Ontario (Attorney General) v. $13,900 in Canadian Currency (In Rem)

CITATION: Ontario (Attorney General) v. $13,900 in Canadian Currency (In Rem), 2015 ONSC 2267

COURT FILE NO.: CV-14-496368

DATE: 20150408

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ATTORNEY GENERAL OF ONTARIO

Applicant

– and –

$13,900 IN CANADIAN CURRENCY (IN REM)

Respondent

Miriam Young for the Attorney General of Ontario

Jamal Wilson, self-represented

HEARD: April 1, 2015

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] On January 6, 2013, the Toronto Police Service seized $13,900 in Canadian currency from Jamal Wilson. The Attorney General of Ontario applies for a forfeiture Order under the Civil Remedies Act, 2001, S.O. 2001, c. 28.

[2] For the reasons that follow the Application is granted.

B. FACTUAL AND PROCEDURAL BACKGROUND

1. Evidentiary Background

[3] Mr. Wilson delivered a very short affidavit in response to the Attorney General’s forfeiture application.

[4] The Attorney General’s application for forfeiture pursuant to the Civil Remedies Act, 2001, was supported by:

• Affidavit of Christos Alexakis, sworn October 27, 2014. Constable Alexakis was the uniformed police officer who, along with Constable McPherson, stopped the vehicle driven by Mr. Wilson when the seizure was made.

• Affidavit of Benjamin Ardiles, sworn October 29, 2014. Constable Ardiles photographed the material seized from Mr. Wilson.

• Affidavit of Rosanna Francis, sworn December 18, 2014. Ms. Francis is a law clerk at the Civil Remedies for Illicit Activities Office of the Ministry of the Attorney General.

• Affidavit of Kenneth G. Furton, sworn September 23, 2014. Dr. Furton is Professor of Chemistry and Biochemistry, the Provost, Executive Vice President and Chief Operating Officer of Florida International University and founding Director and Director Emeritus of the International Institute of Florida International University. Dr. Furton was requested to provide an expert opinion regarding whether the drug-alert to the currency seized from Mr. Wilson is reliable evidence of the currency being in contact with illegal drugs.

• Affidavit of Yekaterina Galamiyeva, sworn October 27, 2014. Constable Galamiyeva was involved in a different matter when he was asked to assist Constables Alexakis and McPherson who had stopped the vehicle driven by Mr. Wilson.

• Affidavit of Dwayne King, sworn January 15, 2015. Detective Constable King is a member of the Financial Crimes Unit – Asset Forfeiture Section. He was assigned to assist in the investigation of the seizure that is the subject of this Application.

• Affidavit of Yovanka McBean, sworn January 21, 2015. Ms. McBean is an employee of the Ontario Motor Vehicle Industry Council. She is a paralegal and the Legal Support Manager of its Legal Department.

• Affidavit of Anne McPherson, sworn October 28, 2014. Constable McPherson was the uniformed police officer who, along with Constable Alexakis, stopped the vehicle driven by Mr. Wilson.

• Affidavit of Sean Thrush, sworn October 30, 2014. Sergeant Thrush is assigned to the Toronto Police Service Canine Unit. He is a dog handler. With a Springer Spaniel named Skye, Sergeant Thrush performed a controlled currency sweep on the currency seized from Mr. Wilson.

• Affidavit of Kirby Reddin, sworn October 31, 2014. Detective Reddin was assigned to interview Mohamed Ahmed Abdelkarim in connection with the investigation involving the seizure.

• Affidavit of Adam Svendsen, sworn October 27, 2014. Detective Constable Svendsen reconciled the currency seized from Mr. Wilson.

• Affidavit of Matthew Wighton, sworn November 6, 2014. Detective Constable Wighton was involved in another matter when he came to the assistance of Constables Alexakis and McPherson. Detective Constable Wighton searched the vehicle being driven by Mr. Wilson.

[5] Having reviewed Dr. Furton’s credentials and his scholarly and research activities, I am satisfied that he is qualified to provide opinion evidence and that his evidence satisfies the test for the admission of expert evidence. See R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at para. 17; R. v. J-L. J., 2000 SCC 51, [2000] 2 S.C.R. 600; R. v. Sekhon, 2014 SCC 15 at para. 43.

[6] I was persuaded by Dr. Furton’s expert opinion evidence that the drug-alert to the currency seized from Mr. Wilson is reliable evidence that the currency was in contact with illegal drugs.

2. Factual Background

[7] On January 6, 2013, Constables Alexakis and McPherson, uniformed Toronto police officers on bike patrol, stopped a 2004 Lincoln Navigator being driven by Mr. Wilson. The stop was made because the windows of the vehicle were so darkly tinted (blacked-out) that the officers could not identify the driver or whether there were passengers in the vehicle. Mr. Wilson was asked to produce identification, and he produced a temporary Ontario driver’s licence that did not have a photograph. The police officers observed a Quebec driver’s licence in Mr. Wilson’s wallet in the name of “Sadiaka Adamou” but with a picture of Mr. Wilson. He admitted that the Quebec licence was fraudulent.

[8] Two other police officers in the vicinity, Constable Galamiyeva and Detective Constable Wighton, who were involved in a different matter, came to assist Constables Alexakis and McPherson.

[9] While speaking with Mr. Wilson, the police officers observed an open case of beer in the rear passenger seat. Mr. Wilson was asked to exit the vehicle, and while the police searched for open alcohol, they detected a faint odour of marijuana and they located several air fresheners and two cell phones in the vehicle. In the centre console, they located bundled Canadian currency totalling $13,900. There were three bundles. Bundle #1 was bound with blue elastics and divided into two sub-bundles that were also bound with blue elastics. Bundle #2 was bound with blue elastics. Bundle #3 was folded in half and was not bound with elastics.

[10] Mr. Wilson told the police that the vehicle belonged to his uncle and he provided vehicle insurance documents in the name of Abdelkarim Ahmed. Mr. Wilson told the police that he owned a business called “JW Enterprises” that buys vehicles at auction and sells them overseas in Ghana. He said that the currency in the car was from exporting used cars overseas through JW Enterprises and that there was approximately $20,000 in the vehicle, maybe more.

[11] The police seized the Quebec driver’s licence, Mr. Wilson’s Ontario health card, a VISA card in his name, an RBC debit card, the temporary driver’s licence, an iPhone, and the currency.

[12] Mr. Wilson was charged with: (1) possession of the proceeds of crime, contrary to s. 354(1)(a) of the Criminal Code; (2) driving with windows coated, contrary to s. 73(2) of the Highway Traffic Act; (3) driving while under suspension, contrary to s. 53(1) of the Highway Traffic Act; and (4) possession of more than one licence, contrary to s. 35(1)(e) of the Highway Traffic Act. The charges, however, were subsequently withdrawn.

[13] Later in the day, Constable Reddin interviewed Mr. Ahmed, the registered owner of the Lincoln Navigator. In his interview, Mr. Ahmed said that he had known Mr. Wilson since 2010 and was not related to him. Five months earlier, he had purchased a vehicle from Mr. Wilson, and he gave the Lincoln Navigator to Mr. Wilson to sell overseas for $7,000. Mr. Wilson paid the insurance on the vehicle in exchange for the privilege of driving it pending its sale. Mr. Ahmed said that it is possible that Mr. Wilson carries large amounts of cash, and he understood that Mr. Wilson had bought a house with a $100,000 down payment.

[14] The police investigation confirmed that Mr. Wilson has a business registered with the Ministry of Consumer Services as JW Enterprises.

[15] At the hearing of the forfeiture motion, Mr. Wilson produced several bills of sale for his automobile purchases.

[16] Mr. Wilson, however, has not registered his business with the Ontario Motor Vehicle Industry Council, which is responsible for administering the Motor Vehicles Dealers Act, 2002, S.O. 2002, c. 30 Sched. B. Registration under the Act is required for a person to act as a dealer or salesperson or to export vehicles for sale outside of Ontario. It is an offence under this statute to not be registered when acting as a dealer.

[17] On April 4, 2013, a controlled drug test was conducted on the seized currency. A trained narcotics dog detected drugs on the currency.

[18] It was the expert opinion of Dr. Furton, a chemistry professor with considerable expertise with the forensic use of drug detector dogs, that in the case at bar, the drug alert indicated that the currency was in recent contact with cocaine and that the “hit” by the detector dog was not a result of innocently “tainted” currency in general circulation.

[19] I conclude from Dr. Furton’s evidence that while most circulated currency is tainted with traces of drugs, the amount of normal trace contamination is insufficient to signal an alert from a properly trained drug dog. More precisely, paper currency in circulation is typically contaminated with microscopic amounts of cocaine, but the amounts are millions to billions of times less than the gram amounts of cocaine to which narcotics detection canines are trained to alert. Visualize, the amount of cocaine particles detected on US circulated currency ranges from the nanogram (10^-9 g., billions of a gram) to microgram (10^-6 g., millionth of a gram) levels of total extractable cocaine. The threshold of detection where the majority of certified law enforcement detection canines tested give an alert is microgram quantities.

[20] As already noted above, I was persuaded by Dr. Furton’s expert opinion evidence that the drug-alert to the currency seized from Mr. Wilson is reliable evidence that the currency was in contact with illegal drugs.

3. Procedural Background

[21] On January 17, 2014, the Attorney General brought a motion for an ex parte preservation Order under the Civil Remedies Act, to preserve the money seized for thirty days. Justice Low adjourned the matter to January 22, 2014 to allow the Attorney General to present additional evidence.

[22] On January 22, 2014, Justice Low granted an ex parte preservation Order under the Civil Remedies Act preserving the money until February 19, 2014.

[23] On February 19, 2014, Justice Himel granted a consent preservation Order preserving the $13,900 pending the disposition of the Application.

[24] On September 22, 2014, Mr. Wilson’s lawyer served the Attorney General with a Notice of Change of Solicitor indicating that Mr. Wilson would now be representing himself.

[25] On October 1, 2014, the Application hearing was adjourned sine die by Justice Stinson.

[26] On November 7, 2014, the Attorney General served the Respondent personally with an Application Record.

[27] On November 17, 2014, Justice Himel set an Application hearing date of January 6, 2015.

[28] On January 6, 2015, I adjourned the forfeiture application to April 1, 2015 to allow Mr. Wilson to deliver his affidavit evidence.

C. DISCUSSION

1. Forfeitures and Defences to Forfeiture under the Civil Remedies Act

[29] The Civil Remedies Act, 2001, was enacted to deter crime and to compensate victims; its approach to these purposes is to authorize in rem forfeiture of property connected to criminal activity: Chatterjee v. Ontario (Attorney General), 2009 SCC 19 at paras. 3 and 4.

[30] An application under the Civil Remedies Act is a proceeding in rem, being a claim against property rather than against a person. The Act does not create an offence and is not concerned about the the identification, charge, or prosecution, conviction, or punishment of an offender: Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, [2007] O.J. No. 2102 (Ont. C.A.), aff’d at 2009 SCC 19 (SCC).

[31] Under the Act, the Attorney General is authorized to bring a forfeiture application pursuant to ss. 3 and 8 of the Civil Remedies Act, 2001, which state:

Forfeiture order

3. (1) In a proceeding commenced by the Attorney General, the Superior Court of Justice shall, subject to subsection (3) and except where it would clearly not be in the interests of justice, make an order forfeiting property that is in Ontario to the Crown in right of Ontario if the court finds that the property is proceeds of unlawful activity.

Action or application

(2) The proceeding may be by action or application.

Legitimate owners

(3) If the court finds that property is proceeds of unlawful activity and a party to the proceeding proves that he, she or it is a legitimate owner of the property, the court, except where it would clearly not be in the interests of justice, shall make such order as it considers necessary to protect the legitimate owner’s interest in the property. .

Same

(4) Without limiting the generality of subsection (3), an order made under subsection (3) may,

(a) sever or partition any interest in the property or require any interest in the property to be sold or otherwise disposed of, to protect the legitimate owner’s interest in the property; or

(b) provide that the Crown in right of Ontario takes the property subject to the interest of the legitimate owner.

Limitation period

(5) A proceeding under this section shall not be commenced after the 15th anniversary of the date proceeds of unlawful activity were first acquired as a result of the unlawful activity that is alleged to have resulted in the acquisition of the property that is the subject of the proceeding.

Forfeiture order

8. (1) In a proceeding commenced by the Attorney General, the Superior Court of Justice shall, subject to subsection (3) and except where it would clearly not be in the interests of justice, make an order forfeiting property that is in Ontario to the Crown in right of Ontario if the court finds that the property is an instrument of unlawful activity.

Action or application

(2) The proceeding may be by action or application.

Responsible owners

(3) If the court finds that property is an instrument of unlawful activity and a party to the proceeding proves that he, she or it is a responsible owner of the property, the court, except where it would clearly not be in the interests of justice, shall make such order as it considers necessary to protect the responsible owner’s interest in the property.

Property sold, disposed of

(3.1) Where property that is the subject of a proceeding under this section is modified or sold or otherwise disposed of after the proceeding has been commenced but before an order is made under subsection (1), the proceeding shall be continued in respect of the modified property or property that is realized from the sale or other disposition and, if the original property would have been found to be an instrument of unlawful activity, the court shall make a finding that the modified or realized property is also an instrument of unlawful activity.

Protecting responsible owner’s interest

(4) Without limiting the generality of subsection (3), an order made under subsection (3) may,

(a) sever or partition any interest in the property or require any interest in the property to be sold or otherwise disposed of, to protect the responsible owner’s interest in the property; or

(b) provide that the Crown in right of Ontario takes the property subject to the interest of the responsible owner.

No limitation period

(5) There is no limitation period for a proceeding under this section.

[32] Under. s. 3, the court may order property forfeit if the court finds that the property is “proceeds of unlawful activity”. Under s. 8, the court may order property forfeit if the court finds that the property is “an instrument of unlawful activity.”

[33] For the purposes of a s. 3 forfeiture order, s. 2 of the Act defines “legitimate owner”, “proceeds of unlawful activity”, “property”, and “unlawful activity” as follows:

Definitions

2. In this Part, …

“legitimate owner” means, with respect to property that is proceeds of unlawful activity, a person who did not, directly or indirectly, acquire the property as a result of unlawful activity committed by the person, and who,

(a) was the rightful owner of the property before the unlawful activity occurred and was deprived of possession or control of the property by means of the unlawful activity,

(b) acquired the property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity, or

(c) acquired the property from a person mentioned in clause (a) or (b);

“proceeds of unlawful activity” means property acquired, directly or indirectly, in whole or in part, as a result of unlawful activity, whether the property was acquired before or after this Act came into force, but does not include proceeds of a contract for recounting crime within the meaning of the Prohibiting Profiting from Recounting Crimes Act, 2002;

“property” means real or personal property, and includes any interest in property; (“bien”)

“unlawful activity” means an act or omission that,

(a) is an offence under an Act of Canada, Ontario or another province or territory of Canada, or

(b) is an offence under an Act of a jurisdiction outside Canada, if a similar act or omission would be an offence under an Act of Canada or Ontario if it were committed in Ontario,

whether the act or omission occurred before or after this Part came into force.

[34] For the purposes of a s. 8 forfeiture order, s. 7 of the Act, defines “instrument of unlawful activity”, “property”, “responsible owner”, and “unlawful activity”, as follows:

Definitions

7.(1) In this Part, …

“instrument of unlawful activity” means property that is likely to be used to engage in unlawful activity that, in turn, would be likely to or is intended to result in the acquisition of other property or in serious bodily harm to any person, and includes any property that is realized from the sale or other disposition of such property; (“instrument d’activité illégale”)

“property” means real or personal property, and includes any interest in property; (“bien”)

“responsible owner” means, with respect to property that is an instrument of unlawful activity, a person with an interest in the property who has done all that can reasonably be done to prevent the property from being used to engage in unlawful activity, including,

(a) promptly notifying appropriate law enforcement agencies whenever the person knows or ought to know that the property has been or is likely to be used to engage in unlawful activity, and

(b) refusing or withdrawing any permission that the person has authority to give and that the person knows or ought to know has facilitated or is likely to facilitate the property being used to engage in unlawful activity; (“propriétaire responsable”)

“unlawful activity” means an act or omission that,

(a) is an offence under an Act of Canada, Ontario or another province or territory of Canada, or

(b) is an offence under an Act of a jurisdiction outside Canada, if a similar act or omission would be an offence under an Act of Canada or Ontario if it were committed in Ontario,

whether the act or omission occurred before or after this Part came into force.

Instruments of unlawful activity

(2) For the purpose of the definition of “instrument of unlawful activity” in subsection (1), proof that property was used to engage in unlawful activity that, in turn, resulted in the acquisition of other property or in serious bodily harm to any person is proof, in the absence of evidence to the contrary, that the property is likely to be used to engage in unlawful activity that, in turn, would be likely to result in the acquisition of other property or in serious bodily harm to any person.

Same

(3) Where property that is the subject of a proceeding or intended proceeding under section 8 was modified or sold or otherwise disposed of before an order is made under subsection 8 (1), the determination of whether the modified property or the property that was realized from the sale or other disposition of the property is an “instrument of unlawful activity” shall be based on whether the property was likely to be used to engage in unlawful activity before it was modified or sold or otherwise disposed of.

[35] Under the Civil Remedies Act, 2001, if the Attorney General shows that the property is the proceeds or the instrument of unlawful activity or both and the respondent fails to prove that he or she is a legitimate or reasonable owner, the court shall forfeit the property in question unless it is clearly not in the interests of justice: Ontario (Attorney General) v. $104,877 in U.S. Currency (In Rem), 2014 ONSC 5688 at para. 31.

[36] For a forfeiture order, the onus is on the Attorney General to show on the balance of probabilities that either: (a) the property is “proceeds of unlawful activity”; or (b) the property is “instrument of unlawful activity”: Chatterjee v. Ontario (Attorney General), supra at para. 23; Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), 2011 ONCA 363 at para. 54.

[37] Similar fact and propensity evidence is admissible in civil proceedings under the Act: F.H. v. McDougall, 2008 SCC 53; A.G. v. $5,545 in Canadian currency (In Rem), [2011] O.J. No. 2190 (S.C.J.); Ontario (Attorney General) v. $9,475 in Canadian Currency (In Rem), 2014 ONSC 3711 at para. 37.

[38] A respondent's criminal record is admissible and may be probative as similar fact evidence of a respondent’s past unlawful activity: Ontario (Attorney General) v. $5,545 in Canadian Currency (In Rem), 2011 ONSC 2827 (Div. Ct.) at paras. 29 and 30; Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), supra, at para. 46; Ontario (Attorney General) v. $9,616.98 in Canadian Currency (In Rem), 2011 ONSC 3820 (Div. Ct.); Ontario (Attorney General) v. $10,000.00 in Canadian Currency (In Rem), 2014 ONSC 944. (Mr. Wilson has no criminal record.)

[39] There are situations where property can be both proceeds of unlawful activity and an instrument of unlawful activity. For example, in Ontario (Attorney General) v. Chow, [2003] O.J. No. 5387 (S.C.J) the Court accepted that money that was proceeds of unlawful activity (because it was obtained from the sale of drugs) was also an instrument of unlawful activity when it could be used to purchase more drugs. See also Ontario (Attorney General) v. $104,877 in U.S. Currency (In Rem), supra.

[40] Unlawful activity is not limited to crimes under the Criminal Code and means offences under federal or provincial statutes or offences outside Canada if a similar act or omission would be an offence if committed in Ontario.

[41] In Ontario (Attorney General) v. $138,650 in Canada Currency (In Rem), 2012 ONSC 7230, welfare fraud was found to be an unlawful activity giving rise to a forfeiture. In Ontario (Attorney General) v. Condominium Units 1210 and 1310 at 8 Scollard Street, Toronto (In Rem), 2011 ONSC 3067, violations of the Consumer Protection Act, 2002, S.O. 2002, c. 30, Sched. A, constituted an illegal activity.

[42] Pursuant to s. 17(2) of the Civil Remedies Act, 2001, an offence may be found to have been committed even if no person has been charged with the offence or even if a person was charged with the offence but the charge was withdrawn or stayed, or the person was acquitted of the charge. See Ontario (Attorney General) v. Chatterjee, supra.

[43] A conviction on criminal charges is not required for the Court to find that property is proceeds or an instrument of unlawful activity. The statute does not require finding of fault, either criminal or civil, against a person: Ontario (Attorney General) v. Chatterjee, supra; Ontario (Attorney General) v. Chow, supra.

[44] In Ontario (Attorney General) v. 170 Glenville Road, King (In Rem), [2010] O.J. No. 2865 (S.C.J.), aff’d 2011 ONCA 444, a residential property used as a marijuana grow operation was forfeited as an instrument of unlawful activity where the property owner did not establish that he was a responsible owner. See also: Ontario (Attorney General) v. Jinarern, [2005] O.J. No. 6008 (S.C.J.); Ontario (Attorney General) v. 51 Taylor Avenue, 2012 ONSC 6355, aff’d 2014 ONCA 396, leave to appeal to S.C.C. ref’d [2014] S.C.C.A. No. 329.

[45] Currency may be proceeds of unlawful activity and the Attorney General can obtain a forfeiture order if the Attorney can establish by direct or circumstantial evidence that the money was acquired from crime in general: Ontario (Attorney General) v. Chatterjee, supra.

[46] Currency may be an instrument of unlawful activity because drug money can be used to purchase more drugs for resale: Ontario (Attorney General) v. Chow, supra; Ontario (Attorney General) v. $138,650 in Canada Currency (In Rem), 2012 ONSC 7230; Ontario (Attorney General) v. Jinarern, [2005] O.J. No. 6008 (S.C.J.), and Ontario (Attorney General) v. 170 Glenville Road, King (in rem), [2010] O.J. No. 2865 (S.C.J.).

[47] A respondent's failure to provide a credible explanation for a legitimate source of the property or an explanation for a lavish lifestyle without apparent source of income may be considered by the court as part of the forfeiture analysis; suspicious circumstances call for a "credible and reasonable answer": Ontario (Attorney General) v. $10,000.000 in Canadian Currency (In Rem), 2014 ONSC 944, at paras. 21 and 32; Ontario (Attorney General) v. $104,877 in U.S. Currency (In Rem), supra at para. 35; Ontario (Attorney General) v. $1,650 in Canadian Currency (In Rem), [2008] O.J. No. 2076 (S.C.J.); Ontario (Attorney General) v. $25,680 in Canadian Currency (in Rem), [2009] O.J. No. 3734 (S.C.J.).

[48] Because it is a known fact that persons involved in illegal drug activity are found carrying large sums of money from drug sales or purchases, the inference that arises when a person is found with large sums of money that the money is the proceeds of unlawful activity or the instrument of unlawful activity calls for a credible and reasonable answer: Ontario (Attorney General) v. Chatterjee, supra at para. 46; See also: Ontario (Attorney General) v. $1,650 Canadian Currency (In Rem), supra; Ontario (Attorney General) v. $42,885 in Canadian Currency (In Rem), 2012 ONSC 4843; Ontario (Attorney General) v. $10,000.00 in Canadian Currency (In Rem), supra at paras. 21 and 32; and Ontario (Attorney General) v. $138,650 in Canada Currency (In Rem), supra.

[49] In Ontario (Attorney General) v. $43,120, 2011 ONSC 3076, [2011] O.J. No. 2546 (S.C.J.), the Court considered and rejected the respondent’s claim that the money seized – bundled cash found in a gym bag in a storage locker and at his residence – was “either through working very hard and saving and/or by winning monies at local casinos”. The Court ordered forfeiture of the seized money, as there were indicators of drug trafficking involvement and no documents to support the respondent’s assertion that the money was from any legitimate business or casino winnings.

[50] The Civil Remedies Act, 2001 provides an exemption from forfeiture of property that is the proceeds of unlawful activity for a “legitimate owner.” A legitimate owner means a person who did not, directly or indirectly, acquire the property as a result of unlawful activity committed by the person, and who: (a) was the rightful owner of the property before the unlawful activity occurred and was deprived of possession or control of the property by means of the unlawful activity, (b) acquired the property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity, or (c) acquired the property from a person mentioned in (a) or (b).

[51] The Civil Remedies Act, 2001 provides an exception from forfeiture of property that is found to be an instrument of unlawful activity for a “responsible owner”. A responsible owner is one who has done all that can reasonably be done to prevent the property from being used to engage in unlawful activity.

[52] The party relying on the exceptions to forfeiture bears the burden of proving that the exception applies. See Ontario (Attorney General) v. 8477 Darlington Crescent, [2008] O.J. No. 5209 (C.A.) at para. 58; Ontario (Attorney General) v. $9,475 in Canadian Currency (In Rem), supra; Ontario (Attorney General) v. Chow, supra, at para. 33; Ontario (Attorney General) v. $9,616.98, supra at para. 6; Ontario (Attorney General) v. 170 Glenville Road, King (In Rem), supra.

[53] The “clearly not in the interests of justice” exception to a forfeiture order is narrowly construed and relief from forfeiture is very much the exception and should be granted only where the party seeking that remedy clearly makes the case that forfeiture would lead to an unequitable and unjust result; the interests of justice exception should only be granted where the party seeking relief from forfeiture has established that forfeiture would be manifestly harsh or draconian: Ontario (Attorney General) v. 8477 Darlington Crescent, supra; Ontario v. McDougall, supra at para. 84.

[54] In considering whether to grant relief from forfeiture, the court may consider, among other things: (a) the conduct of the party whose property is the subject of the forfeiture application, including knowledge or constructive knowledge of the unlawful activity, failure to take reasonable steps to prevent the unlawful activity, any profit derived knowingly or unknowingly from the unlawful activity, and any steps taken after the owner became aware of the unlawful activity; (b) the disparity between the value of the property that is proceeds of unlawful activity and the value of the property sought to be forfeited; (c) the interplay between the purposes of the Act and the exercise of the discretion to relieve from forfeiture. The list of factors is not exhaustive and whether relief from forfeiture should be granted must be determined on a case by case basis: Ontario (Attorney General) v. $51,000.00 in Canadian Currency (In Rem), 2013 ONSC 1321 at para. 41; Ontario (Attorney General) v. 20 Strike Avenue, Bowmanville, Ontario (Pin #26932-0115(LT)) (In Rem), 2013 ONSC 2130 at paras. 16-19, aff’d 2014 ONCA 395.

[55] As already noted in seeking relief from forfeiture based on the “clearly not in the interests of justice” exception to a forfeiture order, the onus is upon the party seeking relief to demonstrate that in the circumstances, the forfeiture order will be a manifestly harsh and inequitable result: Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), supra.

[56] In Ontario (Attorney General) v. 139 William Honey Crescent, Newmarket (In Rem), 2012 ONSC 442, the onus was met when Crown did not proceed with charges that were originally laid against a co-owner of a property used for a marijuana grow-op and it was shown that she did not participate in the grow operation, did not know of the operation's existence, and was not wilfully blind to its existence. Relief from forfeiture was also granted in: Ontario (Attorney General) v. 20 Strike Avenue, Bowmanville, Ontario (Pin #26932-0115(LT)) (In Rem), supra; Ontario (Attorney General) v. $51,000.00 in Canadian Currency (In Rem), supra; Ontario (Attorney General) v. 714 Railton Avenue, London, PIN #0813-0834 (LT) (In Rem), 2013 ONSC 12; Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), supra, 91, aff’d 2014 ONCA 397.

2. Mr. Wilson’s Argument

[57] Mr. Wilson’s argument was straightforward. He submitted that he was the owner of the money that he earned from his business buying and selling cars. He said he needed the money to support his family. He denied that the money was the proceeds of unlawful activity or used for the purposes of unlawful activity.

3. The Attorney General’s Argument

[58] The Attorney General’s argument was that on a balance of probabilities, the $13,900 was proceeds of unlawful activity or an instrument of unlawful activity.

[59] The Attorney General relied on the following factors: (a) the currency was bundled in a manner that is consistent with money used in unlawful activity; (b) it was reasonable to conclude that if the money had been lawfully obtained, it would have been deposited in a bank or other safe repository storage rather than hidden from disclosure and a possible freezing order; (c) Mr. Wilson did not know how much money was in the vehicle; (d) the currency consisted predominantly of $20 bills, which is the most common denomination for street-level drug dealing; (e) persons involved in lawful activity do not usually carry this volume of currency in a vehicle; (f) the presence of air fresheners and marihuana odor indicated illicit activity, notably drug transportation; (g) the vehicle had an odor of marihuana; (h) the currency was tainted by drugs - as identified by the sniffer dog; (i) drug money couriers typically transport drugs in one direction and currency in the other; (j) Mr. Wilson did not have a licence to sell vehicles; (k) Mr. Wilson was driving a car that did not belong to him while on a suspended licence and in possession of fraudulent identification; (l) Mr. Wilson owns his own vehicle and couriers often transport drugs and money in cars that do not belong to them so that the driver remains anonymous and avoids possible forfeiture of the vehicle; (m) Mr. Wilson advised that he had borrowed the car from his “uncle,” but the owner advised police that he was not related to Mr. Wilson and that he gave the car to him to sell overseas; and (o) Mr. Wilson did not have a reasonable explanation regarding the origins or purpose of the cash.

[60] It is the Attorney General’s position that Mr. Wilson cannot bring himself within the definition of a “responsible owner” because he did not do all that could reasonably be done to prevent the property from being used to engage in unlawful activity. It was also the Attorney General’s position that Mr. Wilson cannot bring himself within the definition of a “legitimate owner”.

[61] With respect to relief from forfeiture, the Attorney General submitted that there would be no disparity between the value of the subject property and the value of the money sought to be forfeited because all of the $13,900 claimed was proceeds or an instrument of unlawful activity and there was little evidence to suggest that any of it was lawfully earned or obtained. The Attorney General submitted that in light of all of the evidence, a forfeiture order would accord with the community’s sense of fairness.

D. Analysis

[62] I find that the totality of the evidence supports the Attorney General’s application for forfeiture. Moreover, Mr. Wilson has failed to persuade me on a balance of probabilities that he is either a legitimate owner or a reasonable owner. On the basis of the evidence, I am satisfied on a balance of probabilities that the cash is either proceeds of unlawful activity, an instrument of illegal activity or both within the meaning of the Civil Proceedings Act, 2001.

[63] Even if the money was not drug related and related solely to Mr. Wilson’s automobile business, it is an offence to carry on that business without being registered under the Motor Vehicles Dealers Act, 2002.

[64] I am not persuaded that the circumstances of the case at bar are such that the court should grant relief from forfeiture.

E. CONCLUSION

[65] For the above reasons, I grant the forfeiture order.

[66] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Attorney General’s submissions within 20 days of the release of these Reasons for Decision followed by Mr. Wilson’s submissions within a further 20 days.

Perell, J.

Released: April 8, 2015