Law Times

June 27, 2016

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Law Times • June 27, 2016 Page 3 Forfeiture ruling Judge slams application to seize cash from man BY SHANNON KARI For Law Times A large amount of cash found on someone de- tained by police cannot on its own be sufficient evidence to forfeit the money to the province under its Civil Rem- edies Act powers, an Ontario Su- perior Court judge has ruled. "Money is not deemed to be proceeds of unlawful activity merely because possessed out- side 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 ec- centric, the freedom to carry cash instead of paying transac- tion 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 Ab- dirahman, a Somali-Canadian man who was detained by Toron- to police, although not charged, and he has no criminal record. The decision is the most re- cent example of cases in Ontar- io, and also in British Columbia, where judges have ruled against forfeiture applications by both provincial and federal Crowns. "I think there is some con- cern within the judiciary that these powers are being ex- panded 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 pow- ers," says Safayeni, who was ap- pointed amicus curiae in a case last year where a Superior Court judge dismissed a forfeiture mo- tion by the province on the basis that a sailboat was an "instru- ment of crime" in a case of im- paired 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 legis- lation was introduced by the On- tario government of Mike Harris in 2001, its publicly stated goal was to target proceeds generated by organized crime groups. The Supreme Court of Can- ada upheld the constitutionality of the statute in 2009 in Chat- terjee and also pointed to it as a tool against organized crime. The application of these pow- ers 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. Con- testing these applications is dif- ficult, he says, even if there are no criminal charges and an indi- vidual faces the prospect of hav- ing to pay costs to the province. The application of these pow- ers 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 law- yer and a former director of the Criminal Lawyers' Association. "It is an abuse of power, of- ten as biased as carding and the drug war against minority groups," he adds. A search of civil court regis- tries and court decision databas- es indicates that forfeiture hear- ings 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 with- in 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 un- der the Controlled Drugs and Substances Act, has also been on the losing end in some recent de- cisions in Ontario. Justice Melvyn Green dis- missed an application in Canada v. Jamal last fall to forfeit a To- ronto home valued at $800,000 from a couple that purchased the dwelling in 1986. The appli- cation 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 De- velopments, a lengthy forfeiture case involving both commercial and residential properties. Simon William, a senior counsel within the Public Pros- ecution Service of Canada's pro- ceeds of crime and money laun- dering group, says its statutory forfeiture powers are not limited to organized crime groups. "If a property is used to com- mit 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 exam- ple, must be found to be propor- tionate by a court. LT NEWS It is an abuse of power, often as biased as carding and the drug war against minority groups. John Struthers Justin Safayeni says forfeiture cases under the Civil Remedies Act often involve a well- resourced government unit versus a person who cannot afford to retain counsel. 1 TitlePLUS policies issued with respect to properties in Québec and OwnerEXPRESS ® policies do not include legal services coverage. Amounts shown include processing fee and applicable taxes, breakdown available upon request; some restrictions may apply; please refer to the policy for full details, including actual terms and conditions. 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