2015 ONSC 2097
COURT FILE NO: CV-15-521966
DATE: 20150401
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Attorney General of Ontario
Applicant/Moving Party
- and -
$205,100.00 In Canadian Currency (In REM)
Respondent/Responding Party
Miriam Young, for the Applicant/Moving Party
Kevin D. Toyne, for the Respondents Nicole Hoar and Victor Persaud
HEARD: March 24, 2015
(On a Motion For A Preservation Order Under The Civil Remedies Act, 2001)
WHITAKER J.
[1] This is a motion by the Attorney General of Ontario (“Attorney General”), seeking a preservation Order under Sections 4(1) and 9 (1) of the Civil Remedies Act, 2001, S.O. 2001, c 28 (the “CRA”). The motion is brought with respect to $205,100.00 in Canadian currency seized on December 7, 2014 by members of the Toronto Police Service from inside Apartment 1316 at 8 Mondeo Drive in Toronto, Ontario, pending the disposition of the motion for forfeiture.
[2] On January 8, 2015, the lawyer for Mr. Persaud and Ms. Hoar sent signed authorizations and directions from Ms. Hoar and Mr. Persaud to the TPS Property Unit authorizing and directing that the seized funds be provided to them. Eleven days later the TPS requested that the applicant consider commencing an Application for civil forfeiture. Almost a month later, the applicant appeared in Practice court, seeking the commencement of a motion for a preservation Order.
[3] The Attorney General submits that there are reasonable grounds to believe that the subject currency is proceeds and/or an instrument of unlawful activity within the meaning of the CRA and, therefore, should be preserved by the Court pending the final determination of the AG’s forfeiture Application.
[4] Mr. Persaud and Ms. Hoar ask that the applicant’s motion seeking a preservation Order should be dismissed on two grounds:
Firstly, that the lay opinion evidence of Officer Coleman, who was present on the scene, fails to comply with the requirements of Rules 4.1 and 53.03(2.1) and is, therefore, inadmissible;
Secondly, that the lay opinion evidence of Officer Huber, also appearing at the scene, is inadmissible, and to the extent that she is being tendered as an expert, her evidence fails to comply with the Rules 4.1 and 53.03(2.1) and is, therefore, inadmissible.
Thirdly, even if the opinion evidence is admissible, the crown has failed to establish reasonable grounds
[5] After Officers had entered the apartment where Mr. Persaud and Ms. Hoar lived, Mr. Persaud was placed under arrest.
[6] Mr. Persaud was taken to 41 Division and charged with domestic assault and threatening bodily harm. While officers were photographing the scene they found a large quantity of bundled Canadian currency. They later determined when it was counted that the amount of the money was $205,100.00 in Canadian currency.
[7] Ms. Hoar was not charged with any offence. She did not speak to police about the assault or her injuries, but she did say that the currency belonged to her. She stated that she works as a bartender at a pub and that she saved all the money from bartending and working under the table for the last seven years.
[8] Rule 53 applies to expert evidence tendered on a motion. Opinion evidence of a non-expert is only admissible if it complies with the rules governing lay opinion evidence. In Sopinka, Lederman and Bryant, The Law of Evidence in Canada, the authors note that the courts now have greater freedom to receive lay witnesses’ opinions if the witness has personal knowledge or observed facts in which case, the witness is in a better position than the trier of facts to draw inferences, - and where the witness has the necessary experiential capacity to draw inferences, - or where the opinion is a mode of speaking, and the witness could not as accurately and/or adequately and with reasonable facility, describe the facts that he or she is testifying about.
[9] The respondents take the position that the evidence of Officer Coleman is inadmissible because his evidence does not comply with Rule 53, he has not provided an acknowledgment of an expert’s duty, his evidence is based on double hearsay which is inadmissible pursuant to Rule 39, and finally, that his evidence is not fair, objective and non-partisan.
[10] There are a number of factors based on non-expert opinion evidence which the Attorney General relies on to draw the inference that the seized currency is associated with unlawful activity.
[11] They submit that the bulk of the evidence indicates that the money is connected in some way with drug trafficking or some other profit motivated unlawful activities. These circumstances are:
Firstly, the majority of the currency was bundled and bound by elastics. This is a manner that is consistent with the conduct of those engaged in profit motivated unlawful activity such as money couriers.
Secondly, a controlled currency dog or a canine sniff was conducted to detect whether there was an odour of controlled substances on the bills. The drug test resulted in a positive hit and this suggests that the currency was recently exposed to a controlled substance.
Thirdly, persons who were involved in lawful activity usually do not walk around with over $200,000 in small bills in their pockets. These practices are more commonly associated with criminals.
It is a reasonable assumption that if the money was not associated with a criminal activity, it would have been put in a bank or trust company.
Mr. Persaud has a criminal record for offences relating to trafficking and drugs.
Neither of the two respondents has provided a rational or credible explanation as to why this large amount of money was being stored in the apartment building.
Ms. Hoar explained that she had saved all this currency over the last 7 years as a bartender, however, the currency is made up almost exclusively of transparent polymer bills which were not available seven years ago.
Ms. Hoar did not seem to know the total amount of money that had been seized.
The threshold to meet for a preservation Order is reasonable grounds. This is a lower standard of proof than that of balance of probabilities. The court must be satisfied that there are reasonable grounds to believe that the property to be preserved is either the proceeds of unlawful activity or an instrument of unlawful activity. If the court is satisfied that the first part of the test has been met, then the court shall make the order unless it is clearly not in the interest of justice.
[12] The CRA defines “proceeds of unlawful activity” broadly. Unlawful activity includes that is likely to be used to engage in unlawful activity to result in the acquisition of other property or serious bodily harm to any person. Where a court finds that there are reasonable grounds to prove the property is proceeds or an instrument of unlawful activity, it shall preserve the property unless it is clearly not in the interest of justice.
[13] In 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), 2011 ONCA 363 (Ont CA), the Court of Appeal considered the meaning of “clearly not in the interest of justice”. The Court indicated that the question of forfeiture should not be decided on a mere balancing of the pros and cons. The Court observed that an exception to forfeiture should only be granted where the party seeking relief has demonstrated that forfeiture would be manifestly harsh or inequitable. See 1140 Aubin Road Windsor, supra, and Ontario (Attorney General) v. $51,000.00 in Canadian Currency (In Rem), 2012 ONSC 4958, para. 38.
[14] The Court of Appeal considered three non-exhaustive factors: the conduct of the party whose property is subject to forfeiture, the disparity between the amount of the proceeds and the amount sought to be forfeited, and thirdly, whether forfeiture would be consistent with the purposes of the statute.
[15] The applicant submits that what it describes as a narrow test for the term, “clearly not in the interest of justice”, should be applied more stringently in the context of a motion for preservation. At this point, the court is only being asked to protect the property at issue pending a determination on the merits. For this reason, the clearly not in the interest of justice exception, should be more narrowly applied. An example of money as proceeds or as an instrument of unlawful activity can be found in the Ontario Attorney General v. $61,686.12 in Canadian Currency (In Rem), [2009] O.J. No. 3874.
[16] The courts have been prepared to seize money where it is indicated that the money has been involved in drug trafficking with no other documents to support the assertion. See Ontario (Attorney General) v. $43,120 in Canadian Currency (In Rem), 2011 ONSC 3076.
[17] In my view, there are a number of reasons why the application of the law to the facts in this case should lead to the conclusion that there are reasonable grounds to believe the subject property is proceeds of unlawful activity.
[18] These circumstances are as follows and as noted above:
Most of the currency was bundled and bound by elastics. This is a manner consistent with the conduct of those engaged in profit for unlawful activity.
A currency dog or canine sniff was conducted to detect whether the currency was tainted with the odour of controlled substances.
Persons involved in lawful activity usually do not retain this amount of money in their homes.
It is reasonable to conclude that the currency, had it been lawful, would have been placed in a financial institution.
Outcome
[19] For these reasons, I find the Attorney General of Ontario is granted the relief sought. There shall be (i) the preservation of the $205,100.00 until the disposition of the forfeiture hearing or until otherwise ordered by this court, (ii) an order that the Toronto Police Service shall either deposit the money within the account of the Superior Court, an interest bearing account, to the credit of the applicant, or (iii) maintain the funds in public custody at the discretion of the director of Asset Management Civil.
Costs
[20] Costs are fixed at $5,000, all inclusive, and payable forthwith.
WHITAKER, J.
DATE: April 1, 2015
2015 ONSC 2097
COURT FILE NO: CV-15-521966
DATE: 20150401
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Attorney General of Ontario
Applicant
- and -
$205,100.00 In Canadian Currency (In REM)
Respondent
REASONS FOR DECISION
WHITAKER J.
Released: April 1, 2015