ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-G30003
DATE: 2015/07/13
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
AISSA EL-ZEIN
Respondent
David McKercher and Delinda Hayton, for the Federal Crown
James Foord, for the Respondent
HEARD: June 19, 2015 (at Ottawa)
REASONS FOR decision
maranger j.
[1] The Crown applies for a forfeiture order of $39,680 seized during the execution of a search warrant at 33 Seguin Street, in the city of Ottawa. The Crown argues that the monies in question are proceeds of crime obtained by the respondent as a result of his drug trafficking business.
[2] The respondent resists the application on the basis that the monies are not proceeds of a crime; rather, he argues that the money belongs to his parents who are innocent of any complicity and/or collusion in any of the designated offences. The respondent asks the Court for an order returning the money to his parents.
Background:
[3] On September 3, 2014, the respondent, Aissa El-Zein, pled guilty to one count of committing a criminal offence for the purpose of facilitating a criminal organization, one count of conspiracy to traffic in cocaine, and one count of possession of proceeds of crime over $5000, along with several weapons offences. He was sentenced to a total of 12 years’ incarceration, less eight months and 11 days credit for pre-trial custody.
[4] At the time of his conviction, the respondent consented to the forfeiture of various items from properties located at 741 Borthwick Avenue and 1396 Ogilvie road, unit 212, both in the city of Ottawa. The forfeiture included approximately $15,000 in cash, as well as other personal property.
[5] During the course of the investigation, the police executed a search warrant at the respondent’s parents’ house, located at 33 Seguin Street in the city of Ottawa. During this search, the police located $39,680 Canadian dollars in a bedroom closet.
Evidence presented at the hearing:
[6] During the hearing, the Crown relied upon an application record containing: an agreed upon statement of facts, a copy of the forfeiture order, and the Ottawa police service’s surveillance reports. The respondent presented testimony from his parents, Salma and Ibrahim El-Zein. The thrust of the evidence was as follows:
• Project sleepwalker was a major joint forces drug investigation in the city of Ottawa. It ran from May 2010 to December 2011.
• Beginning in January 2011 and over the course of an 11 month period, the Ottawa police service observed Aissa El-Zein to be involved in the business of high level drug trafficking.
• Drug trafficking is a cash-based business.
• Aissa El-Zein was observed on a regular basis at the Ogilvie residence. The Ogilvie residence was described as a “stash house,” meaning a residence dedicated to storing drugs, money and other paraphernalia related to the drug trafficking business. Aissa El-Zein would frequently have short meetings with other known suspects at that residence.
• A search executed at the Ogilvie stash house yielded $350,000 worth of illegal drugs and guns as well as approximately $10,000 in cash.
• Aissa El-Zein was frequently seen attending his parent’s residence at 33 Seguin Street following short meetings at the Ogilvie stash house. He was sometimes seen carrying bags into his parent’s residence.
• The money that was located at 33 Seguin Street was hidden in two separate locations, both in the parents’ bedroom closet. The money was located in a purse and a wallet, hidden within a comforter.
• Salma and Ibrahim El-Zein both testified that:
o They came to Canada from Lebanon in 1981. Ibrahim worked in the pastry industry, eventually opening his own business. Salma worked from home caring for the children.
o Ibrahim was the sole income earner in the household. He gave Salma money on a weekly or monthly basis over the course of the past 33 years. She used this money for groceries and household necessities, while saving as much as she could.
o The money Salma saved was kept in her bedroom.
o The El-Zein’s lived modestly; Salma, particularly so.
o Aissa El-zein visited his parents to get his laundry done and for home cooked meals.
Analysis:
[7] There are two issues to be determined. Firstly, has the Crown established on a balance of probabilities that the monies located at 33 Seguin are proceeds of crime. Secondly, if not, should the money be ordered returned to the third-party owners, Ibrahim and Salma El-Zein.
[8] The relevant provisions in the Criminal Code, R.S.C., 1985, c. C-46, are sections 462.37(1) and (2), which read as follows:
462.37(1) subject to this section and sections 462.39 to 462.41, where an offender is convicted, or discharged under section 730, of a designated offence and the court imposing sentence on the offender, on application of the Attorney General, is satisfied, on a balance of probabilities, that any property is proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.
(2) Where the evidence does not established to the satisfaction of the court that the designated offence of which the offender is convicted, or discharged under section 730, was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that that back property is proceeds of crime, the court may make an order of forfeiture under subsection (1) in relation to that property.
[9] While I agree with the Crown that the circumstantial evidence presented can support the inference that the monies found at 33 Seguin Street are proceeds of crime derived from the respondent’s drug business, the evidence provided by Mr. and Mrs. El-Zein provides an equally compelling explanation. To accept the Crown’s position and find that the monies are proceeds of crime on a balance of probabilities would necessitate rejecting the testimony of both Mr. and Mrs. El-Zein, who are both credible witnesses.
[10] The Crown’s asserts that it is implausible in the extreme to accept that that the El-Zeins could have saved that amount of money in their financial circumstances. I disagree. It is possible for people who live modestly to slowly put aside several thousands of dollars over the course of many years. That is exactly what Salma El-Zein testified she did.
[11] Ibrahim El-Zein explained that his pastry business often involved cash and that he regularly gave cash to his wife for household expenditures. Salma testified that she put money aside on a regular basis over the course of many years. She kept her savings hidden in her bedroom closet. I have no reason to reject either Mr. or Mrs. El-Zein’s evidence.
[12] Section 462.41 (3) of the Criminal Code provides that:
Where court is satisfied that any person, other than
(a) a person who is charged with, or was convicted of, a designated offense, or
(b) a person who acquired title to or a right of possession of that property from a person referred to in paragraph (a) under circumstances that give rise to reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of property,
is the lawful owner or is lawfully entitled to possession of any property or any part thereof that would otherwise be forfeited pursuant to subsection 462.37 (1) or (2.01) or 462.38 (2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or any collusion in relation to such offence, the court may order that the property or part thereof be returned to that person.
[13] I am satisfied on a balance of probabilities that Salma and Ibrahim El-Zein are the lawful owners of the money found in the bedroom of their home, located at 33 Seguin Street. I am also satisfied that they are innocent of any complicity or collusion in any of the respondent’s designated offences. Therefore, I am hereby ordering that the $39,680 found at 33 Seguin Street be returned to Salma and Ibrahim El-Zein.
Maranger J.
Released: July 13, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
AISSA EL-ZEIN
Respondent
REASONS FOR decision
Maranger J.
Released: July 13, 2015