Law Times

Law TiMes • May 30, 2011 NEWS What is a responsible owner? BY SHANNON KARI For Law Times the scope of the Crown's for- feiture powers under the Civil Remedies Act in an upcoming case involving claims that a rent- er used a private residence for a marijuana grow operation. Th e question of the steps a T property owner must take in or- der to be classifi ed as a "respon- sible owner" under the act is also squarely before the appeal court in Attorney General of Ontario v. 170 Glenville Road, King. Th e hearing on June 2 is one of a small number of civil rem- edies cases to reach the Court of Appeal since the Supreme Court of Canada upheld the act in 2009. A Toronto-area fi sh whole- saler 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 ob- tained a search warrant in April 2006 after two days of surveil- lance. It was later determined that $14,000 in hydro had also been stolen. However, po- lice 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 argu- ing 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 resi- dence was an "instrument of un- lawful 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 "fi ction." O'Connell concluded Lee was "directly involved" in the grow operation, although this fi nding wasn't necessary to order forfeiture. As well, Lee didn't meet the onus of showing he was a "re- sponsible owner" as an exception to the presumption of forfeiture, O'Connell ruled. Th e judge improperly used his credibility assessment to make fi ndings of criminal con- duct, argues Lee's lawyer, Tom Curry, in written arguments fi led with the Court of Appeal. Lee co-operated with police, made eff orts to locate the ten- ant, and subsequently rented the property, all of which was evidence he was a "responsible owner" under the act, Curry wrote. Th e Crown is seeking forfeiture after it "chose not to face the burden of establish- ing Mr. Lee's involvement in the grow operation beyond a reasonable doubt," something that "off ends notions of fair- ness," said Curry, a partner at he Ontario Court of Appeal is expected to provide more clarity on Lenczner Slaght Royce Smith Griffi n LLP. In response, the Crown states that a judge under the act isn't required to consider crim- inal involvement. "Th e act is a non-conviction-based forfeiture regime," wrote Crown attorneys Robin Basu and Leslie Zamojc. Th e inquiry for a court "relates to the unlawful use of the prop- erty, 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. Th e "incredible assertion" by Lee about a tenant named "Steven" isn't suffi cient 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 re- port earlier this year. Data made public by the Ministry of the Attorney General in February suggests that the largest benefi ciaries 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 vic- tims of unlawful activity. Local police services re- ceived $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 fi nger- print identifi cation system. Pomeroy & Gentles Associate Opportunities Fort St. John, BC Pomeroy & Gentles is a well established law practice in the City of Fort St. John, with origins back almost 50 years, and is currently looking to increase the size of the fi rm to better serve the Peace Region of British Columbia. 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