The Ontario Court of Appeal is expected to provide more clarity on the scope of the Crown’s forfeiture powers under the Civil Remedies Act in an upcoming case involving claims that a renter used a private residence for a marijuana grow operation.
The hearing on June 2 is one of a small number of civil remedies cases to reach the Court of Appeal since the Supreme Court of Canada upheld the act in 2009.
A Toronto-area fish wholesaler is appealing a Superior Court ruling that ordered the forfeiture of his Newmarket, Ont., property valued at $425,000 after a large-scale marijuana grow-op was found inside the residence.
York Regional Police obtained a search warrant in April 2006 after two days of surveillance. It was later determined that $14,000 in hydro had also been stolen. However, police never laid any charges and the Crown didn’t proceed with its forfeiture application until two years after execution of the search warrant.
Wing Kwong Lee is arguing that the provincial Crown is using its powers under the act as an “end run around the criminal standard of proof” to seize the property.
In his forfeiture decision last year, Superior Court Justice Hugh O’Connell found the residence was an “instrument of unlawful activity” under the act. He described Lee’s testimony that he rented the home to someone named “Steven” who paid in cash and couldn’t be located as “fiction.”
O’Connell concluded Lee was “directly involved” in the grow operation, although this finding wasn’t necessary to order forfeiture.
As well, Lee didn’t meet the onus of showing he was a “responsible owner” as an exception to the presumption of forfeiture, O’Connell ruled.
The judge improperly used his credibility assessment to make findings of criminal conduct, argues Lee’s lawyer, Tom Curry, in written arguments filed with the Court of Appeal. Lee co-operated with police, made efforts to locate the tenant, and subsequently rented the property, all of which was evidence he was a “responsible owner” under the act, Curry wrote.
The Crown is seeking forfeiture after it “chose not to face the burden of establishing Mr. Lee’s involvement in the grow operation beyond a reasonable doubt,” something that “offends notions of fairness,” said Curry, a partner at Lenczner Slaght Royce Smith Griffin LLP.
In response, the Crown states that a judge under the act isn’t required to consider criminal involvement. “The act is a non-conviction-based forfeiture regime,” wrote Crown attorneys Robin Basu and Leslie Zamojc. The inquiry for a court “relates to the unlawful use of the property, not who was responsible for the unlawful use,” they noted.
Only when it is “clearly not in the interests of justice” does the act allow for a court to decline to order forfeiture of property that was an instrument of unlawful activity.
Exceptions “should not apply” based on “a consideration of competing interests or notions of fairness,” the Crowns argue.
The “incredible assertion” by Lee about a tenant named “Steven” isn’t sufficient to meet his burden of showing he was a “responsible owner” under the act, they added.
In the written arguments, the Crowns stress several times that compensation for victims is one of the “paramount justice interests” of the act. Attorney General Chris Bentley proudly referred to the act as “the Robin Hood legislation” in a media report earlier this year.
Data made public by the Ministry of the Attorney General in February suggests that the largest beneficiaries of proceeds seized under the act are police in Ontario. Almost $14 million in assets have been forfeited since 2003. Of that total, $1.2 million went to victims of unlawful activity.
Local police services received $5.7 million in grants over this period for activities such as buying new surveillance equipment, interview room renovations, and upgrading canine units.
York Regional Police, which investigated Lee, received a $300,000 grant in 2007 for its palm and fingerprint identification system.