Attorney General of Ontario v. $104,877 in U.S. Currency (In Rem)

[Indexed as: Ontario (Attorney General) v. $104,877 in U.S. Currency (In Rem)]

Ontario Reports

Court of Appeal for Ontario,

Doherty, Pardu and Benotto JJ.A.

January 25, 2016

129 O.R. (3d) 312 | 2016 ONCA 71

Case Summary

Criminal law — Proceeds of crime — Forfeiture — Civil forfeiture — Appellant attempting to leave Canada with over $100,000 in U.S. cash in his bag and pockets — Attorney General applying successfully for forfeiture of currency under Civil Remedies Act — Application judge reasonably finding that appellant was cash courier and that funds were proceeds or instrument of unlawful activity — Application judge not erring in refusing to grant relief from forfeiture — Civil Remedies Act, 2001, S.O. 2001, c. 28.

When the appellant was searched at an airport on his way to Panama City, a total of $104,877 in U.S. cash was found in his bag and pockets. The Attorney General applied successfully for forfeiture of the cash under the Civil Remedies Act. The appellant appealed.

Held, the appeal should be dismissed.

The application judge correctly applied the two-step process mandated by the Act. She reasonably found that the funds were proceeds of or an instrument of unlawful activity and that the appellant was a courier rather than the legitimate owner. She did not err by not providing relief from forfeiture in accordance with the "interests of justice" exception. Finally, she did not err in her decision to order partial indemnity costs of $15,367.15 to the Attorney General.

Cases referred to

Ontario (Attorney General) v. $25,709.63, Court File No. CV-06-0172; Ontario (Attorney General) v. McDougall, [2011] O.J. No. 2122, 2011 ONCA 363, 279 O.A.C. 268, 269 C.C.C. (3d) 159, 333 D.L.R. (4th) 326, 95 W.C.B. (2d) 520, 202 A.C.W.S. (3d) 505

Statutes referred to

Civil Remedies Act, 2001, S.O. 2001, c. 28, ss. 3, (3), 8 [as am.], (3)

APPEAL from the order of Chapnik J., [2014] O.J. No. 4634, 2014 ONSC 5688 (S.C.J.) granting a forfeiture of currency.

Glenroy Bastien, for appellant.

Miriam Young and Anastasia Mandziuk, for respondent.

Endorsement

[1] Endorsement BY THE COURT: -- This is an appeal from the order of the application judge which granted the Attorney General of Ontario forfeiture of $104,877 in U.S. currency under ss. 3 and 8 of the Civil Remedies Act, 2001, S.O. 2001, c. 28. [page313]

[2] Alexander Bourgeois was on his way to Panama City when an airport security employee operating an X-ray machine detected something suspicious in his backpack. A search of his bag revealed US$100,000 in tightly wound bundles stuffed into 22 socks. Upon arrest, police officers found two more bundles totalling US$4,877 in Mr. Bourgeois' pockets, and a small amount of cocaine in his wallet.

[3] On the application, the appellant said that the money was a combination of earnings from tips when he worked in a casino, gambling winnings and an insurance settlement arising from the death of his mother in a motor vehicle accident.

[4] The appellant submits that the application judge erred in determining that the funds were proceeds of an unlawful activity or an instrument of unlawful activity and that he was not a legitimate owner. He submits that there must be a factual context -- in addition to the discovery of the cash -- in order for the application judge to find that the moneys were the proceeds of an unlawful activity. He relies on Ontario (Attorney General) v. $25,709.63, Court File No. CV-06-0172, at para. 33. He submits that this error on the part of the application judge amounted to an error of law reviewable on the correctness standard. He further submits that, in any event, the application judge should have granted relief from forfeiture in accordance with the "interests of justice" exception.

[5] We conclude that, in rejecting the appellant's submissions, the application judge made no error. She correctly applied the two-step process mandated by the Civil Remedies Act: first, the Attorney General of Ontario must satisfy the court that the property is either the proceeds of unlawful activity or the instrument of unlawful activity; and then, second, the respondent may seek protection from forfeiture under s. 3(3) or s. 8(3) as either a "legitimate owner" or a "responsible owner".

[6] At the first step, the application judge found that, on a balance of probabilities, Mr. Bourgeois was acting as a cash courier -- either for drug trafficking or other profit-motivated unlawful activity. She specified that her conclusion was based on compelling evidence. In this regard, we conclude that she did consider the totality of the evidence and based her decision on factors in addition to the discovery of the money. She relied on and accepted a "veritable laundry-list of evidence" and those findings are entitled to deference. In addition, she found that Mr. Bourgeois did not provide any cogent explanation for his behaviour or the amount of money in his possession. These findings by the application judge were reasonable on the evidence before her and no error has been shown. [page314]

[7] At the second step, the application judge noted that at most Mr. Bourgeois' evidence showed that it was possible for him to earn the money without unlawful activity. That was not sufficient for the appellant to discharge his onus.

[8] We do not agree that the application judge erred by not providing relief under the "interests of justice" exception. She considered the three factors provided in this court's decision in Ontario (Attorney General) v. McDougall, [2011] O.J. No. 2122, 2011 ONCA 363 and concluded that the appellant was not an innocent owner; as the appellant was likely a participant in unlawful activity, his actions were not reasonable, it was not possible to distinguish the proceeds of crime from any other property, and the objectives of the legislation favoured forfeiture.

[9] Lastly, we see no error in her decision to order partial indemnity costs of $15,367.15 payable to the Attorney General.

[10] The appeal is therefore dismissed with costs payable to the respondent in the amount of $6,000, inclusive of disbursements and HST.

Appeal dismissed.

End of Document