SUPERIOR COURT OF JUSTICE

(TORONTO REGION)

COURT FILE NO.: CR-15-90000109-00MO
DATE: 20151229

In the matter of an Application by the Attorney General of Canada for forfeiture of offence-related property and/or for forfeiture of proceeds of crime

In the matter of an Order of Forfeiture in respect of, inter alia, property known as 140 River Beach Drive, Niagara on the Lake, Ontario dated November 20, 2014

And in the matter of an Application by Jordyn Fletcher for an Order declaring that he has an interest in the amount of $150,000.00 in the property known as 140 River Beach Drive, Niagara on the Lake, Ontario which is unaffected by, or exempted from the aforesaid Order of Forfeiture

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

JORDYN FLETCHER
Applicant

Christopher Walsh, for the Respondent

Carolyne Kerr, for the Applicant

HEARD: November 9, 10, 12 and 13, 2015

REASONS FOR DECISION

J. MACDONALD, J.

[1] The lands and premises known as 140 River Beach Drive, Niagara on the Lake, Ontario (“the property”) which were owned by Tawnya Fletcher, the applicant’s sister, were ordered forfeited to the respondent pursuant to the Criminal Code[^1] and the Controlled Drugs and Substances Act[^2] (“the CDSA”) as a result of her conviction for a criminal offence. The applicant claims an interest in the property and requests an order declaring that his interest is exempt from the forfeiture order. He states that he is an equitable mortgagee or that his interest is subject to a constructive trust. In addition, the applicant submits that he is innocent of any complicity in or collusion in relation to the criminal offences which resulted in the forfeiture order.

[2] I conclude that the applicant has not had an interest in the forfeited property at any time and that, on the balance of probabilities, he appears innocent of any complicity or collusion. My reasons are as follows.

Background Facts

[3] Tawnya Fletcher (hereinafter “Tawnya”) purchased the property on January 31, 2012 for $395,000.00. The applicant lent her $150,000.00 of the purchase price. He made his certified cheque in this amount payable to her real estate lawyer, in trust. The lawyer’s trust ledger statement establishes that these monies were paid to the vendor on closing. His reporting letter establishes that title to the property was taken solely in Tawnya’s name. The respondent concedes that the $150,000.00 which was loaned by the applicant was neither offence-related nor the proceeds of crime in his hands.

[4] It is common ground that the property was not subject to a mortgage or charge in favour of the applicant in respect of his loan to Tawnya.

[5] On September 8, 2014, Tawnya pleaded guilty to one count of conspiracy to traffic in cocaine in Niagara on the Lake, Ontario, and elsewhere between January 1, 2012 and May 23, 2012. She was sentenced to two years incarceration, after credit for pre-sentencing detention and bail terms. One of her co-conspirators was Nick Nero. He pleaded guilty to conspiracy to import cocaine, two counts of conspiracy to traffic cocaine, possession of a controlled substance for the purpose of trafficking and possession of the proceeds of crime. He was sentenced to 21 years eight months incarceration after credit.

[6] Tawnya and Nick Nero lived together in the home on the property. The various conspiracies were carried into effect from there, primarily by him but with some assistance from her.

[7] On November 20, 2014, the property was ordered forfeited as both offence-related property and as proceeds of crime. The property was ordered forfeited on the basis that both Tawnya and Nick Nero had been convicted of offences.

[8] Tawnya has not repaid the borrowed monies to the applicant.

The Criminal Code Provisions in Respect of Forfeiture and Relief from Forfeiture

[9] Section 2 defines “offence-related property” and “property”. There is no issue that the property is “offence-related property”.

[10] Section 462.3 defines “designated offence” and “proceeds of crime”. There is no issue that conspiracy to traffic in cocaine is a designated offence and that the property is “proceeds of crime”.

[11] Section 462.37 provides for the forfeiture of property which is proceeds of crime, where the designated offence is committed in relation to that property. Section 462.42 provides for an application by a person who claims “an interest” in forfeited property. Subsection (1) excludes various categories of people from claiming. The respondent accepts that the applicant is not excluded from claiming. Subsection (4) states that where the applicant appears innocent of any complicity in any designated offence that resulted in the forfeiture or of any collusion in relation to any such offence, the judge may relieve against the forfeiture.

[12] Section 490.1 provides for the forfeiture of offence-related property where the offence was committed in relation to that property. Section 490.5 provides for an application by a person who claims “an interest” in forfeited offence-related property. Subsection (1) excludes various categories of people from claiming. The respondent accepts that the applicant is not excluded from claiming. Subsection (4) states that where the applicant appears innocent of any complicity in any indictable offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, subject to a qualification in section 490.5(4)(b) which does apply herein, the judge may relieve against the forfeiture.

The Controlled Drugs and Substances Act Provisions in Respect of Forfeiture and Relief from Forfeiture

[13] Section 2 defines “designated substance offence”. There is no issue that conspiracy to traffic in cocaine is a designated substance offence.

[14] Section 16(1) provides for the forfeiture of offence-related property where the offence was committed in relation to that property, subject to exceptions which do not apply herein. Section 20 provides for an application by a person who claims “an interest” in forfeited property. Subsection (1) excludes various categories of people from claiming. The respondent accepts that the applicant is not excluded from claiming. Subsection (4) states that where the applicant appears innocent of any complicity in any designated substance offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, subject to a qualification in section 20(4)(b) which does not apply herein, the judge may relieve against the forfeiture.

Issues

[15] The forfeiture order was based upon all of the aforesaid forfeiture sections. This application was argued on the basis that all of the aforesaid sections permitting relief from forfeiture apply, and that the issues to be determined are:

1. does the applicant have an interest in the property, and

2. does the applicant appear innocent of any complicity in the offences committed by Tawnya and Nick Nero which resulted in forfeiture of the property, or of any collusion in relation to any such offences?

It is agreed that the applicant bears the burden of proof and that the standard of proof is on the balance of probabilities.

Issue 1: Does the Applicant have an Interest in the Property?

[16] The evidence is clear that only Tawnya owned the property. There is no evidence that the applicant was a part owner. To the contrary, the applicant’s evidence is that he lent the money to Tawnya so that she could purchase the property. He knew that she “would be the owner”. I find that the applicant did not have any ownership interest in the property at any time.

[17] The evidence is also clear and it is not in issue that the applicant did not take back a mortgage or charge on the property in respect of his loan, and I so find.

1(a) Equitable Mortgage

[18] The applicant asserts that he had an equitable mortgage in the property. An equitable mortgage may be created by an agreement to give a mortgage or to charge a property for a debt. See Rooker v. Hoofstetter (1896) 1896 5 (SCC), 26 S.C.R. 41. An equitable mortgage creates a charge on the property but does not transfer the legal estate in the property to the equitable mortgagee. See Re Elias Markets Ltd. (2006), 2006 31904 (ON CA), 274 D.L.R (4th) 166 (O.C.A.). An essential feature of an equitable mortgage is a common intention that the property be made security for a debt. See Sikorski v. Sikorski (1978), 1978 1448 (ON SC), 89 D.L.R. (3d) 411 (Ont. H.C.J.), Royal Bank of Canada v. Grobman (1977), 1977 1113 (ON SC), 83 D.L.R. (3d) 415 (Ont. H.C.J.) and Royal Bank of Canada v. Mesa Estates Ltd. (1985), 1985 336 (BC CA), 23 D.L.R. (4th) 753 (B.C.C.A.).

[19] I therefore turn to the loan arrangements to see what was intended and agreed.

[20] The applicant gave evidence by means of affidavit and testimony about the loan arrangements. Tawnya did not give evidence. The applicant’s evidence is that Tawnya asked to borrow $150,000.00 from him for up to six months. He felt confident that she would repay the loan because he and Tawnya had always trusted each other and he knew that she had sufficient monies to repay him in her savings and investments from the family. He understood that she wanted the loan because she did not want to liquidate investments at that time, for financial reasons. The applicant testified that he “did not seek a secured interest in the property” because he trusted her. He also thought that, because her lawyer was handling the purchase transaction, his “loan was secure and documented for the purchase of the townhouse”.

[21] I find the facts to be as follows. The applicant’s familial relationship with his sister, their mutual trust, his knowledge that she had the means of repaying him and the involvement of her lawyer in documenting the purchase of the property meant that the applicant did not seek to have his loan secured by an interest in the property which Tawnya was acquiring. These factors also meant that the loan and its repayment provision lacked other features of arm’s length commercial loans. There was no written agreement, no fixed repayment date and no obligation to pay interest.

[22] The fact that the applicant did not seek to have his loan secured by an interest in the property proves that he had no intention of having that security in respect of his loan.

[23] The applicant’s testimony that Tawnya gave him only an oral promise to repay the loan is some evidence that she also had no such intention, and I so find.

[24] I therefore find that the applicant and Tawnya did not have the common intention that the property be security for his loan to her. Consequently, the property was not subject to an equitable mortgage in favour of the applicant in respect of Tawnya’s debt to him in the amount of $150,000.00.

[25] It is therefore clear that, at the time Tawnya acquired the property, at the times when her criminal conduct occurred and at the time of the forfeiture order, the applicant did not have any ownership interest, mortgage or equitable mortgage in, or charge on the property in issue.

1(b) Resulting Trust

[26] The applicant does not seek relief on the basis of a resulting trust. I note that, while it is well established in law that the trust of a legal estate “results” to the person who advances the purchase money[^3], here the fact is that the applicant did not advance the purchase money. The applicant loaned to Tawnya part of her purchase money. I find that the loaned money was Tawnya’s money when she advanced it to the vendor because both the applicant and Tawnya intended that title to the property and thus ownership of it, even though purchased in part with the loaned money, would belong solely and exclusively to Tawnya.

1(c) Constructive Trust

[27] The applicant asks the Court to impose a remedial constructive trust on the property. This would mean that the respondent is not entitled to the full value of the forfeited property and, having taken it, the respondent would be obliged to pay $150,000.00 to the applicant. The relevant facts are as found in the preceding paragraphs.

[28] The principle of unjust enrichment is at the heart of the constructive trust concept. See Pettkus v. Becker 1980 22 (SCC), [1980] 2 S.C.R. 834, Peel (Regional Municipality) v. Canada 1992 21 (SCC), [1992] 3 S.C.R. 762 and Kerr v. Baranow (supra).

[29] Constructive trusts may also be imposed when unjust enrichment is not in issue. In Soulos v. Korkontzilas 1997 346 (SCC), [1997] 2 S.C.R. 217 the Court held that a constructive trust should be imposed to hold persons to high standards of trust and probity and to prevent them from retaining property which, in good conscience, they should not be permitted to retain. Under the good conscience concept, a constructive trust may be imposed for wrongful acts like fraud and breach of duty of loyalty.

[30] The applicant relies on these principles in addition to unjust enrichment. In my opinion, the case at bar raises only unjust enrichment issues and does not present any issue of holding the respondent to a high standard of trust and probity, or of monies which good conscience requires the respondent to return. This is because the forfeiture process was implemented by the respondent on the authority of the Criminal Code and the CDSA, in which Parliament stated that forfeiture shall be ordered when the conditions of the aforesaid sections of each statute are met. Further, the forfeiture itself was not effected by the respondent but by means of a Court order made pursuant to the aforesaid statutes’ provisions.

[31] Consequently, the respondent cannot be said to have acted improperly in exercising a right to claim forfeiture pursuant to one or more statutes, in seeking a Court order effecting forfeiture or in acting upon the forfeiture order. Good conscience does not require the respondent to give up what Parliament intended it to have and the Court held that it is entitled to have.

[32] While a number of important constructive trust decisions have been in the area of domestic relations, it is the general principles of equity which apply to constructive trusts and to the related concept of unjust enrichment. See Kerr v. Baranow (supra) at paragraphs 31-34. As stated by Cromwell J. for the Court in the Kerr decision at paragraph 32, Canadian law permits recovery for unjust enrichment where the plaintiff can establish three elements:

a) an enrichment of, or benefit to the defendant,

b) a corresponding deprivation of the plaintiff, and

c) the absence of a juristic reason for the enrichment.

[33] At paragraphs 36-38, Cromwell J. describes the first element as concerning whether the defendant has been enriched by the plaintiff. The plaintiff must show that he or she gave something to the defendant which the defendant received or retained and which has enriched the defendant, and which can be restored to the plaintiff in specie or in money.

[34] Cromwell J. describes the second element at paragraph 39 as follows “…the second requirement obligates the plaintiff to establish not simply that the defendant has been enriched, but also that the enrichment corresponds to a deprivation which the plaintiff has suffered”.

[35] Cromwell J. addressed the third element in non-domestic cases in paragraphs 40-41 as follows:

[40] The third element of an unjust enrichment claim is that the benefit and corresponding detriment must have occurred without a juristic reason. To put it simply, this means that there is no reason in law or justice for the defendant’s retention of the benefit conferred by the plaintiff, making its retention “unjust” in the circumstances of the case: see Pettkus, at p. 848; Rathwell, at p. 456; Sorochan, at p. 44; Peter, at p. 987; Peel, at pp. 784 and 788; Garland, at para. 30.[^4]

[41] Juristic reasons to deny recovery may be the intention to make a gift (referred to as a “donative intent”), a contract, or a disposition of law (Peter, at pp. 990-91; Garland, at para. 44; Rathwell, at p. 455). The latter category generally includes circumstances where the enrichment of the defendant at the plaintiff’s expense is required by law, such as where a valid statute denies recovery (P. D. Maddaugh and J. D. McCamus, The Law of Restitution (1990), at p. 46; Reference re Goods and Services Tax, 1992 69 (SCC), [1992] 2 S.C.R. 445; Mack v. Canada (Attorney General) (2002), 60 O.R. (3d) 737 (C.A.)). However, just as the Court has resisted a purely categorical approach to unjust enrichment claims, it has also refused to limit juristic reasons to a closed list. This third stage of the unjust enrichment analysis provides for due consideration of the autonomy of the parties, including factors such as “the legitimate expectation of the parties, the right of parties to order their affairs by contract” (Peel, at p. 803).

[36] The Court has established a two-step analysis for the absence of juristic reason which Cromwell J. describes in paragraph 43. The first step applies to the established categories of juristic reasons, including a contract, a disposition of law, a donative intent and other valid common law, equitable or statutory obligations. The second step applies to cases which fall outside the existing categories. In my opinion, this case is within an established category because the loan arrangements were contractual and the forfeiture was a disposition pursuant to statutory obligations.

[37] In respect of the first element, the respondent has been enriched by the value of the property forfeited to it. But it was not the applicant whose property was forfeited to the respondent. The monies which the applicant loaned to Tawnya were Tawnya’s monies when paid by her to the vendor because these monies were intended by both of them to enable Tawnya to acquire ownership of the property exclusive of the applicant, as she did. At all times herein including at the time of the forfeiture order, the property, including the value or “equity” therein purchased with the borrowed $150,000.00, was Tawnya’s property, not the applicant’s.

[38] In respect of the second element, the enrichment of the respondent as aforesaid does not correspond to a deprivation borne by the applicant. The applicant has not been deprived of anything by the forfeiture order. It is Tawnya alone who has been deprived. The applicant loaned her the monies and received her personal promise of repayment. That personal promise was not forfeited. It remains in existence although not performed, and is fully capable of being enforced if the applicant should choose to do so. Tawnya has been and is fully capable of repaying the loan at any time, I find.

[39] The applicant relies on R. v. 1431633 Ont. Inc. (2010) 2010 ONSC 266, 250 C.C.C. (3d) 354 (O.S.C.J.), per Molloy J. In that case, the applicant, a building supply company, supplied lumber to a customer to build a house on the property in issue, and was not paid for it. The applicant filed a builder’s lien against the property which, Molloy J. held, should be treated as valid. The customer was convicted of drug offences and the property was forfeited to the Crown. Molloy J. held that the applicant’s lien gave it an interest in the property and consequently, it was entitled to relief from forfeiture. In addition, she reasoned in part (at paragraphs 62 and 63) that the applicant’s lumber for which it had not been paid was used to build the house which the Crown had seized and as a result, the Crown obtained the benefit or value of the applicant’s lumber.

[40] In my opinion, the facts in that case are quite different. There, in addition to a lien interest in the property, the property forfeited to the Crown was comprised in part of the property of the applicant, being the lumber for which it hadn’t been paid and with which the house in issue was built. Consequently, there was an enrichment of the Crown and a corresponding deprivation of the applicant. Here, in addition to the absence of any lien-like interest, the value or “equity” in the forfeited property arising from the loaned monies belonged solely to Tawnya and not to the applicant, for the reasons given.

[41] The third criterion is the absence of juristic reason for the enrichment. In my opinion, there are strong juristic reasons which support what transpired in this case. As the aforesaid sections of both the Criminal Code and the CDSA demonstrate, Parliament intended that both offence-related property and proceeds of crime shall be forfeited to the Crown. That is what the Court ordered, having determined that Tawnya’s property was offence-related property and also proceeds of crime.[^5] In the circumstances of this case, the forfeiture order accomplished exactly what Parliament intended to happen.

[42] From the applicant’s perspective, having no ownership interest in the property, having decided not to obtain a security interest in the property being acquired in part by means of his loan to Tawnya and having accepted her personal promise of repayment as his sole means of obtaining repayment, the applicant is merely Tawnya’s unsecured creditor.

[43] If the applicant is given the benefit of a remedial constructive trust, his position would be improved beyond that for which he bargained. He would become the equivalent of a creditor whose loan is secured by an interest in the property and who is entitled to payment from the value or “equity” in the property which his debtor has forfeited to the Crown.

[44] From Tawnya’s perspective, if the applicant is given the benefit of a remedial constructive trust, her position would also be improved. Her personal debt to the applicant would be repaid out of the value or “equity” in the property formerly owned by her, which she has forfeited to the Crown. Her remaining assets and investments would thereby be protected from diminution for the purpose of repaying the applicant. Tawnya would derive two benefits: her statutory liability to forfeit her interest in the property would be defeated in part and her personal, unforfeited assets would be protected.

[45] In Lumen Inc. v. Canada (1997) 1997 10717 (QC CA), 119 C.C.C. (3d) 91 (Que. C.A.) Fish J.A. (as he then was) for the Court held at paragraphs 22-25 that, as a general rule, ordinary creditors do not have an enforceable interest in any particular asset of their debtors. In principle, they enjoy no right of recourse in relation to a particular asset. No reason was apparent for giving ordinary creditors a better position when the asset against which they sought to satisfy their claim was proceeds of crime. Parliament had expressly provided for forfeiture of that property as a means of ensuring that offenders derive no benefit from their crimes. Reducing the general indebtedness of offenders out of the fruits of their crimes would have precisely the opposite effect.

[46] In my opinion, there is also no reason for giving ordinary creditors a position which is better than their general position when the asset against which they seek to satisfy their claim is offence-related property. Parliament has also provided expressly for forfeiture of that property as a means of ensuring that offenders lose the benefit of such property. In addition, I am of the opinion that these principles apply to all of the provisions of the Criminal Code and the CDSA which permit a Court to grant relief from forfeiture in the circumstances under consideration.

[47] There is an element of discretion in determining whether a remedial constructive trust should be granted. In my opinion, in the circumstances of this case, the imposition of a remedial constructive trust is neither justified nor appropriate. The applicant has not established his entitlement to this remedy.

[48] Consequently, I find that the applicant is simply Tawnya’s unsecured creditor and he has not had an interest in the property at any time.

[49] This is sufficient to dismiss the application. Nonetheless, I will address the issue of the applicant’s alleged complicity in or collusion in relation to the offences by Tawnya and Nick Nero which led to forfeiture of the property.

Issue 2: Complicity and Collusion

[50] The applicant was charged together with Tawnya and Nick Nero with possession of cocaine for the purposes of trafficking and conspiracy to possess cocaine for the purposes of trafficking. The Crown proceeded to a Preliminary Inquiry on the count of possession for the purposes of trafficking. The applicant was discharged on that count and the Crown then withdrew the conspiracy count. The evidence presented against the applicant at the Preliminary Inquiry was substantially the same as the evidence presented in this Application in relation to the complicity and collusion issues.

2(a) Issue Estoppel

[51] In R. v. Mahalingan 2008 SCC 63, [2008] 3 S.C.R. 316, the Court held at paragraph 26 that, in criminal cases, issue estoppel prevents the Crown from leading evidence inconsistent with findings made previously. In Schweneke v. Ontario (2000), 2000 5655 (ON CA), 47 O.R. (3d) 97 (O.C.A.); lv. to app. ref’d. [2000] S.C.C.A. No. 168, the Court of Appeal held at pages 106-7 that discharge at a Preliminary Inquiry does not give rise to issue estoppel in relation to a subsequent civil proceeding. This is because a Preliminary Inquiry judge does not make findings of fact. The judge simply applies the “sufficient evidence” test.

[52] In my opinion, the same result is appropriate in this Application: the Preliminary Inquiry judge did not make findings so issue estoppel does not arise from the applicant’s discharge.

[53] I must therefore determine the issues of complicity and collusion without regard for the charges against the applicant, the result of the Preliminary Inquiry or the Crown’s decision to withdraw the conspiracy count.

2(b) The Evidence in Respect of Complicity and Collusion

[54] The applicant denies knowledge of, complicity in and collusion in relation to the offences in issue. The evidence presented by the respondent and addressed by the applicant is of several types:

a) approximately 110 kilograms of cocaine was seized in a rental storage unit owned by Gorge Holdings Limited, of which the applicant is president;

b) police observations of the applicant when he drove by the aforesaid storage unit and was stopped by police, after the unit had been secured by police, and other conduct of the applicant thereafter;

c) extracts of intercepted conversations involving the applicant, Tawnya and Nick Nero.

[55] There is no issue that Gorge Holdings Limited owned the storage unit and that the applicant is president of Gorge. The applicant testified that the unit was one of a number of rental units. He gave the key to an apparently reputable local businessman who wanted to see the unit in order to decide whether to rent it for business purposes. The applicant testified that he did not know that this person was involved with cocaine.

[56] The applicant also testified that Gorge Holdings Limited had its head office very close to the storage unit. He left the office to drive to the bank for business purposes and took his usual route, which led from his parking spot through the courtyard in front of the storage unit in issue. He saw the police in proximity to Gorge’s rental units and they stopped him. The police evidence is that the applicant looked shocked, nervous and his hands were shaking. There are some minor disputes about what was said or not said. I am satisfied by the applicant’s evidence that he was concerned to know what was going on with Gorge’s property. I am not satisfied that any observed stress when the applicant was stopped and questioned by police is evidence:

a) that the applicant knew of the cocaine in the rental storage unit,

b) of the applicant’s complicity or collusion in any of the offenders’ conduct in relation to that cocaine, or

c) of the applicant’s complicity or collusion in relation to any possession of, or conspiracy to import or possess cocaine generally.

The police impressions of the applicant’s reactions are a relatively weak basis upon which to draw any inference of complicity or collusion.

[57] Following those observations of the applicant, the police evidence is that he was not cooperative with them in their investigations. The respondent relies on that in seeking an inference of his complicity or collusion.

[58] There was extensive interception of communications in this investigation. In those communications involving the applicant, there is no explicit statement by him which shows him to have been complicit, or in collusion with others in the criminal conduct in issue. Some of his comments cause suspicion, but the applicant has given plausible explanations for almost all of these.

[59] One intercepted conversation between the applicant and Nick Nero is very suspicious. On May 10, 2012, the applicant and Nick Nero were driving in a motor vehicle. Nick Nero spoke of his loss of $4 million, which was, I find, a reference to the 110 kilograms of cocaine seized earlier from the rental storage unit. The applicant acknowledged that and did not request an explanation of what Nick Nero was mentioning. When Nick Nero mentioned names of people who were, I find, part of the cocaine conspiracy or conspiracies, the applicant did not ask who they were. Then, the following was said:

Applicant: …so tell me you’re gonna soon, you’re gonna start making some dough?

Nick Nero: What do you mean?

Applicant: It’s coming again?

Nick Nero: Yeah. I already started.

[60] The applicant testified that he didn’t understand this to be a conversation about a drug deal from Mexico. He did not understand Nick Nero to have involvement in the cocaine trade. He didn’t understand Nick Nero’s reference to his loss of $4 million to refer to the cocaine trade.

[61] My conclusions are as follows. While there are suspicions about the applicant, particularly as a result of the intercepted communications mentioned above, the most powerful and persuasive evidence is this. Nick Nero was at the centre of the drug conspiracies. He communicated with numerous co-conspirators by means of a PGP encrypted cell phone. The police accessed the encrypted contents of Nick Nero’s cell phone and obtained detailed evidence of the co-conspirator’s communications. The applicant has put transcriptions of these communications into evidence. There is no indication in any of these encrypted communications that the applicant had any involvement in the criminal activities in issue. The applicant’s evidence that he did not have a PGP encrypted phone is not contradicted.

[62] On the whole of the evidence, I find on the balance of probabilities that the applicant appears innocent of any complicity in, or collusion in relation to the criminal offences by Tawnya or Nick Nero which led to forfeiture of the property.

Conclusion

[63] The applicant has not had an interest in the forfeited property at any time.

[64] The application is dismissed.

Dated at Toronto, this 29th day of December, 2015.

Mr. Justice John Macdonald

COURT FILE NO.: CR-15-90000109-00MO
DATE: 20151229

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

JORDYN FLETCHER
Applicant

REASONS FOR JUDGMENT

Mr. Justice John Macondald

Released: December 29, 2015

[^1]: R.S.C. 1985, c. C-46 as amended
[^2]: S.C. 1996, c 19 as amended
[^3]: Dyer v. Dyer (1788), 2 Cox Eq. Cas. 92, 30 ER 42 at page 43, cited with approval in Kerr v. Baranow 2011 SCC 10 at paragraph 12.
[^4]: Pettkus v. Becker; Rathwell v. Rathwell; Sorochan v. Sorochan; Peter v. Beblow; Peel (Regional Municipality) v. Canada; Garland v. Consumers’ Gas Co.
[^5]: To the extent that Nick Nero may have had an interest in the property, that interest was also ordered forfeited.