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| John L. Hill |
During the raid, the police discovered suspected cocaine, crack cocaine, methamphetamine, oxycodone pills, hydromorphone pills, fentanyl and paraphernalia consistent with drug trafficking. A loaded handgun and cash were also seized at the scene. Toronto residents Russell Bullock, 28, Natasha De Guzman, 21, and Michael Prahay, 31, were accused of offences involving drug possession for the purpose of trafficking and offences related to a firearm.
Bullock and Prahay were held in custody awaiting trial, but De Guzman absconded. When the matter came to court in 2024, she still had not been located. Police held the $186,269 seized in the raid.
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Their lawyer of choice was Toronto criminal lawyer Reid Rusonik. He was a highly experienced criminal defence counsel with over 30 years of experience and a stellar reputation. But he was unwilling to work at Legal Aid rates. Bullock was in a penitentiary until 2020 and was released to a halfway house where he remained until 2021. He could not come up with the cash to pay a lawyer. Prahay had also been discharged from a halfway house but could not find work in the 18 months following his release. Their respective families lived paycheque to paycheque.
Legal Aid’s hourly rate was $187/hour, allowing only 15 hours of preparation. A Garafoli application challenging the search warrant would require much more extensive preparation. Rusonik, the accused men’s counsel of choice, wanted $400/hour, a $4,000 counsel fee and $100/hour for his articling student’s assistance. The only way to come up with the cash to pay Rusonik was to gain access to the seized money.
The men learned that under s. 462.34(4) of the Criminal Code, they could apply to the court to release all or a portion of the cash seized during the raid. Justice Helen M. Pierce of the Ontario Superior Court at Thunder Bay heard the application on Aug. 21, 2024, and delivered a written decision on Sept. 5 (R. v. Bullock, 2024 ONSC 4928).
Justice Pierce adopted the procedures in R. v. Rafilovich, 2019 SCC 51. The tripartite test established there requires the judge to determine if the funds are needed to pay legal fees, the quantum to be returned to achieve that end, and a designation of the terms required to release funds to a lawyer’s trust account so they could no longer be seen as assets of the Crown.
Justice Pierce relied on jurisprudence initially developed in the decision of Justice Eugene Ewaschuk of the Ontario Court (General Division) in Re Regina and Morra, 77 C.C.C. (3d) 380. The accused had submitted that having established both an interest in the property and the fact that the pecuniary circumstances satisfy the statutory requirements set out in s.462.34(4)(c), the accused should be entitled to claim sufficient monies to cover their reasonable legal fees. In Attorney General (Canada) v. Markovic, [2000] O.J. 3528, Justice Brian Trafford of the Ontario Superior Court held that the accused are not required to establish the lawfulness of their possession of the seized funds but merely that there is a possessory interest in them; they are needed for legal expenses that cannot be met from another source.
The Crown did not challenge that Bullock and Prahay had an interest in the seized funds but claimed there was a possibility that De Guzman, if she were ever found, might claim an interest as well. Justice Pierce found this was hypothetical, and no interest had been claimed on the absconding party’s behalf. The Crown objected to these accused not applying for Legal Aid funding as a precondition for requesting access to the seized funds.
This objection was also dismissed. The accused had pointed to other cases where legal aid was rejected when cash was seized; The court was satisfied that Bullock and Prahay would not qualify for Legal Aid if they were to apply. Such an application is not a prerequisite in a s. 462.34(4) application.
The final issue was whether Rusinik’s fees were reasonable. The Court looked to older reviews (R. v. Murtaza, 2011 ONSC 7577; R. v. Paryniuk, [2001] O.J. 4410; R. v. Bedi, [2003] O.J. 5825) and found that in 2024 dollars, the funds sought by Rusonik were reasonable. The monies were ordered released to both applicants,
This case is important in establishing that a funding request that was sure to be denied by Legal Aid is not required when access to proceeds of crime is sought. Court time is more valuable than awaiting denials of the Legal Aid appeals. It also goes far to establish that clients should be entitled to their counsel of choice.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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