Category Archives: Civil Forfeiture in Ontario

This case involved appeals (by the Attorney General and the Defendants) of the decision in Ontario (Attorney General) v. 1140 Aubin Road, Windsor, 2008 CanLII 67887 (ON SC), in which three home shad been ordered forfeit and a fourth had been preserved from forfeiture on the grounds of insufficient evidence that the owner was aware of the illegal activity occurring there.

The Ontario Court of Appeal upheld the findings of fact by the trial judge and reaffirmed the result in respect to the three forfeitures, as well as in respect to the one exemption from forfeiture.

The Darlington case demonstrates the reluctance of the appeals court to interfere with a lower court finding of fact, even in circumstances where a contrary interpretation of the facts is possible. For example, in upholding the relief from forfeiture of Tuoi Le Thi Tran’s home, Mr. Justice Doherty of the Ontario Court of Appeal stated that:

“The application judge found that Tran did not participate in, and had no knowledge of Do’s unlawful activity at the Atwater property before the police raid in August 2004. She also found that Tran was unaware that Do was paying the rent with drug money. In making these findings, the trial judge relied on Tran’s evidence. There was considerable evidence to the contrary, indicating that at a minimum Tran was aware of the drug activity.

It was for the application judge to assess the evidence. I cannot describe her findings as unreasonable on the totality of the evidence. Those findings stand and are entitled to significant weight in assessing Tran’s claim for relief from forfeiture.”

Decided by the Ontario Court of Appeal on May 5, 2011.
Click here for the full text of the decision.

In the Chatterjee case, the Supreme Court of Canada unanimously upheld provincial civil forfeiture laws, finding them consistent with the balance of powers described in Sections 91 and 92 of the Constitution Act, 1867.

The Defendant, Robin Chatterjee, had been found in possession of various pieces of equipment known to be useful in marijuana grow operations, as well as $29,020 in cash, all of which was seized by the provincial government. No drugs were found during the search of Mr. Chatterjee’s vehicle, and police declined to lay charges for lack of evidence.

The Province of Ontario, however, commenced forfeiture proceedings arguing that the money in Mr. Chatterjee’s possession was, more likely than not, proceeds of crime. The Ontario Superior Court of Justice (and subsequently the Ontario Court of Appeal) agreed with this submission and ordered that the money be forfeit to the Crown.

On appeal to the Supreme Court of Canada, Mr. Chatterjee’s challenged the constitutional validity of Ontario’s Civil Remedies Act, arguing that the province was essentially performing a criminal law function, and thereby encroaching on the federal jurisdiction in this area. Justice Binnie, writing for a unanimous court, rejected this argument, holding that civil forfeiture is a legitimate function of the provinces:

The CRA is an enactment “in relation to” property and civil rights, and as such its provisions may incidentally “affect” criminal law and procedure without doing violence to the division of powers. The fact the CRA aims to deter federal offences as well as provincial offences and indeed offences committed outside Canada, is not fatal to its validity. On the contrary, the very generality of the CRA shows that the province is concerned about the effects of crime as a generic source of social ill and provincial expense, and not with supplementing federal criminal law as part of the sentencing process. While it is true that forfeiture may have de facto punitive effects in some cases, the CRA does not require an allegation or proof that any particular person committed any particular crime. Property may be forfeited under the CRA if, on a balance of probabilities, it is demonstrated that the property constituted the proceeds of crime in general without further specificity.

Contrary to popular opinion, the Chartterjee case does not uphold the constitutional validity of all civil forfeiture proceedings in all circumstances. The court acknowledges that the Civil Remedies Act “may have de facto punitive effects in some cases,” but is silent on whether and how the Charter might apply in which cases.

For example, it is clear from Alberta (Minister of Justice and Attorney General v. Squire, 2012 ABQB 194 that a breach of Charter rights on arrest can be used to defeat a civil forfeiture claim. In the case of a punitive civil forfeiture claim, the right to the presumption of innocence and to be spared double jeopardy might (or at least should) also come into play.

Decided by the Supreme Court of Canada on April 17, 2009.
Click here for the full text of the decision.

This case involved an in rem claim against four residences owned by three individuals, allegedly involved in marijuana grow operations. Two residences were owned by Elwin James McDougall who had pled guilty to possession and cultivation of marijuana. The final two residences were owned by Van-Xinh Do and Tuoi Le Thi Tran, respectively.

The Ontario Superior Court of Justice used the reasons for judgement in this case as an opportunity to summarize the law surrounding Ontario’s Civil Remedies Act, namely that the province merely has to demonstrate that a property is an “instrument or crime” or “proceeds of crime” on the balance of probabilities, and that a criminal conviction is not necessary to justify forfeiture.

In the case of the two properties owned by Elwin James McDougall, the court found that he was clearly involved in and profiting from the marijuana grow operations in question, and therefore ordered his two homes forfeit. Van-Xinh Do was likewise found to be a knowing participant in illegal activity and his home was ordered forfeit. The final Defendant, Tuoi Le Thi Tran, was found to be uninvolved in the activity in question, and the court determined that she was merely rending her home to Mr. Do. The court also found relevance in the fact that Ms. Tran had initially been charged with the activity in question, but the Crown had withdrawn the charges against her:

“Of primary concern is the fact that the Attorney General is unable to tie the owner of the property, Tran, to any unlawful activity, either by participation or knowledge. While Tran was initially charged in connection with the illegal enterprise, the Crown elected to withdraw all charges against her. Do pleaded guilty and, in the process of doing so, expressly exculpated Tran.

The Civil Remedies Act does not require a criminal conviction to justify a forfeiture order. However, it is one thing to forfeit property in the absence of a charge; it is another to forfeit property when the Crown has withdrawn all charges against the owner. Clearly, a withdrawal is not, standing alone, evidence of innocence. Nor does it prevent the Crown from re-instituting proceedings. But where the Crown has deliberately withdrawn a criminal charge, this may impact on whether a civil application for forfeiture, based on the same criminal allegations, offends notions of fairness.”

Given this state of affairs, the court declined to order forfeiture of the home owned by Ms. Tran, 10824 Atwater Crescent, ruling that such an order was “clearly not in the interests of justice.”

Decided by the Ontario Superior Court of Justice on December 8, 2008.
Click here for the full text of the decision.

This case involved a couple, John Stephen Nock and Connie Marie Nock, who owned a house in Woodstock, Ontario. Mr. Nock was found to be cultivating marijuana on the property, in a grow operation worth approximately $40,000 at the time he was caught.

Mr. Nock claimed that he was cultivating the marijuana for personal use, that he had no intent to traffic, and that he had no idea when he planted the seeds that so much marijuana would grow. There was no evidence that Mr. Nock actually engaged in trafficking or sale of the marijuana. He pled guilty to this, his first offence, and received a conditional sentence of seven months.

Upon analysis of the evidence on the balance of probabilities, the Ontario Superior Court of Justice found that the home was an instrument of crime, but the Nocks’ equity in the home was not proceeds of crime. Madam Justice Rady further accepted Mrs. Nock’s testimony that she was unaware of the marijuana activity, and would have attempted to stop it had she known.

Despite the home’s status as an instrument of crime, Madam Justice Rady declined to order forfeiture of the home, stating that doing so was “clearly not in the interests of justice,” due to the disproportionate effect it would have on Mr. Nock’s wife and young daughter.

Decided by the Ontario Superior Court of Justice on February 7, 2008.
Click here for the full text of the decision.