Court File and Parties

CITATION: Ontario (Attorney General) v. Lok, 2008 ONCA 632

DATE: 20080916

DOCKET: C47657

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., MACFARLAND AND EPSTEIN JJ.A.

BETWEEN:

ATTORNEY GENERAL OF ONTARIO

Respondent

and

$15,020.00 IN CANADIAN CURRENCY; $2,000 IN U.S. CURRENCY; INDOOR MARIJUANA GROWING EQUIPMENT; 31 CLARION CRESCENT, MARKHAM (IN REM); YIU NGAU LOK (ALSO KNOWN AS YIU LOK OR YIU N. LOK) AND HSBC BANK OF CANADA

Defendants (Appellants)

Counsel: Ryan Naimark for the appellants Rosalyn Train and Josh Hunter for the respondent

Heard and released orally: September 5, 2008

On appeal from the judgment of Justice Rose Boyko of the Superior Court of Justice dated August 1, 2007.

ENDORSEMENT

[1] The appellant was charged with theft of hydro, the production of marijuana, and the possession of marijuana for the purpose of trafficking. The appellant accepted responsibility for these offences and was sentenced under the Alternative Measures Regime in s. 717 of the Criminal Code to a diversion plan that included a charitable donation, the forfeiture of the equipment seized, and the withdrawal of the three charges.

[2] In this appeal from the application judge’s decision to allow the Attorney General’s application under the Civil Remedies Act for forfeiture of certain property, the appellant raises a number of issues, most of which center on his Charter rights.

[3] The property that was the subject of the application was cash found on the appellant at the time of his arrest and the net proceeds from the sale of his house where the marijuana grow-op was located and where the theft of hydro occurred. The difficulty the appellant faces is that by virtue of his entering into the diversion program, under s. 717 of the Code, he accepted responsibility for the acts that formed the basis of these offences. The fact of the appellant’s having accepted responsibility for these offences is a matter of record. Accordingly, any Charter arguments he may have had, have been subsumed through his agreement to accept the Crown’s offer to enter the diversion program.

[4] The appellant candidly admits that this appeal will largely depend on the Charter arguments. However he does submit that even if we do not accept this aspect of his submissions, the evidence is insufficient to establish that the cash found on him at the time of his arrest constituted proceeds of unlawful activity. He does not press this argument in relation to the proceeds of the sale of his home.

[5] We disagree with this submission. In our view, the totality of the evidence in support of the application in relation to the cash found on the appellant at the time of his arrest was overwhelming.

[6] There was ample evidence linking the appellant to the marijuana grow-operation. The appellant at the time of his arrest was a chef earning $24,000. While he did have access to other funds, he failed to adduce any evidence seeking to explain why he was carrying cash in such an amount and of such a nature. Drug dealings are a cash business. The mixture of denominations of the cash is consistent with the monies’ being the proceeds of trafficking.

[7] In allowing the forfeiture application, the application judge properly found that the onus of proving the money constituted proceeds of unlawful activity rested with the Crown. The application judge was satisfied on a balance of probabilities that the money constituted proceeds of unlawful activity. No palpable or overriding error on the part of the application judge has been identified. The appeal is therefore dismissed.

[8] The costs of this appeal are fixed at $10,000 inclusive of disbursements and G.S.T., not payable or recoverable until the decision in the Chatterjee[^1] case is released (Ontario (Attorney General) v. Chatterjee (2007), 2007 ONCA 406, 221 C.C.C. (3d) 350 (Ont. C.A.) and Chatterjee v. Ontario (Attorney General), [2007] S.C.C.A. No. 414).

[9] If the legislation is struck, no costs will be payable.

“W. Winkler C.J.O.”

“J. MacFarland J.A.”

“G. Epstein J.A.”

[^1]: Ontario (Attorney General) v. Chatterjee (2007), 2007 ONCA 406, 221 C.C.C. (3d) 350 (Ont. C.A.) and Chatterjee v. Ontario (Attorney General), [2007] S.C.C.A. No. 414.