In Strike Avenue, the Ontario Court of Appeal considered the “interests of justice” exemption from forfeiture in circumstances where a property owner had rented a home to his son, who was involved in the drug trade.
The trial judge had found forfeiture to be “contrary to the interests of justice,” on the basis that the Province had waited six years to pursue its forfeiture application against the property. The Court of Appeal agreed that “the timeliness of a forfeiture application may be relevant to the analysis whether the Interests of Justice Exception to forfeiture is implicated,” but found that “an undue delay claim must be assessed in the context of the full record,” and “this was but one factor to be considered in the analysis whether the court should exercise its discretion under the Interests of Justice Exception.” On this basis, the Court found that delay alone was not sufficient to trigger the interests of justice defence in the context of the Strike Avenue case.
Nevertheless, the Court of Appeal pointed to other factors, which supported the end result of relief from forfeiture. The Court noted that “the connection between the Property and Fred’s illegal activities is neither consistent nor overwhelming.” Furthermore, “there was no evidence at the forfeiture hearing that (the property owner) Roger was complicit in, or profited from, his son’s unlawful activities.”
The Court of Appeal’s interpretation of the interests of justice defence therefore places a reduced emphasis upon the factor of delay, and a greater emphasis upon the culpability of the property owner, which in the Strike Avenue case was found to be very low:
“(C)ontrary to the AGO’s contention at the forfeiture hearing, the application judge accepted that the Property was acquired for a legitimate purpose, that Roger was the sole and exclusive beneficiary of it, and that Roger rented the Property to his son – deducting the rental payments from his son’s salary – for legitimate reasons connected with his son’s lawful employment by Parker Brothers. There was simply no evidence that Roger sought to facilitate, encourage or sanction Fred’s unlawful activities. To the contrary, the evidence established that Roger furnished the Property to Fred to provide him, as well as his grandchild and his son’s girlfriend, with a place to live.”
In these circumstances, the end result from the Court below was upheld, and the remedy of forfeiture was rejected as “a manifestly harsh and inequitable result.”
Decided by the Ontario Court of Appeal on May 16, 2014.
Click here for the full text of the decision.