Ontario (Attorney General) v. 1140 Aubin Road, Windsor, 2008 CanLII 67887 (ON SC)

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 Tran had initially been charged with the activity in question, but the Crown had withdrawn the charges against her: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it is one thing to forfeit property in the absence of a charge; it is another to forfeit property when the Crown has withdrawn all charges against the owner.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 But where the Crown has deliberately withdrawn a criminal charge, this may impact on whether a civil application for forfeiture, based on the same criminal allegations, offends notions of fairness.”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.