A large amount of cash found on someone detained by police cannot on its own be sufficient evidence to forfeit the money to the province under its Civil Remedies Act powers, an Ontario Superior Court judge has ruled.
“Money is not deemed to be proceeds of unlawful activity merely because possessed outside of the confines of a bank,” wrote Justice Sean Dunphy in a ruling issued June 7.
“The concept of freedom includes the freedom to be eccentric, the freedom to carry cash instead of paying transaction fees to banks, the freedom to speak one’s native language to friends and the freedom to walk the streets while being young, male and black,” the judge added.
Dunphy ruled against the Ontario government’s attempt to seize $8,740 found on Jabril Abdirahman, a Somali-Canadian man who was detained by Toronto police, although not charged, and he has no criminal record.
The decision is the most recent example of cases in Ontario, and also in British Columbia, where judges have ruled against forfeiture applications by both provincial and federal Crowns.
“I think there is some concern within the judiciary that these powers are being expanded in ways in which they were not originally intended,” says Justin Safayeni, a lawyer at Stockwoods LLP in Toronto.
“There are more decisions that suggest courts are pushing back and scrutinizing these powers,” says Safayeni, who was appointed amicus curiae in a case last year where a Superior Court judge dismissed a forfeiture motion by the province on the basis that a sailboat was an “instrument of crime” in a case of impaired boating.
Another concern, Safayeni points out, is these applications often involve a well-resourced government unit on one side and a person who cannot afford to retain counsel on the other.
Dunphy, in his decision, ruled against the province even though Abdirahman was not a participant in the hearing.
“While the applicant Attorney General does not necessarily bear the burden of establishing precisely what unlawful activity the particular property was the proceeds of, the burden cannot be satisfied by the mere casting of suspicion or speculation that does not rise to the level of proof on the balance of probabilities,” he wrote.
When the civil remedies legislation was introduced by the Ontario government of Mike Harris in 2001, its publicly stated goal was to target proceeds generated by organized crime groups.
The Supreme Court of Canada upheld the constitutionality of the statute in 2009 in Chatterjee and also pointed to it as a tool against organized crime.
The application of these powers is often not in line with that goal, say defence lawyers who have acted for clients also facing forfeiture proceedings.
“It does not seem to matter what level of non-legal action is alleged,” says Jeff Hershberg, a Toronto defence lawyer. Contesting these applications is difficult, he says, even if there are no criminal charges and an individual faces the prospect of having to pay costs to the province.
The application of these powers in Ontario is conducted in a “Sheriff of Nottingham” style, similar to its use in many parts of the United States, says John Struthers, a Toronto defence lawyer and a former director of the Criminal Lawyers’ Association.
“It is an abuse of power, often as biased as carding and the drug war against minority groups,” he adds.
A search of civil court registries and court decision databases indicates that forfeiture hearings involving less than $15,000 in cash and no other assets is not unusual, nor is the use of experts by the province to argue that money seized is from drug-related activity.
The province generated $2.9 million in revenue in 2014-15 from its Civil Remedies Act powers, according to the public accounts. Of that total, $202,000 was paid in direct compensation to victims of crime. Grants of $760,000 were also issued. These grants have in the past primarily been awarded to police services.
The civil remedies unit within the Ministry of the Attorney General declined a request for an interview.
A spokesman for the ministry says that in the 2016/17 fiscal year, $1.5 million will be available for initiatives that assist victims or prevent unlawful activity.
The federal government, which has forfeiture powers under the Controlled Drugs and Substances Act, has also been on the losing end in some recent decisions in Ontario.
Justice Melvyn Green dismissed an application in Canada v. Jamal last fall to forfeit a Toronto home valued at $800,000 from a couple that purchased the dwelling in 1986. The application was based on the drugs and weapons convictions of their adult son, who also lived in the residence. The parents were not facing any criminal charges.
The Ontario Court of Appeal this spring upheld a costs award of nearly $1 million against the federal Crown in Fercan Developments, a lengthy forfeiture case involving both commercial and residential properties.
Simon William, a senior counsel within the Public Prosecution Service of Canada’s proceeds of crime and money laundering group, says its statutory forfeiture powers are not limited to organized crime groups.
“If a property is used to commit an offence, it is an offence-related property. The burden is then on the [respondent] to make their case. That is the regime that is in place,” says William. At the same time, he points out that any forfeiture of property, for example, must be found to be proportionate by a court.