Supreme Court

SUPREME COURT OF Nova Scotia

Citation: R. v. Sandeson, 2022 NSSC 387

Date: 20221123

Docket: CRH No.  449840

Registry: Halifax

Between:

His Majesty the King

Respondent

v.

 

William Michael Sandeson

Applicant

 

Judge:	The Honourable Justice James L. Chipman
Heard:   Decision:	October 14, 2022   November 10, 2022
Counsel:	Carla Ball and Kimberley McOnie, for the Respondent William Michael Sandeson, on his own behalf

 

By the Court:

Introduction and Background

[1]             On July 6, 2022, Mr. Sandeson wrote the Court requesting “certain belongings that were seized by police officers returned to the custody of my family.” He cited s. 490(7) of the Criminal Code, RSC, 1985, c. C-46 which reads:

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.

[2]             The items requested by Mr. Sandeson may be summarized as follows:

1)      Canadian Currency, $66.00 from backpack;

2)      Wallet with various cards;

3)      Silver Dell computer;

4)      Wallet ID, black; and,

5)      Assorted items from Mr. Sandeson’s vehicle which were not seized by the police.

[3]             The matter was docketed for October 14, 2022, and the day before the Crown provided a letter outlining their response. The Crown’s submission included the following:

Items #1 & 2 - Cash and Wallet

With respect to items (1) and (2) (cash and wallet with cards), these items were seized from Mr. Sandeson upon his arrest. Both were marked and entered as exhibits at Mr. Sandeson’s last trial (exhibits 47 and 42 respectively). The Crown anticipates that they will be entered as exhibits once again in Mr. Sandeson’s upcoming trial. In any event, the case law is clear that the s. 490 provisions do not apply to property which has been exhibited at a judicial proceeding [R. v. Spindloe (2001), 154 C.C.C. (3d) 8 (Sask. C.A.)].

Item #3 – Dell Laptop

Mr. Sandeson’s laptop was seized pursuant to a search warrant for his residence, 1210 Henry Street. This laptop was never entered as an exhibit at the prior proceeding, nor were any of its contents referenced. Mr. Sandeson has requested his laptop be returned on a number of occasions in the past. The Crown has been reluctant to return the laptop until this court matter is ultimately concluded. Mr. Sandeson was previously provided with a copy of the hard-drive of the computer.

The Crown has not resiled from their position that the police should retain the computer until this matter is dispensed with. Mr. Sandeson is charged with an extremely serious offence. We have spent a considerable amount of Court time on numerous applications. On a number of occasions, Defence Counsel advised the Court that they would focus on different issues than prior Defence Counsel had. This is certainly fair; trials are dynamic in nature. However, as a corollary of that approach, the Crown may also have to change their focus.

The hard drive of Mr. Sandeson’s laptop contains a plethora of information, which includes text messages, internet searches, and information on websites that were accessed up to and including August 15, 2015. Two days before the alleged homicide there was a google search for “what is the maximum amount of money that can be deposited in an RBC ATM”, which in the Crown view, could be interpreted that Mr. Sandeson was expecting acquire a significant amount of cash. Some of the text messages and google searches also seem to relate to drug trafficking. The Crown offers these as examples of the sort of pertinent information that is on the laptop. This could be information that the Crown may want to lead or, if Mr. Sandeson elects to testify, that could be used in cross-examination.

The laptop has been in the possession of the police since 2015. Mr. Sandeson’s first degree murder trial is scheduled to begin in approximately 3 months. In the Crown submission it would be wholly inappropriate to return the laptop to Mr. Sandeson at this point in time.

Item #4 - Wallet

With respect to item (4), this was a wallet with id that was seized pursuant to a search warrant from Mr. Sandeson’s bedroom at 1210 Henry Street. It was not exhibited at the last trial. Your Lordship will recall that Mr. Sandeson lived in a two-bedroom apartment. Clearly any item seized from that bedroom that identifies the bedroom as being Mr. Sandeson’s has evidentiary value.

Item #5 - Items not Seized from Vehicle

Mr. Sandeson’s vehicle was seized and searched by police pursuant to a search warrant. The car was processed and photographed. A number of items were seized from that vehicle. Mr. Sandeson is looking for the return of the items that were not seized from the vehicle but are in police possession. The Crown is currently awaiting an inventory of what those items are. Cross-referencing photographs that were taken from the search of the car and the exhibit list the items that were actually seized, this appears to leave: paperwork in the glovebox, lightbulbs, “Cars” gift bag, what appears to be a gray t-shirt. The Crown is willing to assist facilitating the return of these items to Mr. Sandeson.

In conclusion, the Crown is willing to assist Mr. Sandeson in obtaining the items that were taken from his vehicle. As for the remaining items (those that have not already been marked as exhibits in prior proceedings), the Crown would submit that they should remain in police possession until this matter is concluded.

[4]             Following oral submissions, the Court arranged for Mr. Sandeson to receive a copy of R. v. Flynn, 2011 BCSC 1688. The next day the Court received a letter from Mr. Sandeson, where he stated:

It would appear that, contrary to the Crown’s position, I need not exclusively rely on s. 490(8) of the Code in order to effect the return of my property. Just as a Restraint Order under ss. 490.8(8) and 490.9(2) did not preclude the Justice in Flynn from ordering the return of property under s. 490(9)(c), nor does a valid order for its continued detention preclude an accused from seeking the return of property under s. 490(7). Justice Goepel paraphrases at paragraph 24 of Flynn:

…Under s. 490(9)(c) the item is to be returned to its lawful owner if a justice is satisfied that the periods of detention have expired unless proceedings have been instituted in which the thing detained may be required, or, where those periods have not expired the item seized is not required under sections 490(1)(4). [emphasis Mr. Sandeson]

It follows that whether or not the period of detention has expired, the application turns on whether or not the things seized “may be required” in future proceedings. It is my position that none of the items being sought may be required in a future proceeding.

The Crown was successful in introducing evidence obtained from my vehicle without presenting the vehicle itself in court. Likewise, evidence from the seized items can be tendered by way of photographs and documents should the Crown wish to do so – physical possession of the laptop, or any other items, is not a prerequisite to presenting evidence acquired therefrom to the Court. This capability undermines the Crown’s assertion that the ongoing detention of the property is “required” as per ss. 490(1) and (4).

[5]             In R. v. Strickland, 2022 NSSC 165, Justice Bodurtha considered the above case in the context of a jurisdictional question. On November 1, 2022, I provided Crown counsel and Mr. Sandeson with a copy of Strickland and the next day I had my judicial assistant send this email:

Dear Counsel and Mr. Sandeson:

Further to my email of yesterday afternoon, Justice Chipman is of the view that R. v. Strickland is not applicable in these circumstances.  In the result, your positions are not required.

[6]             In Strickland, Justice Bodurtha considered whether a Justice of the Supreme Court of Nova Scotia could hear an application brought pursuant to s. 490 of the Code. He concluded that in the circumstances before him that he could not:

12        Defence counsel purports to bring the application under s. 490(7). It is clear from ss. 490(7) and 490(9)(c) that the application must be brought to a "justice" unless a superior court judge ordered further detention of the items seized under s. 490(3). This application can only go before a Supreme Court judge if it was a Supreme Court judge who ordered the detention of the thing seized. This is not the case here. The last detention order was made by Provincial Court Judge Lenehan on April 20, 2021. Section 490 indicates that this application must be brought before a Provincial Court justice.

13        In R. v. Flynn, 2011 BCSC 1688, Mr. Flynn was charged with making and possessing counterfeit money. The police, in the course of the investigation, seized, pursuant to a warrant, Mr. Flynn's 2003 Range Rover. Mr. Flynn applied pursuant to ss. 490(7) and 490(9)(c) for an order returning the vehicle to him. The issue was whether a Supreme Court judge had jurisdiction to hear Mr. Flynn's application.

14        The Court held that the application should have been brought in the Provincial Court. Goepel J. stated, at para. 14:

... Pursuant to s. 490(7), an application under that section should only be made to a judge of a superior court where a judge of that court has ordered the detention of the thing seized under s. 490(3). In any other case, the application is to be made to a justice who is defined in the Code as a justice of the peace or a Provincial Court judge. In this case, a judge of a superior court has not ordered the detention of the thing seized and accordingly the application is one that should have been brought in Provincial Court.

15        In Flynn, counsel conceded in their written submissions that the application should have been brought in Provincial Court. However, they pointed the Court to s. 7 of the British Columbia Provincial Court Act, R.S.B.C. 1996, c. 379, which permits a judge of the Supreme Court to sit as a judge of the Provincial Court and, "when doing so, is a judge of that court." The Supreme Court judge, after concluding that the application should have been brought in Provincial Court, agreed to hear the matter as a Provincial Court judge at the request of both parties. The Court indicated that this was a unique set of circumstances and that it was "sympathetic to the parties' submissions that it would be a waste of time and resources to require the parties to start this matter again in Provincial Court." (see para. 18).

16        There is no corresponding statutory provision in Nova Scotia that permits a judge of the Supreme Court to sit as a judge of the Provincial Court.

17        I find that a judge of a superior court has not ordered the detention of the currency and accordingly the application is one that should have been brought in Provincial Court.

[7]             Whereas Justice Bodurtha was considering a situation where the last detention order was made in the Provincial Court (and that formed the basis of his decision), the within situation is distinguishable. In particular, Mr. Sandeson’s detention period referred to in s. 490(7) has not yet expired and this proceeding before the Supreme Court of Nova Scotia is still ongoing. Accordingly, I am of the view that I have jurisdiction to deal with the within application.

[8]             During his direct examination Mr. Sandeson said that he had cryptocurrency accessible through his laptop. He said that this was Bitcoin, which he purchased “six to eight months before my arrest.” He estimated the value to be $8,000 - $10,000 and said that it will have appreciated over the nearly seven and a half year period of time since his arrest. He recalled that he purchased $3,000 in Bitcoin on August 15, 2015. Mr. Sandeson testified that he needs physical possession of the laptop in order to access the funds, adding “if the laptop is inoperable, the money is lost forever.” Mr. Sandeson testified that he wants retrieval of his Bitcoin so that he can use the funds to assist in paying for his defence lawyer. Mr. Sandeson noted that he has been in prison for over seven years with no income. He added that it is “a large expense to fund a criminal defence.”

[9]             With respect to Mr. Sandeson’s statement that he had in the order of $3,000 in Bitcoin “on his computer”, his father, Michael Sandeson, emailed the Court on October 14, 2022, attaching a copy of a Bitcoin transaction in the amount of $3,000 in the name of William Sandeson created on August 15, 2015.

Analysis and Disposition

[10]         I have carefully considered the relevant Criminal Code provisions, authorities, oral and written submissions. With respect to item number five, I note that in their letter of nearly a month ago, the Crown stated that they were awaiting an inventory of a number of items that were not seized from Mr. Sandeson’s vehicle but remained in possession of the police. The Crown also advised that they were prepared to assist with returning these items to Mr. Sandeson. If it has not already occurred, I hereby order that these items be returned to Mr. Sandeson on or before November 25, 2022.

[11]         With regard to item number four, I accept the Crown’s argument that the wallet and ID may be an exhibit at the upcoming trial in order to attempt to establish that the bedroom where it was found was Mr. Sandeson’s. Although Mr. Sandeson argued that it should be obvious that the room was his, absent a formal admission, I accept the Crown’s position that the wallet and ID may be required to prove this point. I would add that Mr. Sandeson has not convinced me that by not having the wallet and ID that he will experience hardship.

[12]         Concerning items numbers one and two, the amount of money is modest. As for the cards, no evidence was provided to the effect that any of them might access savings or the like. The most Mr. Sandeson could say is that some of the cards were “loyalty cards” which may have some modest value. In any event, on all of the evidence I cannot imagine that the $66.00, wallet and various cards would alleviate any alleged hardship. In the result, I have no difficulty accepting the Crown’s position on these items. I note that both items were exhibited at the last trial and are expected to be marked as exhibits at the upcoming trial.

[13]         The remaining item number three is Mr. Sandeson’s Dell laptop. The record confirms that by letter dated September 21, 2018, the Crown provided Mr. Sandeson’s father with the external hard drive. I accept Mr. Sandeson’s evidence that the external hard drive did not provide access to the Bitcoin. I also accept that by obtaining the original Dell laptop that Mr. Sandeson may be able to access the cryptocurrency. At the same time, I am mindful of the Crown’s argument that less than two months before the start of Mr. Sandeson’s second trial that it would be inappropriate to return the computer. In this regard, I accept that the Crown may access the computer in the lead up to the trial and at trial to exhibit various items (some examples set forth in the Crown’s letter to the Court). Based on the Crown’s written and oral argument, they have satisfied me that the laptop should continue to be detained because it is required at the upcoming trial.

[14]         In reviewing this matter I conducted my own research and this led me to R. v. Barker, 2021 NSPC 59, which dealt with an application to examine detained property pursuant to s. 490(15). In her comprehensive reasons, Judge Buckle reviewed the law in the context of an application brought by the defence to examine five vehicles. Her review of the law, analysis and disposition may have application here; however, the application has not been made under s. 490(15). In the result, I will leave this potential application for another day. For present purposes, the Court must consider the application as brought by Mr. Sandeson.

[15]         In all of the circumstances I am not prepared to order that the Dell laptop be given over to Mr. Sandeson.

 

Chipman, J.