Ontario (Attorney General) v. $25,065.00 in Canadian Currency (In Rem), 2015 ONSC 1581
COURT FILE NO.: CV-15-0026-00
DATE: 2015 01 15
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ONTARIO (ATTORNEY GENERAL) v. $25,065.00 IN CANADIAN CURRECNCY (IN REM)
BEFORE: FAIRBURN J
COUNSEL: Marie Jean Dixon, for the Attorney General
HEARD: January 15, 2015
ENDORSEMENT
[1] I have reviewed the motion record, factum and book of authorities provided to the court by counsel for the Ministry of the Attorney General, Legal Services Division, Civil Remedies for Illicit Activities Office [“CRIA”]. On an ex parte basis, the Attorney General seeks a preservation order pursuant to s. 4(1) (8.) of the Civil Remedies Act, 2001, SO 2001, c 28 [“Act”], which maintains that where there is a pending or intended forfeiture proceeding pursuant to ss. 3(1) and 8(1) of the Act, then an interlocutory order can be made to preserve, manage or dispose of property that is the subject of that proceeding.
[2] Here, the Attorney General intends to seek the forfeiture of $25, 065.00 in Canadian currency and $10.00 in US funds. On the evidence presented to me in the affidavit of Constable David Clark, sworn on January 12, 2015, the money appears to have been taken from a vehicle operated by a Brandon James Richards of 22 Selhurst Drive, Brampton, Ontario. He was arrested for possession of a controlled substance (appearing to be a small amount of marijuana). A search was conducted incident to arrest and in the trunk of the vehicle Mr. Richards was alleged to be driving, a shoe box was found. In it the police located the cash that is the subject of this application.
[3] This is not the forfeiture application, but merely a request to have the court issue an order so that the money can be preserved pending the hearing of the full application. The genesis of this request arises from a December 18, 2014 order of the Ontario Court of Justice, ordering the return of these funds to Brandon Richards. This order was made pursuant to an application of Cst. Clark. The order issued under s. 490(9) of the Criminal Code and requires the return of the funds to Mr. Richards, but clearly states that the “order is without prejudice to and in no way affects any proceedings that have been or may be launched under the Income Tax Act and/or Civil Remedies Act”. I am aware that in Ontario (Attorney General) v $787, 940 in Canadian Currency (In Rem) there is a suggestion of conflict between a return order under s. 490 of the Criminal Code and the ability to issue an order under the Act. I am also aware of the great deal of authority that maintains there is no conflict. I agree that there is no conflict between the s. 490(9) return order and the preservation order being requested in this case. In any event, the s. 490(9) order in this case made it clear that it was made “without prejudice to” any proceeding launched under the Act. I find that the Attorney General is not barred from seeking this preservation order.
[4] Moreover, having regard to s. 4(3) and 9(3) of the Act, the court can proceed ex parte and make an order without notice for a period not exceeding 30 days. Having reviewed Constable Clark’s affidavit, I am satisfied that there are reasonable grounds to believe that the cash contained within the shoe box in the trunk of the vehicle alleged to be driven by Mr. Richards on the night in question are the proceeds of unlawful activity. Moreover, I am satisfied (to use the language of s. 4(2) and 9(2) of the Act) that it would not be “clearly” not in the interests of justice to make the preservation order.
[5] Order to go as per draft as amended by me.
FAIRBURN J
DATE: January 15, 2015
Canadian Currency (In Rem), 2015 ONSC 1581
COURT FILE NO.: CV-15-0026-00
DATE: 2015 01 15
SUPERIOR COURT OF JUSTICE
- ONTARIO
RE: ONTARIO (ATTORNEY GENERAL) v. $25,065.00 IN CANADIAN CURRECNCY (IN REM)
BEFORE: FAIRBURN J
COUNSEL: Marie Jean Dixon, for the Attorney General
ENDORSEMENT
FAIRBURN J
DATE: January 15, 2015