The rival claimants would naturally be free to launch civil proceedings to dispute ownership or possession of the things by the individual in whose favour a restoration order has been made. [4] [ 38 ] As an accessory power to its jurisdiction in penal matters, the Court must return the seized property to its owner or to the possessor. [ 39 ] The custodian of the seized property asks the Court to decide to whom the seized property is to be returned, while at the same time submitting evidence that possession of the seized property by the possessor David Tomlin was unlawful. [ 40 ] Whether or not charges have been laid against the impleaded party is not determinative with respect to the lawfulness of the seized property.

It is an element that must be weighed with all the others. In itself, the forensic technician’s report is proof of illegality. [ 41 ] According to the Supreme Court, [5] the possessor (David Tomlin) must establish, on a balance of probabilities, that he was in possession of the property at the time of the seizure. [ 42 ] The Court of Appeal for Ontario, [6] however, states that this possession must be lawful for the property to be returned to the possessor .

A person in possession of property at the time of seizure is presumed to have lawful possession, such that it is up to the prosecution (or the seizor) to prove this possession is illegal or criminal. [ 43 ] In the Court's view, this presumption of lawfulness of title is rebuttable. [ 44 ] Indeed, in R. v. Asselin , [7] the judge wrote the following on the proceeding brought: [ translation ]

Section 490 Cr. C . provides how and to whom seized property may be returned once the ends of criminal justice have been served. First, a person from whom anything has been seized may apply summarily for its return under section 490(7) Cr. C. Under section 490(9)(

c) Cr. C ., a judge seized of such an application shall, “if possession of it by the person from whom it was seized is lawful, order it to be returned to that person”. Second, the lawful owner can also apply summarily for an order of return under section 490(10) Cr. C . In that case, if the justice of the peace is satisfied that the applicant is the lawful owner of the property, he or she shall, under section 490(11) Cr.

C ., order that the thing be returned to the applicant. [ 45 ] Certainly, a decision rendered in penal matters cannot have the effect of determining the rights of persons disputing the ownership or possession of the property seized, since such a dispute is a matter for the civil courts. However, evidence that property is unlawfully possessed cannot be disregarded in the context of a criminal investigation. [ 46 ] In this case, it must be recalled that it was the seizure itself that dispossessed David Tomlin of the property.

Nothing prevents him from exercising the appropriate civil recourses to recover this possession or receive compensation from his seller, since the civil courts have full jurisdiction to decide based on the evidence adduced before them. [ 47 ] A court in criminal matters can render a decision based on the evidence heard under section 490(9) of the Cr. C. with respect to the return of the property. It is rather rare that evidence of unlawful possession of the property by the person from whom it was seized is

without repercussions, but that is not for this Court to decide. The evidence satisfies the Court and, therefore, taints the lawfulness of the possession. The evidence adduced by Officer Leclerc regarding the source and condition (altered serial number) of the property is criminal in nature.

Consequently, possession of the property by the person from whom it was seized cannot be lawful, based on the penal and criminal laws. [ 48 ] Officer Leclerc’s application under section 490(9) to return the property to its owner or lawful possessor is granted according to the following terms. [ 49 ] Considering the unlawfulness of the possession of the property by the person from whom it was seized (Tomlin), the property should be returned to its lawful owner (Gill). [ 50 ] Given the evidence of the unlawfulness of the possession, the property must be returned to the lawful owner (Gill). [ 51 ] Establishing possession is not, on its own, sufficient to prove its lawfulness according to the rules of criminal law.

Here, the presumption of lawfulness has been rebutted, hence this particular case where the property must be returned to the sole lawful owner, Mr. Gill.

FOR THESE REASONS, THE COURT: [ 52 ] GRANTS the application under section 490(9) of the Criminal Code ; [ 53 ] ORDERS the return of the property seized, as it is no longer required for the purposes of a police investigation or legal proceedings, to Gurjender Singh Gill; [ 54 ] ORDERS the custodian of the property seized to take all reasonable means to facilitate the return of the trailer to its owner; [ 55 ] GRANTS the owner 180 days to collect his property, given the great distance between his place of residence and the place the property is stored; [ 56 ] The whole without costs. __________________________________ MARIE-FRANCE BEAULIEU PRESIDING JUSTICE OF THE PEACE By: Officer Éric Leclerc, badge number 14040, custodian of the seized property Unrepresented David Tomlin and Gurjender Singh Gill Personally Dates of hearing: August 23, 2023