ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-12-0016
DATE: 2012-08-24

B E T W E E N:

ATTORNEY GENERAL OF ONTARIO,

Sandra DiCiano , for the Applicant/Moving Party

Applicant

• and -

$42,885 IN CANADIAN CURRENCY ( IN REM),

No one appearing for the Respondent

Respondent

HEARD: August 23, 2012, at Thunder Bay, Ontario

Mr. Justice D. C. Shaw

Reasons On Application For Forfeiture

[ 1 ] This is an application for a forfeiture order under the Civil Remedies Act , 2001, with respect to $42,885 seized by the Ontario Provincial Police from Mark Fox on February 11, 2011.

[ 2 ] Mr. Fox was personally served on February 27, 2012, with the Notice of Application, Motion Record, Factum and Book of Authorities. He has not appeared and no materials have been filed in response to the Notice of Application. Pursuant to Rule 38.07(1) and (2) of the Rules of Civil Procedure and subsection 15.5(3) of the Civil Remedies Act , Mr. Fox is not entitled to any further notice of a proceeding or motion or any further documents in respect of the same matter.

[ 3 ] At the opening of the hearing of the application, Mr. Fox was paged, with no response.

[ 4 ] I am satisfied that, on the balance of probabilities, the $42,885 found in Mr. Fox’s vehicle and on his person on February 11, 2011, is property which is proceeds of “unlawful activity” as defined in the Civil Remedies Act and is also an “instrument of unlawful activity”.

[ 5 ] As stated by Power J. in Ontario (Attorney General) v. $1,650 in Canadian Currency (In Rem) , [2008] O.J. No. 2076, at para. 3 :

It is a well known fact that persons involved in illegal drug activity frequently are found carrying large sums of cash for the purpose of purchasing drugs or as proceeds from the sale of drugs. The suspicion that arises, therefore, calls for a credible and reasonable answer. No such answer has been forthcoming from Mr. Montgomery.

[ 6 ] The evidence presented in support of the application is found in the affidavits of Constable Lafontaine and Detective Sergeant James Graham.

[ 7 ] I conclude that the money in question should be forfeited based on the following:

(a) the sum of $42,885, in cash, bundled largely in $20 and $100 bills, secured with elastic bands, is a relatively large sum of money, carried in a manner consistent with the purpose of purchasing drugs or as proceeds from the sale of drugs. Drug trafficking is a cash business. Detective Sergeant Graham provided expert evidence in this regard.

(b) the amount of cash and the manner in which it was bundled and transported calls for a credible and reasonable answer from Mr. Fox. No explanation was given by Mr. Fox within this proceeding. The proceeding is undefended. His explanation given to Constable Lafontaine at the time of the seizure of the monies, that he won the monies at casinos in Thunder Bay and Winnipeg, was contradicted by records and information from those casinos subsequently received by the police.

(c) Mr. Fox has never requested the return of the monies;

(d) Mr. Fox has previous drug related convictions, including two convictions for trafficking in a controlled substance. He is presently facing unrelated charges laid subsequent to the seizure of the monies, for possession of a controlled substance for the purpose of trafficking.

(e) Mr. Fox was found to have a bank card, indicating he had a bank account. It is reasonable to conclude that had the money been obtained by legitimate means, it would have been placed in a bank account rather than stored in a duffle bag in Mr. Fox’s vehicle.

[ 8 ] This uncontradicted evidence provides strong support for the Crown’s case that the monies seized were more than likely the proceeds of or an instrument of unlawful activity and that the monies should be forfeited. An order has been made accordingly.

The Hon. Mr. Justice D. C. Shaw

Released: August 24, 2012

COURT FILE NO.: CV-12-0016
DATE: 2012-08-24

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ATTORNEY GENERAL OF ONTARIO Applicant - and – $42,885 IN CANADIAN CURRENCY ( IN REM), Respondent REASONS ON APPLICATION FOR FORFIETURE Shaw J.

Released: August 24, 2012

/mls