Law Times

Law timeS • September 24, 2012 NEWS Proceeds of crime laws Barrie case could have big implications for property owners BY MARG. BRUINEMAN For Law Times BARRIE, Ont. — A case that has been wending its way through the criminal courts for the past eight years is back in session as prosecutors try to use federal forfeiture legislation to seize an infamous piece of property that served as a marijuana grow operation. The circumstances of the case could send a chill to property owners, says a defence lawyer involved in the matter. The situation goes back to 2004 when police stormed into the former Molson brewery in Barrie and discov- ered beer vats sprouting illicit marijuana plants. There were thousands of them estimated to be worth about $30 million. It was the country' na growing operation ever uncovered, police declared. Grow records found inside the building indicate it had been operating for close to two years with potential an- nual profits exceeding $8 million. Close to a dozen people were arrested and headlines structures have since been levelled, and a large sign overlooking Highway 400 prominently announces its sale. The land is zoned EM2, an industrial des- ignation accommodating offices and enclosed warehousing. A parcel at the back of the property is zoned for EM4, which allows for outside warehousing. Next month, the forfeiture hearing to seize the property will begin. It's expected The property itself lies dormant, the "They say . . . that Vince DeRosa is his brother's keeper — a tenuous sug- gestion. If they're correct here, this will send a chill through the property com- munity. It really does put property own- ers at serious risk." Greenspan also takes issue with an s largest indoor marijua- to take the better part of the next month with an additional three days scheduled in December. Fercan Developments Inc. is the subject of the hearing. Its principal owner is Vince DeRosa. The forfeiture provisions of the approach at the hearing that he sees as a reverse onus and is making a series of constitutional challenges prior to the start of it. When police launched the 2010 across the country announced the discovery of the mas- sive strange brew, but police said those arrested were simply the gardeners working in shiſts and staying in a dormitory-like facility inside the building. All of those ac- cused pleaded guilty to a variety of charges the next year. It wasn't until 2010 that investigators made a series of arrests of people they called the masterminds behind a criminal organization in a series of co-ordinated raids in Ontario and Quebec. "Project Birmingham was the investigation launched to bring the controlling minds of that criminal organi- zation to justice, Insp. Andy Karski. "The offence-related property legislation assists law enforcement and the judicial system for meaningful court resolution." For the most part, those accused also pleaded guilty the following year, although some charges remain outstanding. " says Ontario Provincial Police Det. Controlled Drugs and Substances Act have been tested and refined in a series of Supreme Court challenges. Under the act, judges have the discretion to order full or partial forfeiture of property. It applies to circumstances where the property relates to the proceeds of crime and is con- nected to the offence. Other countries have adopted sim- ilar approaches. In Canada, the RCMP has its own proceeds of crime branch. Cpl. Winston Shorey, its program analyst, says the related legislation is a key tool used in the force' tions of criminal organizations. "Most crime . . . is motivated by money, various assets since 2000. Defence lawyer Brian Greenspan says the Barrie case has "The mandate is to remove the financial incentives." In total, the RCMP has seized about $243 million in " he says. particular significance because DeRosa has never been tied to the marijuana grow operation and has never faced crimi- nal charges even though his brother is serving a seven-year sentence for his part in it. The building' operative with officials from the start, Greenspan adds. s owner has been co- s investiga- The case 'really does put property owners at serious risk,' says Brian Greenspan. to catch a plane to Ecuador. Robert later pleaded guilty to a series of charges in con- raid as a result of a multijurisdictional police investigation randomly called Project Birmingham, the brother, Robert DeRosa, was out of the coun- try. Two months later, police flew to Cuba to bring him home to face charges. Cuban officials had detained him at the airport where he was trying nection with the grow operation. During his plea, he apol- ogized to his brother and told the court Vince had noth- ing to do with the illicit activity. The court heard that he had taken a job from his brother to manage his buildings. Robert also pleaded guilty to offering to transfer a prohib- ited weapon, being part of a criminal organization, and conspiring to import cocaine from Colombia, Cuba, and Panama. Those three charges resulted from an OPP sting involving an informant and undercover agents in 2010. Previous forfeiture cases have paid attention to the PAGE 3 portion of the property used for criminal purposes and the Supreme Court has held that forfeitures were pro- portionate. Those issues are expected to arise in this case as well. Greenspan says the portion of the property used for the grow operation represents 3.6 per cent of the total property and any decision in favour of the prosecution should reflect that. LT Report sounds alarm on disclosure of non-conviction records BY GLENN KAUTH Law Times victions and share them in back- ground checks? That' S hould police be retain- ing records of their in- teractions with people that don't result in con- surfacing in a report released last week by the Canadian Civil Lib- erties Association. "Disclosing this type of sensitive information may undermine the presump- tion of innocence, s one of the questions port that sounds the alarm about records related to withdrawn criminal charges, findings of not guilty, charges never laid, and non-criminal interactions such as mental-health situations. "Employers who receive nega- " reads the re- tive records checks may not fully understand the distinctions be- tween different types of police in- formation, creating a significant risk that non-conviction records will be misconstrued as a clear indication of criminal conduct. In the case of mental health re- cords, this information may lead to illegal discrimination against those with mental disabilities." While the report notes there' no comprehensive data on all of these situations, it found there are about 125,000 non-convic- tion records created each year as a result of withdrawn charges, s mous," said CCLA general coun- sel Nathalie Des Rosiers. "Dur- ing the G20 weekend in Toronto, over a thousand individuals were arrested — many of whom were fingerprinted and photographed. Several hundred were charged with various crimes only to have the charges withdrawn in the overwhelming majority of cases. Just last week, hundreds of indi- viduals charged following mass arrests during the Quebec protests had all their charges withdrawn. These are the types of interactions that are being recorded in police databases and can show up in po- lice background checks." What' stays or acquittals. It notes the number doesn't even include records of situations that don't result in charges. "The scope of this issue is enor- ed that the procedures govern- ing the retention and release of such records exist in a legislative vacuum. As a result, it makes a number of recommendations for change: • Authorities should regularly review and destroy non-con- viction records in the major- ity of cases. s more, the report not- • Authorities should retain non-conviction records for inclusion in a police back- ground check only in excep- tional cases where police be- lieve that doing so is necessary • Affected individuals should have the right to make submis- sions on a decision to retain non-conviction information. to reduce immediate threats to public safety. • Individuals should have a right of appeal to an indepen- dent adjudicator. • Disclosure of non-conviction records should occur only in certain employment or vol- unteer positions. • Provincial human rights leg- islation should protect people from unwarranted discrimi- nation on the basis of non- conviction records. • Monitoring should be in ed by the CCLA arose recently at the Ontario Court of Appeal in J.N. v. The Durham Regional Police Service. The case dealt with J.N.' place on the use and impact of all forms of police back- ground checks. Some of the issues highlight- for a job with the local Catholic school board. She sought to re- move a reference in a criminal information request to an as- sault charge that the Crown had withdrawn presumably for lack of evidence. Police denied that request, but she was successful in having the record removed at the Superior Court. s bid the appeal court set aside that order on the grounds that the applicant should have sought judicial review at the Divisional Court. But David Rose, counsel for In a ruling in June, however, the CCLA as intervener in J.N., suggests the issue hasn't gone away. "In this case, I argued that police should be required to tell persons what their [criminal information requests] say, Rose. "Only in that manner will everyday Canadians who enjoy their constitutional presump- tion of innocence know what information is being kept by the government." 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