R. v. Lynds, 2011 NSSC 400

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Lynds, 2011 NSSC 400 Date: 20111025 Docket: SK 353388 Registry: Kentville Between: Her Majesty the Queen v. Curtis Blair Lynds Judge: The Honourable Justice Felix A. Cacchione Heard: October 25, 2011, in Halifax, Nova Scotia Written Decision: October 31, 2011 Counsel: Jill Hartlen, for the Federal Crown Peter Craig, for the Provincial Crown Kevin A.

Burke, Q.C. and Luke Craggs, for the Applicant By the Court : (Orally) [ 1 ] The Applicant, Curtis Blair Lynds brings this application pursuant to s.462.34(4)(c)(ii) for an order releasing certain assets both real and personal property which were seized and are presently restrained by orders of the Honourable Justice Robert W. Wright of

this Court. Those orders were dated September 21st, 2007 and November 28th, 2007. [2] The Applicant argues that the release of the assets is required in order that he may meet his reasonable legal expenses indefending two counts of first degree murder which he is presently facing.

The five orders in issue relate to four pieces of real propertywhich are currently restrained and assets such as motor vehicles, home furnishings, jewellery and currency which are under the controland management of the Seized Property Management Directorate (SPMD). [3] In September of 2007 the RCMP executed a number of search warrants issued pursuant to s.487 of the Criminal Code. Thewarrants were obtained as a result of a Controlled Drugs and Substances Act investigation against the Applicant and a number of hisassociates and family members.

The Applicant was charged with offences under the Controlled Drugs and Substances Act. He pledguilty to some of these offences and was sentenced to a term of four years incarceration. [4] Subsequently on November 12th, 2008 the Applicant was charged with offences relating to the possession of proceeds ofcrime. These charges are still pending before the Court.

Prior to and during the period when the police were investigating the Applicantin relation to the Controlled Drugs and Substances Act and the proceeds of crime offences, they were also investigating him with respectto two murders which allegedly were committed in either 1999 or the year 2000. [5] On December 11th, 2010 Mr. Lynds was charged with two counts of first degree murder. He was also charged with being anaccessory after the fact to murder. He was, at the time, on parole for the Controlled Drugs and Substances Act offences for which he hadbeen sentenced. He was arrested.

His parole was revoked and he was returned into custody. The Applicant was remanded on all ofthose charges. He is currently in custody and has not applied for his release on these charges. [6] Mr. Craig, for the Provincial Crown Attorney’s Office, who has carriage of the murder prosecutions and also the accessoryafter the fact to murder charges, acknowledges in his brief that from any objective viewpoint these charges are serious, they are complexand they involve important issues. The offences as noted are historic.

There is wiretap evidence, accomplice evidence, extensiveforensic and expert evidence together with voluminous amount of disclosure. All of this speaks to the length and the complexity of themurder prosecutions. [7] The Applicant, in his affidavit, refers to the disclosure materials containing, among other things approximately 42,000intercepted telephone communications as well as multiple video taped statements given by persons charged with these and other relatedoffences. [8] The application, as I noted, is governed by s.462.34. I will not bother reading that for the record.

However, unders.462.32(4)(c)(ii) a judge can order that the property or part of it be returned to the Applicant, or in the case of a restraint order, revoke,vary or make the restraint order subject to reasonable conditions for the purpose of meeting reasonable business expenses and legalexpenses of the person who was in possession of the property at the time the warrant was executed or at the time the restraint order wasissued. [9] In order to succeed in this application Mr.

Lynds has to establish on a balance of probabilities: (1) that he requires counsel todefend these charges; (2) that he owns no assets and has no other means to obtain legal representation; and (3) that no other person is thelawful owner or lawfully entitled to possession of the property. [10] An initial issue to be determined is whether the Applicant can bring this application to obtain funds to engage counsel for thedefence of offences which do not fall under

Part XII.2 of the Criminal Code. That really is a moot point. Counsel have agreed on thebasis of Halpert v. Canada (Attorney General of), (BC S.C.) decision that the funds can be used to defend chargesnot falling under

Part XII. As well, s462.3(1) in

Part XII.2 of the Code defines designated offence as “any offence that may beprosecuted as an indictable offence under the Criminal Code or any other act of Parliament other than an indictable offence prescribed byregulation”. The murder charges and accessory to murder charges are not prescribed by regulation. They are offences under

an act ofParliament, to wit the Criminal Code and therefore Mr. Lynds, in my view, is able to bring this application.

[11] Filed as part of this application was the affidavit of Anne Malick, Q.C., the Service Delivery Director of Nova Scotia Legal Aidwhich indicates that when Mr. Lynds applied for legal aid in January of 2011 he qualified on the basis of having no income and noassets. In May of 2011 Ms. Malick was advised by the Applicant’s counsel of the existence of substantial assets, both real and personalin the Applicant’s name and that certain of these assets were restrained pursuant to s.462 of the Code while others were being heldpursuant to various search warrants. As a result of this information a review of Mr.

Lynds financial eligibility for Legal Aidrepresentation was undertaken and he was deemed, based on the existence of assets and possibility of accessing assets pursuant to anapplication such as the one before me, that he did not qualify for Legal Aid. [12] The case law is divided about whether Legal Aid is “other means” as stated in s.462.34(4)(c)(ii): R. v. Chen, [1995] O.J. 4846(Ont. Gen. Div.); Terezakis v. Canada (Department of Justice), 2000 BCSC 80 , [2000] B.C.J. No. 68 (B.C.S.C.); R. v. Love,[1990] A.J. No. 1290 (Alta.Q.B.); R. v. Li (1997), (BC SC), 115 C.C.C. (3d) 336 (B.C.S.C.).

Even if this Court wereto conclude that Legal Aid is other means, the Applicant does not qualify for Legal Aid because of the existence of the restrained assets. I am satisfied that he is not in a position to qualify for Legal Aid. [13] I am satisfied that Mr.

Lynds has discharged the burden on him to show on a balance of probabilities that he requires counsel todefend the murder and accessory after the fact to murder charges, that he owns no other assets and has no other means to obtain legalassistance. [14] I am not satisfied, however, with respect to the property identified as PID 20244885, that is the Willow Street property, Ms.Cummer’s property, that no other person is lawfully entitled to possession of this property. Accordingly that property, that is the onewhich is at 726 Willow Street, Truro, Nova Scotia will not form part of the order which I will issue. Ms.

Cummer would appear fromthe evidence of Corporal Dunlevy to have an interest in this property.

Accordingly, that property will not form part of the order whichwill be issued. [15] The orders of Justice Wright made on September 21st, 2007 and November 28th, 2007 pursuant to s.462.33(3) of the CriminalCode for properties identified as PID20300521, known as #11 Highway 311, Colchester County; PID 200074142 at 677 OldTatamagouche Road; PID 200099586, known as the Old Tatamagouche Road, Colchester County; as well as the personal property contained in the Applicant’s affidavit at Exhibit 11 and listed as Exhibit A appended to the order of Justice Wright dated the 28th ofNovember 2007 are varied, with the exception of the cash currency seized from the Applicant and from his residence, to allow for thesale of the items to enable funds to become available for the payment of reasonable legal fees of Curtis Blair Lynds on the followingterms: [16] All persons are prohibited from disposing of or otherwise dealing in any manner with any interest in the properties except asprovided for in this order.

The Minister of Public Works and Government Services as represented by the SPMD, is hereby appointed tomanage the listings and the sale of the properties in accordance with the terms of this order or any subsequent order of this Court. Nomortgage, charge, encumbrance, conveyance of any interest or any agreement to mortgage, charge, encumber or convey any interest maybe entered into or registered against the property after the date of this order except as may be permitted by further order of this Court.

Any such mortgage, charge, encumbrance, or conveyance of any interest or any agreement to mortgage, charge, encumber or convey anyinterest in relation to the property in violation of this order shall be deemed void. [17] The SPMD may sell the property without further order of this Court, but subject to the following conditions: (

A) It shall forthwith obtain an appraisal in relation to the property to determine the fair market value of same; (

B) It will list the properties for sale with a real estate broker of its choice; (

C) Any listing agreement signed by the SPMD, pursuant to this order, shall include the following terms: (

i) That the listing agreement not extend beyond 90 days of the day on which it was signed;

(ii) The list price of the property shall be at the fair market value determined by the appraisal, unless otherwise ordered by ths Court; (iii) The commission payable to the real estate broker shall be 5% of the selling price of the property, unless otherwise authorized and directed by this Court; (iv) If no agreement of purchase and sale has been entered into with respect to the properties on the expiry of the listing agreement, then SPMD may re-list with the same broker, or with another broker, on the approval of this Court. (

D) The SPMD, or its designate, may enter and inspect the property as often as reasonably required with a real estate broker for the purpose of viewing and inspecting the property. SPMD shall provide written notice of each entry it makes, twenty-four hours in advance, to the owners and to any occupants of the property. Written notice may be effected by leaving it with an adult person at the building located on the property or by posting a copy of the notice to the front door of the building on the property. Notice as well shall be given to the Applicant's counsel, Mr. Burke. (

E) The real estate broker, chosen by the SPMD in accordance with the above paragraph, or any of the agent's brokers may attend and enter the building with or without other agents or potential purchasers in the course of carrying out their duties to sell the property. The real estate broker may authorize any real estate agent, acting for a potential purchaser, to enter the property for the purpose of showing or inspecting property for the potential buyer. The real estate broker shall give such notice to the occupants of the property as is reasonable in the circumstances. (

F) Any offer to purchase the property shall be submitted to the SPMD by the proposed purchaser. Upon receipt of the offer the SPMD, a copy of that will be faxed to the Applicant and his counsel. (

G) Upon receipt of an offer to purchase the property, SPMD may accept it if the owner provides to SPMD his written consent to accept the offer to purchase, or the Court otherwise authorizes and directs SPMD to accept the offer to purchase. (

H) If the SPMD does not receive a written consent from the owner, as referred to in the above paragraphs, within 72 hours of the offer having been communicated to him and his counsel, then the SPMD and/or the Attorney General of Canada shall bring an application to this Court for directions. Any such application shall be on notice to the owner and such notice to be given in such manner as is appropriate in the circumstances and as approved of or directed by this Court. (

I) No offer to purchase may be accepted without the prior written consent of the SPMD. (

J) Upon acceptance of an offer to purchase SPMD in accordance with the above paragraphs SPMD is authorized to direct and retain legal counsel to complete the sale of the property. (

K) The owner, Curtis Blair Lynds, is directed to execute any and all documents that are required to complete the sale of the property including but not limited to listing agreements, offers of purchase and sale, and deeds of conveyance. Copies of all these documents and all closing documents shall be provided to the owner within 24 hours of closing. (

L) Upon completion of the sale of the property, the proceeds of the sale shall be paid to the offices of Kevin Burke, Q.C. in trust and be held in his possession and control. From the proceeds of the sale the following will be paid: (

i) All reasonable legal fees and disbursements associated with the sale of the property. (ii) the real estate commission;

(iii) costs, fees, disbursements and expenses including the costs of appraisal on the property incurred by the SPMD in relation to the management, listing, marketing and sale of the property as may be approved by the Court; (iii) any other charges, liens or encumbrances registered against or affecting title to the property which were registered or affected title prior to the restraint order being made; (

M) Upon completion of the sale and in accordance with this order and the registration of the transfer with the consent of Her Majesty as evidenced by an affidavit of counsel for the Attorney General of Canada, this order and restraint order shall cease to bind the property and the Land Registrar is authorized and directed to delete this order and restraint order from the title to the property. (

N) The SPMD may apply from time to time to this Court for directions and guidance in the discharge of its duties pursuant to this order and with respect to any issue arising from the listing, marketing and sale of the property. The owner and any other party with an interest in the property may also apply for directions or guidance with respect to any matter relating to the listing, marketing or sale of the property.

Notice shall be given of any such application to all parties referred to in this paragraph and to the Attorney General of Canada, such notice to be given as reasonable in the circumstances, and as directed or approved by the Court. [ 18 ] That is it with respect to properties. Now there is subsection 5 of 462.34, dealing with an in-camera hearing with respect to legal fees and I would like to hear your position on that. MR. BURKE : Just on the form of the order that Your Lordship has outlined, just a couple of questions I ’ d raise.

You indicate in your order that the decision to sell is one of Seized Property Management. COURT : Yes. MR. BURKE : And that ’ s a discretionary matter on their part. COURT : Yes. MR. BURKE : In that they may or may not, in the event that they receive an offer and reject the offer, are they then required to explain the rejection, or is it a simple matter of whatever reasoning they have in rejecting the offer, is theirs and theirs alone?

COURT : The Seized Property Management Directorate has to obtain an appraisal for the property from a real estate agent/real estate broker and determine from that appraisal a fair market value of the property. And the sale price of the property, or certainly the listing price should be, at a minimum, the fair market value if not more for negotiating purposes. Any offer and response to the offer from the Seized Property Management Directorate has to be communicated to the Applicant and his counsel.

As to the refusal to sell a property on which an offer is presented, I would suggest that if there is a dispute between the Applicant and Seized Property Management Directorate about a refusal, that directions of the Court be obtained. MR. BURKE : Very well My Lord. I ’ m just trying to envisage now, given that it ’ s October, the properties go on the market say within the next 30 days... COURT : Yes. MR. BURKE : It ’ s obviously not a good time to move a lot of properties and whether or not the Seized Property Management

MR. BURKE : It ’ s obviously not a good time to move a lot of properties and whether or not the Seized Property Management indicate that it ’ s better if we leave it until next spring or ... COURT : No I think that... If I wasn ’ t clear, the order is that those properties have to go up for sale within the next 30 or 60 days. There has to be an appraisal done initially and then a listing of those properties, but I don ’ t envisage that because this may be a down time in terms of real estate sale, we ’ re not going to list it. MR. BURKE : Okay. COURT : It has to be listed ASAP. MR.

BURKE : And it has to be sold at the best price available? COURT : Fair market value. MR. BURKE : The next question I have and maybe your Lordship covered it, was all of the correspondence and communication, say between Seized Property Management and the real estate agents and the listing agents, copies of which will be forwarded to the Applicant and counsel. COURT : Yes. Both Applicant and counsel. And I think it is important that counsel receive it because.. Given, I am not sure where Mr. Lynds is at the present time.

I understand he is in Burnside, but I am not sure if he is going to stay Burnside or be transferred to an institution. MR. BURKE : He ’ ll be transferred to an institution. COURT : And that begs the next question which is - he could be transferred to Stony Plain, he could be transferred to Kingston, so that there needs to be some mechanism, and that ’ s the involvement of counsel. That ’ s why notice to counsel is required, so that if SPMD gets an offer, it can be faxed to you. You should be in a position to know where he is and communicate with him with respect to that offer and get directions. MR.

BURKE : Thank you My Lord. With respect to the personal property, is there a time limit for Seized Property to organize the sale on the personal property? Within 30 days, 45 days? Does Your Lordship see any need to do that? COURT : Counsel for the Crown, any comments on that? I ’ m not sure of the mechanics of... I don ’ t know what they have to do to organize the sale of the personal property. MS. HARTLEN : I suspect from my communications that they would wait for sort of the next reputable auction that they could catch onto. I can ’ t envision that taking a long time. I...

COURT : Well, I ’ m not going to wait for somebody to decide whether an auction is appropriate or not. MR. HARTLEN : I think if we put the word “ forthwith ” , I think that would convey, you know an immediacy about the issue. But if we put a time limit that might be dangerous if they can ’ t comply with every single item within that time limit. COURT : I can understand the difficulty with the real property. I don ’ t see a difficulty, other than moving the personal property from

whatever storage depot they have to another off site place for the auction. So I would suggest that the wording of the order for the real estate be “ forthwith ” and for the personal property be “ within 45 days ” . MS. HARTLEN : Thank you My Lord. MR. BURKE : Thank you My Lord. MR. CRAIG : Could I have a second My Lord, if you don ’ t mind. MR. BURKE : My Lord, just a couple of points then. My Learned Friend has brought up a point. Insofar as the legal costs for the 462.34 application, I ’ ve had discussions with my Learned Friend, Ms.

Hartlen, and she has agreed to have the costs of...preparing for this application be paid from the proceeds and maybe Ms. Hartlen can confirm that. MS. HARTLEN : Yes that ’ s an agreement that we have reached. I mean obviously it ’ s subject to Your Honour ’ s order, but... COURT : I have no difficulties with that. It should be included as a paragraph in the order. MR. BURKE : Yes. MS. HARTLEN : Yes. MR. BURKE : And the... I guess the other point that My Learned Friend brought up has to do with the retroactivity of the fees.

I know we have to have an ex parte hearing, which is the next stage of this process, but in terms of moving the case forward, would it be possible to have the order worded in such a way that counsel ’ s fees would be not contingent on the funds being at hand. That they would be...retroactivity. In other words, our bills would be paid before the funds would come in... COURT : Paid from what? MR. BURKE : Well, that ’ s a good question.

On the assumption that these things are going to be sold, I ’ m thinking more now in terms of personal property at whatever scheduling we need to do in terms of the preliminary inquiry for the .. I think we can do that in any event My Lord, because scheduled preliminaries and..by the time the preliminaries come up, we will have, hopefully, have all of this taken care of. COURT : Mr. Craig. MR. CRAIG : Yeah, I ’ ll just explain the contingency I was hoping to avoid.

I think maybe the time frames you have alluded to in the order will make this effectively moot, but I guess we now know...and have a position, that Mr. Burke ’ s expenses, moving forward, will be paid out of whatever pool is ultimately generated from the sale of these two sets of property. COURT : Yes. MR. CRAIG : And I think perhaps now, that should enable us to at least

schedule the pending criminal matters immediately. I wouldn ’ t see, unless ...I ’ m missing... I don ’ t see an impediment.

COURT : Quite frankly I don ’ t want to go there because it ’ s not my bailiwick. When you

schedule the PI for is really a matter between counsel and the Provincial Court as to its availability. I ’ m hoping that by the use of “ forthwith ” and “ 30 or 45 days ” that that ’ s going to move things along more expeditiously than simply an order that the assets be sold. Because yes one can say this is a down time for the sale of real property in the province. On the other hand, one can say with the arrival of a 25 billion dollar contract, this may be the time to put the things on the market because there will be buyers for it.

You, so it really is, is a matter that I don ’ t want to get involved in, the scheduling of these matters. All right, but with respect to the ex parte hearing. MR. BURKE : Would December 1 st My Lord? COURT : If you just give me... December 1 st , yes. That ’ s... just let me check. I think I ’ m on leave, but... I ’ ll check my court calendar. We will just be a few minutes. COURT : Is December 1 st , convenient to Crown? I know the Crown ’ s not entitled to be there, but the Crown is entitled to make representations either before or after. MS. HARTLEN : I ’ m pretty sure it is Your Honour... My Lord.

Sorry I should have checked, but I was anticipating an invite. Yes it is free for me. MR. CRAIG : That ’ s My Lord. I think that ’ s going to be fine. I wouldn ’ t expect filing anything lengthy in any event and I think this is contingent on Mr. Burke and I making arrangements with another appearance we have in Windsor, but I think that ’ s doable. MR. BURKE : December 1 st , 9:30 My Lord? COURT : Both Crowns are entitled to make representations either before or after the ex parte hearing.

Given the time that we have set for the hearing, perhaps it will be after the ex parte hearing, but if we could do it on the same day, it would be... I don ’ t expect that that would be a lengthy hearing Mr. Burke. Any ideas, just in terms of scheduling.

Schedule it for 11:00 for the Crown ’ s response? MR. BURKE : I would think My Lord. That should be sufficient time. COURT : All right. And 11:00 a.m. December 1 st the Crown ’ s response. Anything further counsel? MS. HARTLEN : Yes, My Lord. Just wondering, who is going to draft the order? COURT : Mr. Burke ’ s application. MR. HARTLEN : Okay. Perfect. COURT : All right, and it will be forwarded to both Crowns for their perusal before it is submitted to the Court. MR. BURKE : Just wondering when I can get Your Lordship ’ s decision so I will be able to draft the order.

COURT : If I was able to type, you could have it soon. But I can ’ t type. [ 19 ] In

summary then as to the points raised in this discussion; (

A) SPMD will obtain an appraisal for the real property from a real estate agent or broker and determine from that the fair market value of the real property. The listing price should at a minimum be the fair market value of the real property. All offers received must be communicated to the Applicant and his counsel. Directions from this Court may be obtained if there is a dispute between the Applicant and SPMD with respect to a refusal to accept an offer. (

B) the real property shall be listed for sale forthwith once an appraisal has been completed. In any event the real property must be listed at the latest 30 days from the date of this order. (

C) the real property is to be sold at a price closest to the appraised fair market value of that property. (

D) Both the Applicant and his counsel are to receive copies of all correspondence between SPMD and any realtor involved in the appraisal, listing and sale of the property. (

E) the personal property under the control of SPMD shall be sold within 45 days of the date of this order. (

F) the legal costs for the preparation and presentation of this application shall be paid to the Applicant ’ s counsel from the proceeds of sale of the real and or personal property. (

G) An ex parte hearing pursuant to s.462.34(5) will be held on December 1 st , 2011 at 9:30 a.m. The Respondent ’ s reply will be heard at 11:00 a.m. on December 1 st , 2011 (

H) Counsel for the Applicant will prepare the order and circulate it to both counsel for the federal and provincial Crowns. __________________________ Cacchione, J.