Attorney General of Ontario v. 108 Fred Young Drive, Toronto (In Rem), 2016 ONSC 2033

2016 ONSC 2033

COURT FILE NO.: CV-13-4986139

DATE: 2016040422

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ATTORNEY GENERAL OF ONTARIO

Applicant

– and –

108 FRED YOUNG DRIVE, TORONTO (IN REM)

Respondent

Rosalyn Train, for the Applicant

Joseph Figliomeni and Kim Schofield, for Trang Thi Dang

HEARD: February 18, 2016

FAIETA, j

REASONS FOR DECISION

INTRODUCTION

[1] The Applicant, the Attorney General for Ontario, seeks a forfeiture Order under the Civil Remedies Act, 2001, S.O. 2001, c. 28 (“Act”) in respect of property that it submits is (1) “proceeds of unlawful activity”; and (2) “an instrument of unlawful activity.” The land is municipally known as 108 Fred Young Drive, Toronto (“Property”) and is owned by Trang Thi Dang (“Trang”).

[2] Trang disputes the Attorney General’s assertions. Further, Trang submits that the Property should not be forfeited to the Crown because: (1) it clearly would not be in the interests of justice to do so; and (2) she is a “legitimate owner” and a “responsible owner” of the Property and, as such, her interest in the Property should be protected.

[3] With the consent of the Attorney General, the Property was sold on January 6, 2014. The sum of $316,199.00, which represents the net proceeds of sale of the Property, is being held by the Accountant of the Ontario Superior Court of Justice pending the final determination of this Application.

[4] For the reasons described below, I have granted the Attorney General’s Application.

BACKGROUND

[5] Trang was born in 1987 in Vietnam. She is the youngest of three children. Her father died in 1988 in Vietnam. Trang believes that her father owned a shipment company in Vietnam. After her father died, Trang, her mother, Chi Thi Bui (“Bui”), and brothers, Van Truong Dang (“Truong”) born in 1982 and Van Chung Dang born in 1983 (“Chung”), lived in a refugee camp in Hong Kong until 1996.

[6] Trang and her family (namely, Bui, Truong and Chung) emigrated to Canada in 1996. They lived in Hamilton, Ontario.

[7] In 2003 Trang and her family moved to Toronto. In August 2003, Bui and Truong bought a convenience store property located at 1541 O’Connor Drive, Toronto (“convenience store”) for a price of $302,000.00. Bui and Troung obtained a mortgage of $151,000.00 to finance this purchase. Trang and her family lived in the apartment above the store. Trang worked in her mother’s store for three years until it was sold in 2007. Trang stated that while her mother was living in Toronto, she worked a nail salon and picked worms at night.

[8] Bui has held various jobs. She worked in a nail salon for three years. From 2003 to 2006, she ran a convenience store. From 2006 to 2013, she worked on a vegetable farm until she was terminated because she was too slow. On cross-examination, Trang could not recall how long her mother had worked on this farm, the name of the farm, where it was located or how much she earned. Subsequently, Bui worked again as a nail salon technician.

[9] Chung graduated from a high school in Hamilton, Ontario in 2001. He has worked various factory and construction jobs since emigrating to Canada in 1996. At the time of his arrest in April 2013, Chung had a Grade 12 education and was unemployed.[^1]

[10] There was no evidence provided regarding Truong’s post-secondary education or work history.

Trang’s Education and Work History

[11] Trang received a Bachelor of Fine Arts degree from the Ontario College of Art and Design (“OCAD”) in June 2009 and a Bachelor of Education degree from the University of Western Ontario in June, 2010. Trang was granted the designation of an Ontario Certified Teacher by The Council of the Ontario College of Teachers in July 2010.

[12] By letter dated December 15, 2015, counsel for Trang provided the following information regarding Trang’s work history albeit without any indication of the income that she earned at these jobs:

• Eastlea Security & Show Services Inc (2005)

• Espirit Canada Retail Limited (2006)

• Home Depot of Canada Inc. (2007)

• LOLART Enjoy Education Inc (2006-2008)

• Creative Kids Place Inc. (2012-2013)

• Yes I Can Nursery School of Toronto (2012, 2013)

• Top Nails (2012-2013)

• Yorkstar Rehabilitation Centre Inc. (2013)

• Venus Nails (2013)

[13] During the cross-examination on Trang’s affidavit held on August 17, 2015, Trang stated that she taught art at LOLART in Toronto from about 2006 until 2012 or 2013. She was paid about $17 per hour and worked about 20 hours per week. Trang then worked at a daycare centre in Toronto for about one year. She earned $18 per hour. During that time, she worked a few hours on the weekend as an art instructor earning $16-$17 per hour. She also worked as a cashier at Home Depot earning about minimum wage for one summer while attending OCAD. She also worked at a clothing store in Toronto earning about minimum wage when she was 18 for about one or two years on a part-time basis during the school year and on a full time basis during the summer. She also worked at a nail salon in Toronto and earned about $2,000-$2,500 per month.

[14] Trang stated that she had always lived with her mother and Chung until the house was sold.[^2] Trang states that her brother Truong lived with her mother and Chung. Trang worked as an elementary school teacher in England from September 2010 to June 2012 but returned for one month during the summer of 2011. She worked five days a week as a supply teacher. She earned 125 pounds per day. She states that her total expenses were 500 pounds per month.

[15] Trang travelled to Vietnam four times at ages 18, 19, 20 and 27. She has also travelled to Paris, Cancun and India.[^3]

[16] Trang purchased a 2012 Toyota Corolla in 2012. The registered address associated with the plate for her automobile was 40 Cresswell Crescent, Brampton, Ontario. She refused to answer how much she paid for it or explain whether she financed the purchase of this automobile.

[17] Although Trang has never been charged with a criminal offence, both Bui and Trang have been convicted of a criminal offence.

Possession of Marihuana for the purpose of trafficking – May 2003

[18] On May 8, 2003 Peel Regional Police conducted an investigation of a suspected Marihuana grow operation located at 3382 Pintail Circle, Mississauga. Bui and Chung were seen exiting the address. A search warrant was obtained for this address and executed on the same date. Police found 137 Marihuana plants in the vegetative state of growth and 180 baby Marihuana plants inside, for a total of 317 plants. Police estimated that these plants had a total street value of $355,040.00 at that time. Bui and Chung were arrested and charged by Peel Regional Police Serve for the offences of possession of a scheduled substance for the purpose of trafficking and for producing a scheduled substance.[^4]

[19] As a result of the above investigation, on June 21, 2004 Bui was convicted of an offence under subsection 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”) which provides that “[n]o person shall, for the purpose of trafficking, possess a substance included in Schedule I, II, III or IV”. A second charge, produce a scheduled substance, was withdrawn. Bui was given a 6 month conditional sentence order and a mandatory prohibition order under section 109 of the Criminal Code. The charges against Chung were withdrawn.

Purchase of the Property – September 2007

[20] Bui agreed to buy the Property from its builder, Oakdale Village Homes Inc., for $654,900.00 by agreement dated February 27, 2006. It is a four bedroom house. The Agreement required Bui to pay a deposit of $10,000.00 on each of May 30, 2006, August 30, 2006 and October 30, 2006. The Agreement was amended on July 24, 2007 to add Truong and Trang as purchasers. By letter dated September 5, 2007 the solicitor for Bui, Truong and Trang advised the solicitor for the vendor that only Truong and Trang would take title to the Property.

[21] Trang and Truong purchased the Property on September 26, 2007 for the sum of $620,155.15 plus land transfer tax of $7,878.10. This purchase was partially financed by a mortgage of $350,000 from the CIBC. However, on her cross-examination, Trang testified that she thought that this mortgage financed 80% of the purchase price.[^5] Trang testified that neither Bui, Truong or Chung contributed any money towards the purchase of the Property.[^6] CIBC’s file for this mortgage shows three pay stubs. The first pay stub from Home Depot issued to Trang in the gross amount of $470.92 for the two week period ending June 30, 2007. It shows that she was being paid $8.75 per hour and that her gross pay for the year at that point was $2,686.78. The other two pay stubs are issued to Truong by Toyota on Front. They show that he was being paid $15.25 per hour. His gross pay for the period ending June 15, 2007 was $1,458.75 and for the period ending June 30, 2007 was $1,128.51. There is nothing in the file produced by CIBC which shows that other collateral or a guarantee was given as security for this mortgage.[^7]

[22] Trang states that the money to purchase the Property came from the inheritance of about $200,000 left for her by her father in an unknown bank located in Vietnam.[^8] Trang states that Bui told her that Trang was the sole beneficiary of her father’s inheritance because according to Vietnamese tradition it is believed that a son will be able to care for himself later in life while a daughter may not be able to do so.[^9] Trang states that unknown family members and friends going back and forth between Vietnam to Canada over the years would withdraw “a few thousand here and there” from the bank and incrementally bring the inheritance money to Canada.[^10] Trang states that this money was slowly accumulated and “we bought properties” rather than “leave the money there”.[^11]

[23] The first property was a residential condominium that was purchased by her mother, Bui, at a price of about $200,000. Bui rented out this property. The second property purchased with her father’s inheritance was the convenience store. The building was owned by Bui and Truong. Trang testified that “we sold both properties, and then put the money into 108 Fred Young Drive.”[^12] The convenience store property was sold for $315,000.00 on November 23, 2006. It appears that the net proceeds of this sale were placed in a one year money market GIC issued by the TD Mortgage Corporation on December 6, 2006 to Trang and Truong in the amount of $183,960.17.[^13]

[24] The payments on the CIBC mortgage were $2,000 per month. These payments were made from her CIBC bank account. Her mother Bui and her brother Chung helped her with these monthly payments.[^14] Trang testified that her brother Chung paid her $500 per month towards household expenses, including the mortgage payment.

[25] Trang lived at the Property from the time of its purchase in 2007 until the date of the execution of the search warrant in April 2013, other than for the two year period that she lived in England between September 2010 and June 2012.

Possession of Marihuana for the purpose of trafficking – October 2007

[26] On October 25, 2007 five garbage bags that contained a total of about 23 kg of dry Marihuana were seized from a vehicle that had left the address of 25 Ashfield Drive, Toronto. A search warrant was executed. About 59 kg of dry Marihuana in half pound bags were found in three large hockey bags in the basement of a house at 25 Ashfield Drive, Toronto. Bui was charged with two counts of possession for the purpose of trafficking Marihuana. On July 29, 2009 a stay of proceedings was granted.

Possession of Marihuana – April 2008

[27] On April 29, 2008, About 224 grams (about ½ pound) of Marihuana was found in the backseat of an automobile that Truong had been driving. On June 29, 2009 Truong was convicted of possession of Marihuana contrary to s. 4(4) of the CDSA. He received a $1,000 fine.

Transfer of Property – December 2009

[28] Truong transferred his interest in the Property to Bui’s niece, Xoan Thi Nguyen (“Xoan”) on August 21, 2009. Trang testified that Xoan never lived at the Property.[^15] In turn, Xoan Thi Nguyen transferred her interest to Trang on December 22, 2009 for $0. At this time the CIBC mortgage of $350,000 was discharged by the amount of $323,366.35. It was replaced by a new mortgage in the amount of $660,000 that was registered in favour of HSBC. However, HSBC only advanced $430,000.00 to Trang. The amount of the monthly mortgage payment on this HSBC mortgage was $1,643.66.

Statement of Real Estate Rentals - 2011

[29] A Statement of Real Estate Rentals in respect of the Property was provided for the calendar year 2011. It shows that Trang received $12,000 in gross rental income and claimed a net rental income of $8,349.26.[^16]

Scotiabank Investment - 2012

[30] A T5 slip for the 2012 tax year was issued by Scotiabank to Trang in respect of investment income in the amount of $2,062.30. Assuming a 2% interest rate, the Attorney General submits that the sum invested by Trang with Scotiabank is about $100,000.00. On cross-examination, Trang had no recollection of this investment.[^17]

Police Surveillance – July 16, 18, 23 and 25, 2012

[31] Detective Constable David So, a member of the Toronto Police Service, described the observations had been made by other police officers in relation to the Property in July 2012 as follows:

Project Sumo was an investigation by the Major Projects Section which began in the spring of 2012 involving a suspect named [Usman] … Usman was responsible for a large scale Marihuana trafficking operation.

Usman was associated to a residential address at 108 Fred Young Drive.

On the date of Monday, July 16th, 2012, members of the Major Projects Section had conducted surveillance of Usman that led them to 108 Fred Young Drive. On this date Usman was observed leaving this address and met with the same male … identified as [Anton]… . Usman was then observed getting into a car that Anton was driving and they attended 1945 Wilson Avenue, the Safe Storage Depot. Usman retrieved an item believed to be a quantity of marihuana which was placed in the motor vehicle that Anton was operating. The surveillance was discontinued when Usman and Anton returned to the previous location where Usman got into his car and left the area in a separate direction from Anton.

The Safe Storage Depot was Usman’s storage location for his marihuana. On Wednesday, October 24th, 2012 a Controlled Drugs and Substance Act search warrant was executed at the Safe Storage Depot locker #A0805 where 48 lbs of dried marihuana was seized. This marihuana had a street value of $218,500. This storage locker was rented by Usman. As a result a warrant in the first instance. His whereabouts unknown.

Members of Major Projects Section had made observation of the residential address of 108 Fred Young and they believed that it was a location that was used as a place to sort and package dried marihuana. Several vehicles registered outside of the GTA (Brampton, Guelph, Kitchener, Quebec) stopping at 108 Fred Young Drive for short and/or brief periods, brining and taking bags to/from the residence. This suspicious drug activity can be summarized as follows:

On Monday, July 16th, 2012, Usman was observed leaving 108 Fred Young Drive and met with Anton where they attended the Safe Storage Depot nearby and a drug transaction occurred.

On Wednesday, July 18th, 2012, surveillance by Major Projects Section at 108 Fred Young Drive, a black Toyota Highlander BDZB 017 and a blue Toyota Corolla BPCJ 091 was observed parked in the driveway of the residence. At 10:45 a.m., two female Asians got into the Corolla and drove away. Approximately 2 hours later the Corolla returns and reversed into the driveway to the garage. The garage door opens and a male Asian meets the female and he went into the trunk of the Corolla. The male Asian then closed the trunk and entered the garage, the garage door closed behind him. The female Asian entered the front door of the residence, only to leave one minute later and departed in the Corolla. At 12:50 p.m. a white Toyota Venza BHWD 389 reversed into the driveway of 108 Fred Young Drive and the garage door opened. An Asian female exited the Venza and took some bags from the rear of the vehicle and entered the garage. Twenty minutes later the male Asian previously mentioned exited the front door of the residence carrying a blue duffle bag and enters the parked Highlander and departed from the area. Several minutes later the female Asian got into the Venza and left the area. At 1:30 p.m. a black Dodge Calibre Y4J CLJ (Quebec) … parked out front of 108 Fred Young Drive and a male Asian exited the vehicle carrying a black shoulder bag and entered the residence. (This male and Calibre were previously observed on Tuesday, July 10th, 2012, by members of the Major Projects Section involved in a drug transaction with Usman. On the road out front of 106 Fred Young Drive, where Usman placed a black bag into the trunk of the Calibre.) At 2:20 p.m., a gold Dodge Caravan BKKX 804 parked in the driveway of the residence, an Asian male exited the vehicle and entered 108 Fred Young Drive. A couple of minutes later the male Asian driver of the Calibre exited with the black shoulder bag and entered the Calibre and drove away. The male Asian driver of the Caravan exited the residence and left the area at 3:21 p.m. At 4:04 p.m. the male Asian in the Calibre returned and entered the residence carrying the black shoulder bag. This male departed in the Calibre approximately 20 minutes later.

On Monday July 23rd, 2012, further surveillance was conducted at 108 Fred Young Drive by Major Projects Section. The Highlander was parked in the driveway. At 5:15 p.m., a male Asian entered the Highlander and left the area. The male Asian in the Highlander returned approximately 12 minutes later and was carrying a yellow shopping bag, he entered the residence. Approximately 20 minutes later, the Corolla with a female Asian attended the address and parked in the driveway.

On Wednesday July 25th, 2012, surveillance was conducted at 108 Fred Young Drive by Major Projects Section. The Highlander was parked in the driveway. At 10:55 a.m. a grey Volkswagen SUV E36 BQ (Quebec) parked in the driveway of the residence, a female Asian got out and entered the residence. At 11:15 a.m. the same male Asian previously observed placed a blue duffle bag into the rear driver side area of the Highlander. The male Asian entered the vehicle and drove away. Thirteen minutes later, the Highlander returned and the same male Asian was seen carrying a yellow shopping bag and he entered the residence. At 12:00 p.m. two female Asians (one previously seen as the driver) entered the Volkswagen and left the area in the vehicle. At 1:31 p.m., a blue Dodge Caravan S80 BTL (Quebec) reversed into the driveway of 108 Fred Young Drive. A male Asian driver and a female Asian passenger got out of the van. The garage door opens and the male Asian driver of the Highlander was standing inside. The three parties convened at the rear of the Caravan and garage area. Four minutes later, the male and female Asian returned to their Caravan and left the area. The garage door closed with the Highlander male Asian inside the residence. Five minutes after that the Volkswagen returned and a female Asian gout out and entered the residence and the driver of the Volkswagen left the area in the SUV. Seven minutes passed (1:47 p.m.) and the male Asian who drove the Highlander entered the Highlander with another blue duffle bag that he placed in the rear driver side and left the area in the vehicle. At 2:21 p.m., the Corolla is driven out of the garage by a female Asian, this car left the area. At 2:28 p.m., the Highlander returned and the male Asian returned empty-handed and entered the residence. At 4:44 p.m., the Corolla returned and was then parked in the garage. At 4:48 p.m., the male Asian of the Highlander is seen again with another blue duffle bag leaving the residence and placing the bag in the Highlander. The male Asian drove away in the vehicle and left the area.

Police Surveillance - March 6 & 7, 2013 and April 2, 9, 17, 19 and 22, 2013

[32] The Affidavit of Detective Constable Stephane Charron of the Toronto Police Service sworn February 25, 2015 describes his observations of the Property during the period March 6, 2013 to April 22, 2013:

As detailed below, over the course of our surveillance, the other members of my team and I observed numerous people attending at the property for short periods of time, during which they picked-up or dropped-off packages. Based on my training and experience, this reinforced my suspicions that the location was being used as a marihuana distribution centre.

Observations on March 6, 2013

On March 6, 2013, commencing at 6:10, I was a member of the crew conducting static surveillance at the subject property, 108 Fred Young Drive. We observed a Black Toyota Highlander, registered to Van Chung Dang and bearing the license plate BDZB 017, in the garage of the residence. A dark coloured Volkswagen SUV, bearing Quebec license plate E36BBQ, and a dark coloured Lexus, bearing license plate documented as BFFY 177, were parked in the driveway of the subject property.

At 6:18 p.m. a dark coloured BMW bearing license plate BLCN 264 and registered to Deepak Singh, drove into the driveway. The driver of the BMW, a heavy-set brown male, retrieved a duffle bag from the passenger side of the vehicle and entered the subject property. At 6:24 the driver of the BMW bearing license plate BLKH 679 came out onto the porch and looked around.

At 6:27 a 4-door vehicle parked in front of the residence and the driver remained in the vehicle.

The driver of the BMW re-entered the residence at 6:29. A dark coloured SUV bearing license plate BKAK 667 then stopped in front of the residence and a male driver entered the residence with a white plastic shopping bag. The driver of the SUV then returned to the vehicle from the residence with a white shopping bag at 6:36.

At 6:41 the garage door to the residence opened and the BMW driver loaded a large duffle bag, which appeared full and heavy, into the BMW. The garage door then closed and the BMW drove away. The 4-door vehicle parked out front of the residence drove away with the BMW. Both vehicles were followed to Marriot’s Town Place Suite on 5050 Orbitor Drive, Mississauga, Ontario and unknown persons from within the BMW entered the hotel.

At 7:53 a Grand Caravan bearing license plate BPPK 657 parked in the driveway of the subject property. The front passenger went up to the porch of the subject property, went in then came out leaving the vehicle running with an unknown driver. At 7:55 the front passenger returned to the vehicle and the vehicle left the driveway.

At 9:16 a dark coloured Volkswagen drove onto the driveway of the residence. The garage door opened by remote. The front passenger exited the vehicle and the garage door then closed.

At 9:45 my team and I discontinued surveillance of the subject property

Observations on March 7, 2013

On March 7, 2013, my team and I continued surveillance at the subject property, with the goal of documenting vehicles coming and going from the address. We commenced surveillance at 6:20 and discontinued surveillance at 9:17. During that time period, as described in greater detail below, we observed various vehicles attend at 108 Fred Young Drive and pick-up packages.

At 6:20 we observed a Toyota Highlander bearing license plate BDZB 017, which was registered to Van Chung Dang, parked in the driveway of the subject property.

The dark coloured Volkswagen SUV bearing Quebec License plate E33 BBQ, seen at the address the day previous, was parked in the driveway. A grey Honda Accord was parked on the street out front of the subject property. A white Honda Civic, bearing license place BKAZ 488, was also parked on the street in front of the driveway and an older Asian male was in the vehicle, smoking.

At 6:25 p.m. the Honda Accord left the subject property and was followed. On Sergio Marchi Street, the vehicle stopped and an occupant spoke through the window to an occupant of another vehicle. By 6:32 p.m. the Honda Accord returned to the subject property, where the driver remained in the vehicle.

At 6:34, an Asian female exited the subject property and approached the driver’s side of the Honda Accord, possibly conversing with the driver. The female re-entered the subject property and the Honda Accord drove away.

At 6:35 a dark coloured Honda Civic bearing license plate BMRK 838 drove onto the driveway of the subject property. An Asian female in a black coat, carrying a Louis Vuitton purse, exited the vehicle, retrieved a white plastic bag from the trunk of the Honda and carried it into the subject property through the front door.

At 6:37 an Asian male exited the subject property. He took another bag out of the trunk of the Honda Civic and placed it in the trunk of the white Honda Civic, driven by the older Asian male, who had been waiting in the vehicle.

At 6:54 the Asian male placed bags in the back of the BMW bearing license plate E36 BBQ and the dark coloured Honda Civic bearing license plate BMRK 838. The Asian male then re-entered the subject property. The Asian female then exited the residence and entered the BMW. Both vehicles then left the subject property.

At 6:55 a white Lexus 4-door sedan bearing license plate BLTH 737 pulled up to the subject property, an Asian male exited the driver’s side of the vehicle and entered the subject property. The vehicle is registered to an individual named Thi Nguyen.

At 6:55, a white Lexus 4 door sedan, bearing licence plate BLTH 737, pulled up to the subject property, an Asian male exited the driver's side of the vehicle and entered the subject property. The vehicle is registered to an individual named Thi Nguyen.

At 7:07, we observed a 4 door blue Toyota Corolla, bearing licence plate BPCJ 091, parked between 106-108 Fred Young Drive facing eastbound on the south side. The vehicle is registered to the title holder of 108 Fred Young Drive, Trang Thi Dang.

At 7:07 pm, the dark colored Honda returned to the subject property and parked in the driveway. An Asian female exited the vehicle and pulled a reusable grocery bag out of the trunk, struggling to carry it with two hands to the front door of the subject property.

At 7:08, the Asian female exited the subject property, re-entered the dark colored Honda and drove away.

At 7:17, an Asian male exited the residence and entered the white Lexus (BLTH 737) and drove away.

At 8:00, the BMW returned to the subject property, parking in the driveway. An Asian female exited the passenger side of the vehicle and carried what appeared to be grocery bags into the front door of the subject property.

At 8:03, the Asian female existed [sic] the subject property, carrying bags of groceries which are taken to the driver's side of the BMW. The vehicle then drove away.

At 9:17 we discontinued surveillance.

Observations on April 02, 2013

On April 2, 2013, members of my team and I undertook observations of the subject property from 4:00 pm to 9:35 pm. The Toyota Highlander registered to Van Chung Dang was parked in the driveway and an unknown Asian male was seen putting the recycling bins to the curb of the subject property.

Observations on April 09, 2013

On April 9, 2013, members of my team and I undertook surveillance of the subject property from 11:00 am to 1:10pm. We observed various vehicles attend at the subject property and pick up packages, as described in greater detail below.

At 11:00 am we observed the Toyota Highlander, registered to Van Chung Dang, parked in the driveway of 108 Fred Young Drive.

At 11:10 a white Toyota Camry bearing licence plate number BFKC 315 pulled into the driveway. An unknown Asian made, aged 25-30 with short black hair and wearing a black coat exited the driver's side of the Camry and entered the subject property. At 11:24, the same Asian male exited the subject property, entered the Canuy and drove away. My team followed the vehicle to 401 and Mavis Drive and then discontinued surveillance of the vehicle.

At 12:05 pm a Blue Acura was parked in the driveway of the subject property. An unknown Asian male exited the subject property with a white box, placed the box on the side of the subject property, between 108 and 110 Fred Young Drive and then re-entered the subject property.

At 12:25, a beige Toyota minivan backed into the driveway. An unknown Asian female in her 40s with long black hair was driving the vehicle. As she backed into the driveway, the left side garage door opened. The female driver approached the rear of the vehicle and the back door to the van opened briefly. The female closed the rear door to the van and the garage door began to close. The female returned to the driver's seat and the vehicle left the subject property.

My team and I followed the vehicle to Nuy Garden Supply at 425 Eddystone Ave, Unit 5. At 12:35, the vehicle left the Garden Supply store, did a U-turn and then returned to the Garden supply store. The vehicle was then followed to the 'Chi Thanh Supermarket' at 2231 Jane Street. The female driver entered the Supermarket, and then exited while speaking on her cell phone. She hung up, opened the sliding door on the passenger side and took out a plastic grocery bag. She looked around, walked over to a waiting silver Acura and got into the rear passenger seat. She then got out of the Acura and went back into the grocery store. The female then exited the Supermarket and placed what appeared to be groceries on the rear seat, then drove away. She was followed to 55 Sunray Crescent at which point the team discontinued surveillance.

Observations on April 17, 2013

On April 17, 2013 my team and I undertook surveillance at the subject property from 6:45 pm to 10:30 p.m.

At 6:45, we observed two vehicles in the driveway, a Corolla and a white SUV Range Rover, the Range Rover bearing Quebec plates K61 ETV. The Range Rover is registered to Dinh Linh Thuy and Altaf Usman. At 6:54, we observed an unknown male with brown complexion with short dark hair carrying a dark bag with an unknown Asian female in front of the subject property. The two entered the white Range Rover, with the female driving and the male in the passenger seat with the bag. Our mobile unit followed the vehicle to the Marriot Town Places Suites on 5050 Orbitor Drive. The male and female entered the hotel with the bag and my team and I returned to the subject property.

At 9:40 we observed the Toyota Corolla registered to the title holder to the subject property, Trang Thi Dang in the driveway of the subject property.

At 9:50, the Toyota Highlander registered to Trang Thi Dang arrived at the subject property and an unknown Asian male exited the vehicle and entered the subject property. My team and I then discontinued surveillance of the subject property

Observations on April 19, 2013

On April 19, 2013 my team and I undertook surveillance at 108 Fred Young Drive from 4:00 pm to 6:10 pm. At 4:26, the Toyota Highlander registered to Van Chung Dang pulled into the driveway. An Asian male driver exited the vehicle and entered the front door of the subject property.

A two-door silver Mercedes Benz with tinted windows and Quebec plates M99DVX, registered to Usman Altaf, then parked on the road in front of the subject property. The driver, Usman Altaf, exited the vehicle and entered the subject property. A White 2 door Honda Accord pulled into the driveway and an unknown Asian female exited the driver's seat and entered the subject property through the front door. A minute later, the Asian female exited the subject property, re-entered the Honda Accord and drove away.

At 6:47 a Dark colored 2 door Honda Civic bearing licence plate BMRK 838 pulled into the driveway next to the Highlander and an unknown female exited the vehicle. The male driver of the Mercedes was now outside the subject property and on the driveway with the fernale driver of the Honda Civic. They proceed to the Mercedes parked on the road; the female entered the driver's side of the vehicle and the male enters the passenger side. At 6:52, the mobile crew followed the vehicle to Torbarrie Road, where the vehicle did a U-turn and then pulled into a driveway at 63 Torbarrie Road. Usman Altaf then exited the vehicle and walked out of view. He then retumed to the vehicle, re-entered the passenger side of the vehicle and appeared to engage in a conversation with the female driver.

The car was followed to Finch Ave West, where at 5:19p.m. a 31 Division uniform scout car pulled the Mercedes over into a Petro Canada gas lot and conducted a stop of the vehicle, during which time my team stood by. My team learned that Usman Altaf was being arrested. The female driver and an unknown, male, back seat passenger exited the vehicle during the arrest; after the arrest, they re-entered the vehicle. The vehicle then exited onto Finch Ave, did a U-turn and returned to the Petro Canada gas lot. The female entered the gas station store and then returned to the vehicle. The vehicle was followed to the 2397 Finch Avenue and then let go.

At 5:10, a white Honda Accord bearing licence plate BPAD 009 drove into the driveway of the subject property. An unknown Asian female exited the vehicle and removed a dark bag from the trunk to the front door of the subject property. At 7:24 the same female left the subject property with a dark bag, which she placed in the trunk of the Honda Accord.

At 6:26, an unknown Asian female wearing a white jacket left the subject property and entered a dark colored Honda Civic parked in the driveway, bearing licence plate BMRK 838.

At 6:55 the grey 2-door Mercedes- Benz licenced to Usman Altaf returned to the subject property, drove by it, did aU-turn and parked north of the subject property. At 6:57, the female driver and male passenger of the Mercedes entered the subject property. At 7:26 they left the subject property, re-entered the Mercedes and drove away.

At 7:35, my team and I discontinued surveillance.

Observations on April 22, 2013

At 12:24 on April 22, 2013 my team and I began surveillance at the subject property. We observed the Toyota Highlander registered to Van Chung Dang parked in the driveway, and a Toyota Sienna bearing licence plate number BNAR 996 parked on the road. A White Honda Accord bearing licence plate number BPAD 009 pulled out of the driveway and drove away.

At 12:55, a dark colored Toyota Corolla bearing licence plate BPCJ 091, registered to the title holder to the registered property, entered the driveway. An Asian female in a red coat exited the vehicle and entered the subject property.

At 12:58, an Asian female left the subject property and got into the driver's seat of the Toyota Sienna and then drove away.

At 1:35, a Silver Honda Civic bearing licence plate BBZT 768 parked out front of the subject property. An Asian female with a green top, blue jeans and brown boots exited the passenger side of the vehicle and entered the front door of the subject property. The vehicle continued eastbound and stopped out front of the subject property. The driver is an Asian male with short black hair. At 1:36, the female Asian exited the subject property, re-entered the passenger side of the Silver Honda Civic and the vehicle drove away.

At 2:32, an Asian male, tall with a skinny build, exited the front door of the subject property and entered the Toyota Highlander. He is identified as Van Chung Dang. His vehicle is followed to York Plaza at 1615 Wilson Ave. At 2:38 the vehicle parked in front of the Blue Sky Supermarket, where Dang exited the vehicle and attended at the TD Bank. At 2:52, Dang emerged from the TD bank, entered the vehicle and drove off. He was followed to the Safe Storage Depot at 1945 Wilson Ave. At 2:56, Dang emerges from the vehicle and entered the Storage Depot. At 3:20, Dang left the Storage depot and appeared to be holding a pamphlet in his hand. He re-entered the car and was followed to a Tim Horton's drive thru and then back to the subject property. At 3:42, Dang re­ entered the subject property.

At 3:48 Dang exited the subject property. The left side of the garage door opened and Dang took two blue bags from the garage, opened up the rear driver's side door and threw them in the back of the vehicle. Dang then re-entered the garage and the garage door closed. At 4:07 my team and I discontinued surveillance.

[33] Trang explained the movements of the people seen at the Property during the same period as follows:

While I cannot be certain, I believe that many of the individuals that the police observed while they were monitoring the Property were family friends and that the packages that they brought or took with them contained grocery or other food items.

[34] However on cross-examination, Trang could not recall the name of any one of these family friends. She also stated that her own friends did not visit the Property very often.[^18]

Execution of Search Warrant – April 23, 2013

[35] The Affidavit of Detective Constable Charron describes the execution of the search warrant as follows:

The Toronto Police Force executed a search warrant on April 22, 2013. Detective Constable Charron participated in the execution of the search warrant and his affidavit describes what was found at the Property as follows:

On April 22, 2013 a Controlled Dmgs and Substances Act (CDSA) search warrant was granted for 108 Fred Young Drive and the Toyota Highlander registered to Van Chung Dang. That same day, I participated in the execution of the search warrants along with other members of my team.

At 5:28 pm a search warrant was executed at 108 Fred Young Drive. We entered the property and began a search of the main floor of the subject property. We located an Asian female, later identified as Thi Chi Bui in the mud room. Cst. So observed Ms. Bui open the door to the garage and throw a blue bag into the garage. Ms. Bui was then detained.

An Asian male, later identified as Van Chung Dang was located in one of the upstairs bedrooms and was detained.

Drugs, Currency and Other Items Found

Upon a search of subject property, my team and I located a total of 905.32 grams of Marihuana, $46,030.00 in Canadian currency and other items. In particular, my team and I located:

(a) Laundry room- a total of 186 grams of dry Marihuana.

(b) Bathroom cupboard- a total of 19.61 grams of dry Marihuana

(c) Garage - one blue/grey bag containing 222.37 grams of dry Marihuana and one blue shopping bag containing 477.90 grams of dry Marihuana.

(d) Garage- vacuum sealer and digital scale

(e) Marihuana packaging - ziplock bags/plastic packaging

(f) Numerous cell phones - LG Phone, Iphone, blackberry

(g) Documents including tax returns, investment statements, debt list, and travel documents;

(h) $46,030.00 in Canadian currency located throughout the home. A quantity of the$46,030.00 was located in the bedroom along with documents and a passport in the name of Trang Thi Dang (the owner on title for 108 Fred Young Drive)

(i) Income tax documents in the name of Trang Thi Dang and Thi Chi Bui on the coffee table in the living room.

(j) A plane ticket to Vietnam in the name of Thi Chi Bui with a departure date of April 29, 2013.

On the same date, a CDSA search warrant was obtained and executed for the Toyota Highlander registered to Van Chung Dang parked at the subject property. Upon a search of the Toyota Highlander, two large blue plastic bags contained vacuum sealed bags of dry Marihuana. A total of 4043.68 grams of Marihuana was found, comprised of a bag containing 2245.03 grams of dry Marihuana and a bag containing 1798.65 grams of dry Marihuana. Inside the door of the driver’s side of the vehicle, my team and I located a wallet which contained identification belonging to Van Chung Dang.

As a result of the execution of the two search warrants, a total of 4943.11 grams (almost 5 kilograms) of Marihuana was located.

Details of the Search

Ms. Bui's purse was searched and $1,000 CND and $590 US was located in her purse.

Sealed bags of dried Marihuana were located in the blue bag thrown into the garage by Ms. Bui. A similar blue bag was located on the counter in the mud room next to the washer and dryer and sealed Marihuana was found in this bag as well.

A video of the subject property was then taken and the property was searched. During the search of the property, I observed that the subject property was well-maintained and appeared to be used as a primary residence, inhabited by at least 3 people. Three bedrooms were fully furnished with clothing in the closets and the bathrooms were stocked with towels and toiletries. There were personal effects throughout the home, including photographs depicting international travel and wedding ceremonies.

In Room 2, a passport in the name of Van Chung Dang was located, along with an Iphone and a quantity of currency. An income tax summary in the name of Chung Dang is also located. In the closet of this room a plastic bag hanging inside a puffy coat is located, containing a paper bag, with bundled currency. When counted, the currency was determined to be $20,000.

In the bathroom between Room 1and Room 2 dry Marihuana in a sealed bag was located under the counter in the bathroom.

In Room 3, real estate documents for the purchase of 108 Fred Young Drive for Trang Thi Dang were located. Also in this room, a plastic bag, containing a paper bag stuffed with money, bound together with elastics was located hanging on a hanger inside a lime green robe. When counted, the currency was determined to be $17,000. Also located in this room was a Louis Vuitton wallet containing $1,100 CND.

Room 4 was searched and a bundle of money was located in the 2"d drawer of the white dresser. The money was bundled in elastic bands. Documents and a passport were located inside the room bearing the name Trang Thi Dang. When counted, the money located in this room totalled $6,020.

In the mudroom, a vacuum sealer, plastic bags and a digital scale were located.

In the living room, income tax documents for Trang Thi Dang and Thi Bui were located on the coffee table.

The documentation in the subject property suggested that the property was used as a day care. I did not observe any indication that the property was used for that purpose, however. For instance, I did not observe any children's toys, children's gates or highchairs. The documentation found on site also indicated that Trang Thi Dang was a daycare worker and that Thi Chi Bui and Chung Van Dang were unemployed.

Trang testified that at the time of the execution of the search warrant she lived at the Property with Bui and Chung. Bedroom #3 belonged to Bui. Bedroom #4 belonged to Trang. Truong did not live at the Property at that time however when he visited, Truong would sleep in a guest room.

Trang stated that the $6,020 in cash found in her bedroom was not her

Possession of Marihuana for the purpose of trafficking and Possession of Proceeds of Crime – 2013

[36] On April 23, 2013 Bui and Chung were charged with possession for the purpose of trafficking Marihuana contrary to s. 5(3)(a) of the CDSA and possession of proceeds of crime ($46,030.00) contrary to s. 354(1)(a) of the Criminal Code.

Sale of the Property – January 2014

[37] As noted earlier, the Property was sold on consent for $755,000 on January 6, 2014 and the net proceeds of $316,199.70 were deposited with the Accountant of the Superior Court of Justice pending the final determination of this Application.

Stay of Charges – October 2014

[38] The charges laid against Bui and Chung on April 23, 2013 were stayed by the Ontario Court of Justice on October 30, 2014 pursuant to section 24(1) of the Charter on the basis of delay in the proceeding that violated their rights under section 11(b) of the Charter.

ANALYSIS

[39] The stated purposes of the Act are to provide civil remedies that will assist in:

(a) compensating persons who suffer pecuniary or non-pecuniary losses as a result of unlawful activities;

(b) preventing persons who engage in unlawful activities and others from keeping property that was acquired as a result of unlawful activities;

(c) preventing property, including vehicles as defined in Part III.1, from being used to engage in certain unlawful activities; and

(d) preventing injury to the public that may result from conspiracies to engage in unlawful activities.

[40] In Chatterjee v. Ontario (Attorney General) 2009 SCC 19, [2009] 1 S.C.R. 624, the Supreme Court of Canada stated, at para. 23, that the Act “… creates a property-based authority to seize money and other things shown on a balance of probabilities to be tainted by crime and thereafter to allocate the proceeds to compensating victims of and remedying the societal effects of criminality. The practical (and intended) effect is also to take the profit out of crime and to deter its present and would-be perpetrators.”[^19]

[41] Proof of unlawful activity does not require a criminal conviction. The standard of proof on an application under the Act is on the balance of probabilities.

ISSUE #1: HAS THE ATTORNEY GENERAL ESTABLISHED THAT THE PROPERTY IS “PROCEEDS OF UNLAWFUL ACTIVITY”?

[42] Section 3(1) of the Act states that property shall be forfeited if the court finds that it “is proceeds of unlawful activity” unless either of the “legitimate owner” or “interests of justice” exceptions are established.

[43] According to section 2, “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…” Further, “unlawful activity” means an act or omission that is an offence under an Act of Canada, Ontario or another province or territory of Canada whether the act or omission occurred before or after this Part came into force.

[44] The Attorney General submits that the proceeds of drug trafficking were used to purchase the Property and were also used to pay the mortgage, utilities and household expenses associated with the Property.[^20]

[45] Based on a purposive interpretation, it is my view that the phrase “property acquired” within the definition of “proceeds of unlawful activity” refers only to the purchase of property.[^21] The ordinary and grammatical meaning of the verb “acquire” is to “come to possess” something.[^22] The word “acquire” in relation to property is used in the definitions of “legitimate owner” and “proceeds of unlawful activity”. The word “acquire” is used in the definition of “legitimate owner” to refer to a person who “acquired the property for fair value” and to a person who “acquired the property from a person”. In light of the above, it is my view that a just and reasonable interpretation of the word “acquire” for purposes of Part II of the Act refers to the “purchase” of property and it does not include any increase in equity that results from payments made towards a mortgage on a property nor does it include payments made towards utilities or household expenses for a property.

[46] The Attorney General submits that the Property was acquired by Trang as a result of unlawful activity for the following reasons:

• Police seized drugs, drug paraphernalia and cash on the execution of the April 22, 2013 search warrant. The cash totaled $46,030.00 and was mostly bundled and bound with elastic bands. Drug dealings are a cash business.

• Police found four bundles of cash totaling $6,020 in Trang’s room together with her passport and other identification. This cash was bundled and bound in the same manner and consisted of the same denominations as the bundles of cash found in the bedrooms belonging to Bui and to Chung.

• The family had little apparent lawful employment. According to her Income Tax Return, Bui’s total income for 2012 was $3,120, earned in Employment Insurance. Yet, upon her arrest, she drove a Lexus and carried a Louis Vuitton wallet that had $1,590 cash in it, together with two debt listst. Upon her arrest, Bui advised police that she was unemployed.

• Upon his arrest, Chung advised police that he was unemployed. The Show Cause Record for Chung Dang indicates that he has a Grade 12 education, is unemployed and resides at home with his co-accused mother and adult sister. Chung has no legitimate means of income as he is unemployed and claims not to receive social assistance.

• Trang purchased a new Toyota vehicle in 2012 and enjoyed overseas trips to London, Paris, Cancun, India and multiple trips to Vietnam. Although by her own admission Trang worked only part time and at jobs that paid at or near minimum wage, she enjoyed a lifestyle well beyond the means of any legitimately earned income. The only documents with respect to Trang’s income are two 2012 Income Tax T4 slips: one from Creative Kids Place in the amount of $337.50, the other from Yes I Can Nursery in the amount of $1,575.00. A Statement of Real Estate Rentals that police seized indicates that Trang received $12,000 in gross rents, from which she deducted expenses, for a 2012 total rental income of $8,349.26.

• Trang was solely responsible for paying approximately $2,000 / month in mortgage payments. Trang accepted money from her mother Bui and brother Chung for these payments. Trang claimed in her affidavit that Bui and Chung each contributed $500 every month to the mortgage. Trang accepted money from her mother and brother for the mortgage although neither had income.

• Bui had no employment income, and earned only $3,120 in 2012, yet contributed each month towards mortgage, utilities and household expenses.

• Chung had no legitimate employment but contributed $500 / month towards mortgage, utilities and household expenses.

• Police found thousands of dollars in bundled cash wrapped in elastic bands in the bedrooms of each of Bui, Chung and Trang.[^23]

[47] None of the above circumstances occurred before Trang and Truong’s purchase of the Property in 2007 and as a result, they do not show that, on the balance of probabilities, the Property was acquired as a result of unlawful activity.

[48] Trang’s affidavit evidence is that she purchased the Property using funds that she inherited from her father together with mortgage financing from the CIBC. In my view, Trang’s evidence that the Property was purchased using funds that she inherited from her father is not credible.

[49] First, on cross-examination, Trang testified that her father had left her an inheritance of about $200,000.00. Trang testified that relatives and family friends brought this money over from a bank in Vietnam in increments of a few thousand dollars. At that rate, there would have been 40 to 100 deliveries made by these friends and relatives yet Trang could not recall the name of one person who delivered these funds.

[50] Second, Trang testified that these inherited funds were kept in their house rather than at a bank. It seems improbable that $25,000, $50,000 or more would have been kept in her home rather than a bank. It also seems improbable that there would not have been any records or other documents that reflected each delivery of funds to Trang or Bui.

[51] Third, Trang stated that these funds were used by Bui to buy a condominium (on Bathurst Street, near the CNE on some unspecified date) and a convenience store in 2003. No particulars were provided regarding how much of the inherited funds were used for either of these two purchases.

[52] Fourth, Trang was inconsistent on cross-examination regarding how the purchase of the Property was financed. At one point, she stated that the purchase of the Property was financed by a mortgage with a value of 80% of the purchase price and thus she paid only a 20% deposit on the purchase price, equivalent to about $126,000.00. At another point, Trang testified that she paid about $200,000 towards the purchase of the Property. However, the CIBC mortgage was only $350,000, which is about 58% of the purchase price of the Property. As a result, Trang and Truong had to pay the balance of $278,033.25 on closing, which is far beyond $126,000.00 or the $200,000.00 suggested by Trang. Trang’s inability to consistently or accurately recall the amount of money that was paid on closing for the purchase of the Property, especially given her limited means, undermines her credibility and suggests that her own money, inherited or otherwise, was not being used in this transaction.

[53] Having concluded that Trang did not purchase the Property with an inheritance from her father does not lead to the conclusion that the Property was purchased with the proceeds of unlawful activity.

[54] The only evidence of unlawful activity prior to September 2007 relates to Bui’s conviction in June 2004 related to a charge on May 8, 2003 for possession of marihuana with a street value of over $350,000.00 for the purpose of trafficking. Trang testified that her “family worked tirelessly to build a better life for ourselves”. Trang testified that Bui’s work prior to August 2003 involved working in a nail salon. Given the above conviction, Bui’s tireless efforts at building a better life for her family also included the unlawful activity described above. I find that, on the balance of probabilities, at least some of the proceeds of Bui’s unlawful activity in 2003 were used to pay for her purchase of the convenience store a few months later on August 1, 2003.

ISSUE #2: HAS TRANG ESTABLISHED THAT SHE IS A “LEGITIMATE OWNER”?

[55] Pursuant to subsection 3(1) of the Act, if a person proves that he or she is a legitimate owner of the property, the court shall make such order as it considers necessary to protect the legitimate owner’s interest in the property, unless it would clearly not be in the interests of justice.

[56] Section 2 defines a “legitimate owner” as 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). [Emphasis added]

[57] There is no dispute that Trang did not acquire the Property as a result of unlawful activity that she committed.

[58] Trang further submits that she was the rightful owner of the property before the unlawful activity occurred and was deprived or possession or control of the property by means of the unlawful activity. However, Trang became the owner of the Property after the unlawful activity prior to 2007, whose proceeds contributed to the acquisition of the Property. Accordingly, the defence in clause (a) described above is not established.

[59] Although it was not argued by Trang, I find that the defence in clause (b) above is also not established. On the balance of probabilities, I find that Trang has not established that she “could not reasonably have known at the time of acquisition of the Property in 2007 that the property was proceeds of unlawful activity”.

[60] Trang lived with her mother until 2010. Thus, I find that Trang was well aware of Bui’s arrest in 2003 and conviction in 2004 and thus would have been aware of Bui’s unlawful activity during that period.

[61] Further, Bui, not Trang, agreed to buy the Property from its builder in February 2006. I accept the Attorney General’s submission that Bui directed that, on closing, title to the Property be taken by Trang and Truong in order to reduce the risk of forfeiture under the Act or in future criminal proceedings. Bui contemplated continuing her unlawful activity in 2003 for years to come, and the evidence shows that large quantities of marihuana were kept in her possession in October 2007 at another location and in April 2013 at the Property. I also note that title to the Property was taken by Trang and her brother Truong. Trang did not provide any explanation as to why title was taken by Truong given her allegation that the Property was purchased solely with her inheritance. Neither did she provide an explanation for Troung’s transfer of his interest in the Property to his cousin in August 21, 2009 who, in turn, transferred this interest to Trang in December 2009. I find that such transfers were likely precipitated by Truong’s conviction in April 2009 for possession of marihuana. By that time, Trang was the only member of her family without a CDSA or Criminal Code record.

[62] For the above reasons, I dismiss Trang’s submission that she is a “legitimate owner” of the Property.

ISSUE #3: HAS THE ATTORNEY GENERAL ESTABLISHED THAT THE PROPERTY IS AN INSTRUMENT OF UNLAWFUL ACTIVITY?

[63] Under subsection 8(1) of the Act.a property shall be forfeited if the court finds that the Property “is an instrument of unlawful activity”.

[64] An “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”, see subsection 7(1).

[65] The Attorney General submits that the Property was used as a place to sort, package and distribute dried Marihuana. Trang submits that the Property was “just an ordinary residence”.

[66] Trang submits that the Property did not look like a marihuana distribution centre. The Property looked like an ordinary residence in a typical suburban setting. There were no surveillance cameras, boarded doors or restricted public access. There were no drugs or cash in plain view. The Police acknowledge that most individuals do not use their private residence to distribute Marihuana. However, despite its physical appearance, the activities at the Property observed by the Toronto Police Services during the period of July 2012 and March – April 2013, described in detail earlier, gave it sufficient reason to believe that the Property was being used as a marihuana distribution centre.

[67] Acting on this belief, the Toronto Police Services executed a search warrant on April 23, 2013. Their belief turned out to be well founded. A total of 905 grams of dried Marihuana was discovered in the house and garage. The police found:

• In the garage: 1) one blue/grey bag containing 222 grams of dried Marihuana; 2) one blue shopping bag containing 477 grams of dried Marihuana; 3) a vacuum sealer and digital scale. Bui and Chung were in the house at the time of the execution of the search warrant. Bui was observed to have opened the garage door and thrown a blue bag containing sealed bags of dried Marihuana into the garage.

• In the laundry room, 186 grams of dried Marihuana;

• In the bathroom, 19 grams of dried Marihuana;

• In Bui’s bedroom, the police found a plastic bag containing $17,000 CDN bound together with elastics hanging in a her closet, a wallet containing $1,100 CDN and the real estate documents related to the purchase of the Property;

• In Trang’s bedroom, the police found Trang’s passport and $6,020 bound together with elastics;

• In Chung’s bedroom, the police found a paper bag containing $20,000 CDN bound together in a coat that was hung in his closet along with his passport

[68] In addition, the police found two large blue plastic bags that contained a total of 4,043 grams of Marihuana inside Chung’s Toyota Highlander that was parked in the driveway of the Property.

[69] Trang submits that the Attorney General returned the $46,000 in cash found at the Property after the criminal charges against Bui and Chung were stayed in October 2014. Trang states that this is an admission that the monies were not the proceeds of unlawful activity. The Attorney General has not explained its decision to return these funds nor why forfeiture of these funds was not sought in this proceeding.

[70] Trang also submits that the Attorney General did not commence forfeiture proceedings againt Chung’s Toyota Highlander despite the fact that more than 4,000 grams of dried marihuana was found in his car. Trang submits that, as a result of its inaction, the Attorney General should be estopped from relying on the evidence of the marihuana found in Chung’s automobile in this proceeding.

[71] I disagree. There is no credible explanation for the activities observed at the Property and for the Marihuana, related packaging and weighting appliances, and large amounts of cash, found in the Property other than that the Property was being used as a marihuana distribution centre. Trang, Bui or Chung have not explained why there was $46,000 in cash found in their bedrooms or 905 grams of dried marihuana found in their home. Nor has Chung explained why there was more than 4,000 grams of dried Marihuana found in his automobile. The failure of the Attorney General to obtain a forfeiture order for the $46,000 in cash or the 4,000 grams of dried marihuana is insufficient reason to ignore their existence in this proceeding. In my view, the Attorney General has established that the Property was the instrument of unlawful activity.

ISSUE #4: HAS TRANG ESTABLISHED THAT SHE IS A RESPONSIBLE OWNER?

[72] Trang submits that she is a responsible owner and thus her interest in the Property should be protected from forfeiture. Under subsection 7(2) of the Act, if a person proves that she is a responsible owner of the property, the court shall make such order as it considers necessary to protect her interest in the property, unless it would clearly not be in the interests of justice.

[73] According to subsection 7(1), a “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.

[74] Trang states that she was adamant about not permitting the Property to be used to facilitate any type of drug transactions and had no reason to believe that it was being used in such a manner. Trang states that she was angry, shocked and disappointed by the charges laid against Bui and Chung in 2013. She stated that she had “no knowledge or reason to believe that the Property was being used as a marihuana distribution centre”. She stated that “I never had any reason to suspect that my mother, Chung, or their guests had possession or control of any controlled substance”. Trang’s assertions are not credible.

[75] First, she lived with Bui, Chung and Truong. All three family members had a history of being charged and sometimes convicted of possessing large amounts of marihuana for the purposes of trafficking.

[76] Second, the Police surveillance of the Property in 2012 and 2013 show that Trang’s vehicle, and thus presumably Trang, was present at the Property when numerous other persons visited on July 18, 2012, July 25, 2012, March 7, 2013, April 17, 2013 and April 22, 2013. Trang’s evidence was that these persons were family friends or relatives who had brought or took away groceries or food. However, Trang could not remember the name of any one of these friends or relatives.

[77] Third, her family lived a lifestyle that did not reflect their circumstances. Bui worked on a vegetable farm from 2006 until 2013, according to Trang, and she owned a Lexus SUV. According to the Toronto Police Services, documents were found with the execution of the warrant in 2013 which indicated that both Chung and Truong were unemployed. Chung, however, did not drive a Lexus but rather owned a Toyota Highlander.

[78] Fourth, although Trang states that she never saw a large quantity of cash at the Property, the police found $6,000.00 in her own closet. Further, a T5 slip issued by Scotiabank to Trang in 2012 for investment income of $2,000.00 shows that Trang probably had an investment of about $100,000.00 with Scotiabank. However, Trang testified that she had no knowledge of this investment. No explanation for this T5 slip was subsequently provided by Trang. It is remarkable that someone with Trang’s very limited employment would not be able to remember a $100,000 investment. Her failure to explain this investment raises the distinct possibility that it represents some of the income that has been generated by her family’s unlawful activities.

[79] Fifth, the evidence is that the drug trafficking activity at 108 Fred Young was open and conspicuous. It is reasonable to infer that Trang was well aware of, and more likely than not a participant in, that unlawful activity.

[80] In my view, Trang has failed to establish that she was a “responsible owner” of the Property.

ISSUE #5: HAS TRANG ESTABLISHED THAT FORFEITURE OF THE PROPERTY IS “CLEARLY NOT IN THE INTERESTS OF JUSTICE”?

[81] The Act provides that the Court shall not order forfeiture where it “would clearly not be in the interests of justice”. In Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), 2011 ONCA 363, [2011] O.J. No. 2122, at para. 85 the Ontario Court of Appeal held that the “party seeking relief must demonstrate that, in the circumstances, the forfeiture order would be a manifestly harsh and inequitable result.”. It further stated, at paras. 96-97, that the phrase “interests of justice” is:

a broad one and includes maintaining public confidence in the civil justice process. That confidence is promoted by orders that are, broadly speaking, in accord with the community's sense of fairness. A forfeiture order made in circumstances where any reasonable person would regard the order as excessive, while perhaps serving the purposes of the CRA in the narrow sense, would do a real disservice to the administration of justice and thereby undermine rather than promote the "interests of justice".

A court asked to grant relief from forfeiture under s. 3 must consider all factors that are relevant to the "interests of justice". It is not possible to catalogue all of the factors that could properly be taken into account in evaluating the interests of justice in any given case.

[82] The considerations used to assess whether a forfeiture order would be a manifestly harsh and inequitable result include:

a. The reasonableness of the Respondent’s conduct;

b. The disparity between the amount of the proceeds and the amount sought to be forfeited; and

c. Whether forfeiture would be consistent with the purposes of the Civil Remedies Act.

d. The length of time the Respondent lived in the property;

e. Respondent’s ties to the Property;

f. Respondent’s ties to the community; and

g. Closeness of connection between the Property and the unlawful activity

[83] For the reasons described above, I have found that the Property was acquired with the proceeds of unlawful activity and was an instrument of unlawful activity. On the balance of probabilities, I have found that: 1) the Property was not purchased with an inheritance that Trang received from her father; 2) the Property was purchased with proceeds of unlawful activity; 3) Trang took title to the Property in an attempt to shield it from forfeiture proceedings against her mother, Bui, who had arranged for the purchase of the Property. Further, I have found that Trang knew or ought to have known that the Property was being used or was likely to be used as an instrument of unlawful activity yet took no steps to prevent the property from being used for such purposes, including by reporting such activity to the police.

[84] Trang has failed to provide any credible evidence that forfeiture in this case would be inconsistent with the objectives of the Act.

[85] Given my findings, the forfeiture order is neither manifestly harsh nor inequitable in relation to Trang. Accordingly, Trang has not established that the forfeiture order should be modified as a result of the application of the “interests of justice” exception.

CONCLUSIONS

[86] I grant the Attorney General’s application.

[87] I award costs of this Application to the Attorney General. I encourage the parties to resolve the issue of costs failing which the Attorney General may submit her costs submissions within two weeks of the date of this Order and Trang may submit her reply costs submissions within three weeks of the date of this Order. Costs submissions shall be no longer than five pages, exclusive of an outline of costs.

Mr. Justice M. Faieta

Released: April 22, 2016

2016 ONSC 2033

COURT FILE NO.: CV-13-4986139

DATE: 20160422

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ATTORNEY GENERAL OF ONTARIO

Applicant

– and –

108 FRED YOUNG DRIVE, TORONTO (IN REM)

Respondent

REASONS FOR JUDGMENT

Mr. Justice M. D. Faieta

Released: April 22, 2016

[^1]: Paragraph 73 of the Affidavit of Detective Constable Stephane Charron, sworn February 25, 2015.

[^2]: Questions 27, 28, Cross Examination of Trang, August 17, 2015.

[^3]: Questions 451-468.

[^4]: Affidavit of Detective Constable Becky Singfield, sworn August 1, 2013, para. 14.

[^5]: Questions 354-358.

[^6]: Question 402, 432.

[^7]: Tab 2 of the Respondents Brief of Documents dated December 9, 2015 contains documents obtained from the CIBC’s files related to this mortgage. At page 50 there is a cheque n the amount of $403,571.14 issued to Bui by Goodman and Griffin dated July 6, 2007 apparently in relation to “54 Canyon”. No explanation was provided by Trang as to how this cheque relates to the CIBC mortgage.

[^8]: Questions 306, 307, 324.

[^9]: Questions 524-525.

[^10]: Questions 308, 311, 325- 327.

[^11]: Question 329.

[^12]: Question 341, 403-406.

[^13]: Respondent’s Brief of Documents, December 9,2015, page 49.

[^14]: Questions 388-393.

[^15]: Question 494.

[^16]: This document was obtained by the Toronto Police Service during the execution of its search warrant on April 23, 2013. See page 40 of the Respondent’s Brief of Documents, February 10, 2016.

[^17]: Questions 490-491.

[^18]: Questions 497-499.

[^19]: Also see section 1 of the Act which describes its stated purposes.

[^20]: Attorney General for Ontario, Factum, para. 119.

[^21]: Wawanesa Mutual Insurance Co. v. Axa Insurance (Canada), 2012 ONCA 592, [2012] O.J. No. 4196, at para. 32.

[^22]: Concise Oxford English Dictionary, Twelfth Edition, 2011.

[^23]: Attorney General for Ontario, Factum, Endnote 173, paragraphs 20-30.