Attorney General of Ontario v. $18,550.00 in Canadian Currency et al. (In Rem)

[Indexed as: Ontario (Attorney General) v. $18,550.00 in Canadian Currency (In Rem)]

Ontario Reports

Ontario Superior Court of Justice,

Bondy J.

April 22, 2016

131 O.R. (3d) 162 | 2016 ONSC 2237

Case Summary

Civil procedure — Evidence — Expert evidence — Evidence of police officer who sent submission to reviewing authority asking that Attorney General commence civil forfeiture proceeding not admissible in absence of Form 53 affidavit — Officer's opinions not based on his personal knowledge acquired in investigation — Officer not a "participant expert" or "fact witness".

Remedies — Forfeiture — Offender with no criminal record found in possession of small amount of marijuana while driving his uncle's car — Large amount of cash in mixed denominations bundled with elastic bands found in car — Offender pleading guilty to possession of marijuana — Ontario applying successfully for order of forfeiture of currency under Civil Remedies Act — Strong odour of fresh marijuana in vehicle consistent with recent presence of much larger amount of marijuana than was discovered — Bundling of cash consistent with practice of drug traffickers — Offender not providing credible or reasonable explanation for presence of cash — Currency likely proceeds of and instrument of unlawful activity of drug trafficking — Relief from forfeiture not appropriate — Civil Remedies Act, 2001, S.O. 2001, c. 28.

N was stopped by two police officers while driving his uncle's car. The officers detected a strong smell of fresh marijuana in the car. N produced a bag containing 3.2 grams of marijuana and was charged with possession of marijuana. A search of his person revealed a large amount of Canadian and American cash. N was rearrested for trafficking in narcotics. A search of his car uncovered more [page162] cash in mixed denominations, bundled with elastic bands. Despite the fact that a sniffer dog indicated positively on part of the vehicle, no more marijuana was found. N pleaded guilty to possession of marijuana. A police officer, G, sent a submission to the reviewing authority asking that the Attorney General consider commencing a civil forfeiture proceeding under the Civil Remedies Act, 2001. The Attorney General applied for an order of forfeiture of the cash, which totalled $18,550 in Canadian currency and $930 in U.S. currency.

Held, the application should be granted.

G's evidence was not admissible as he had not filed the requisite Form 53 affidavit acknowledging the duties of an expert witness. G had not based his opinions on his personal observations, but rather on the observations of others. He was not a "participant expert" or a "fact witness". Moreover, there was at least a reasonable apprehension that he had a vested interest in the outcome of the application.

The strong smell of marijuana and the positive indication of the sniffer dog were consistent with the recent presence in the vehicle of more marijuana than was discovered. The way in which the cash was bundled was consistent with the practice of drug dealers. N failed to offer a credible or reasonable explanation for the presence of so much cash in the vehicle. N was deceitful in addressing the origins and ownership of the cash and at first attempted to distance himself from it. In all of the circumstances, and despite N's lack of a criminal record, the only rational inference that could be drawn from the evidence was that the currency was the proceeds of and the instrument of the unlawful activity of drug trafficking. It was not in the interests of justice to grant relief from forfeiture, and N did not fall within the legitimate owner exception in s. 3(3) of the Act or the responsible owner exception in s. 8(3) of the Act.

Ontario (Attorney General) v. $10,000 in Canadian Currency (In Rem), [2014] O.J. No. 653, 2014 ONSC 944, 114 W.C.B. (2d) 200 (S.C.J.); R. v. MacKenzie, [2013] 3 S.C.R. 250, [2013] S.C.J. No. 50, 2013 SCC 50, 290 C.R.R. (2d) 99, 448 N.R. 246, 2013EXP-3114, J.E. 2013-1700, EYB 2013-227101, 363 D.L.R. (4th) 381, 4 C.R. (7th) 260, 423 Sask. R. 185, [2013] 12 W.W.R. 209, 303 C.C.C. (3d) 281; Westerhof v. Gee Estate (2015), 124 O.R. (3d) 721, [2015] O.J. No. 1472, 2015 ONCA 206, 47 C.C.L.I. (5th) 246, 384 D.L.R. (4th) 343, 77 M.V.R. (6th) 181, 331 O.A.C. 129, 250 A.C.W.S. (3d) 620, consd

Ontario (Attorney General) v. $25,709.63 Canadian currency (In Rem), [2009] O.J. No. 859, 176 A.C.W.S. (3d) 129, 2009 9434 (S.C.J.), distd

Other cases referred to

Al Awadi v. 617964 Ontario Ltd., 2015 ONSC 6400; Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.); Chatterjee v. Ontario (Attorney General), [2009] 1 S.C.R. 624, [2009] S.C.J. No. 19, 2009 SCC 19, 249 O.A.C. 355, 387 N.R. 206, 242 C.C.C. (3d) 129, 304 D.L.R. (4th) 513, EYB 2009-157414, J.E. 2009-760, 65 C.R. (6th) 1; Ontario (Attorney General) v. 20 Strike Avenue Bowmanville Ontario (PIN #26932-0115 (L.T.) (In Rem) (2014), 120 O.R. (3d) 377, [2014] O.J. No. 2356, 2014 ONCA 395, 373 D.L.R. (4th) 346, 311 C.C.C. (3d) 239, 322 O.A.C. 31, 240 A.C.W.S. (3d) 378, 114 W.C.B. (2d) 655; Ontario (Attorney General) v. 51 Taylor Avenue, [2012] O.J. No. 5804, 2012 ONSC 6355 (S.C.J.); Ontario (Attorney General) v. $1,650 in Canadian Currency (In Rem), [2008] O.J. No. 2076 (S.C.J.); Ontario (Attorney General) v. 8477 Darlington Crescent, [2011] O.J. No. 2122, 2011 ONCA 363, 279 O.A.C. 268, 269 C.C.C. (3d) 159, 333 D.L.R. (4th) 326, 202 A.C.W.S. (3d) 505, 95 W.C.B. (2d) 520; Ontario (Attorney General) v. $9,475 in Canadian Currency (In Rem), [2014] O.J. No. 2990, 2014 ONSC 3711, 115 W.C.B. (2d) 162, 242 A.C.W.S. (3d) 822 (S.C.J.); [page163] Ontario (Attorney General) v. $9,616.98 in Canadian Currency (In Rem), [2011] O.J. No. 2977, 2011 ONSC 3820, 282 O.A.C. 146, 337 D.L.R. (4th) 719, 204 A.C.W.S. (3d) 58, 95 W.C.B. (2d) 629 (Div. Ct.); Ontario (Attorney General) v. $14,700.00 in Canadian Currency (In Rem), [2016] O.J. No. 603, 2016 ONSC 910 (S.C.J.); Ontario (Attorney General) v. $43,120 in Canadian Currency (In Rem), [2011] O.J. No. 2546, 2011 ONSC 3076 (S.C.J.); R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, 68 C.R. (6th) 201, 254 O.A.C. 9, 246 C.C.C. (3d) 301; R. v. G. (M.), 1994 8733 (ON CA), [1994] O.J. No. 2086, 73 O.A.C. 356, 93 C.C.C. (3d) 347, 24 W.C.B. (2d) 643 (C.A.); R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36, 114 D.L.R. (4th) 419, 166 N.R. 245, J.E. 94-778, EYB 1994-67655, 71 O.A.C. 241, 89 C.C.C. (3d) 402, 29 C.R. (4th) 243, 23 W.C.B. (2d) 385; White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, 2015 SCC 23, 18 C.R. (7th) 308, 470 N.R. 324, 383 D.L.R. (4th) 429, 67 C.P.C. (7th) 73, 360 N.S.R. (2d) 1, 2015EXP-1385, J.E. 2015-767, EYB 2015-251384, 251 A.C.W.S. (3d) 610

Statutes referred to

Civil Remedies Act, 2001, S.O. 2001, c. 28, ss. 1(b), (c) [as am.], 2 [as am.], 3(1), (3), 7 [as am.], 8(1), (3), 16, 17(2)

Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1), 5(1)

Courts of Justice Act, R.S.O. 1990, c. C.43 [as am.]

Criminal Code, R.S.C. 1985, c. C-46, s. 354(1)

Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), ss. 238 [as am.], 239 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1.1), 4.1.01, 52.10, 53, 53.03

APPLICATION for a forfeiture order.

Jean Marie Dixon, for applicant.

Colin Bondy, for Omar Nizam.

BONDY J.: —

A. Background

[1] This was an application by the Attorney General of Ontario ("Ontario") for an order of forfeiture to the Crown in right of Ontario of $18,550 in Canadian currency and $930 in United States ("US") currency (the "currency" or the "money") pursuant to ss. 3(1) and 8(1) of the Civil Remedies Act, 2001, S.O. 2001, c. 28, as amended ("CRA"). For the reasons which follow, I find that Ontario has demonstrated on a balance of probabilities that the application ought to be granted.

[2] By way of background, on January 31, 2013, Constable Dave Kellam ("Constable Kellam") and Constable Sean Nicholson ("Constable Nicholson") of the Windsor Police Service were on routine patrol in a fully marked cruiser. At approximately 2:35 a.m., they noticed a black 2010 Jeep, bearing licence plate [page164] [plate number omitted] (the "Jeep"), accelerate away from the north curb of Ottawa Street, just west of the Rockhead Bar. Because of the fashion in which the Jeep was being driven, they performed a traffic stop.

[3] According to their affidavits filed in support of this application, Constable Kellam approached the driver side of the Jeep and Constable Nicholson the passenger side. All of the windows in the Jeep were then up. The Jeep was occupied by one individual, Omar Nizam ("Mr. Nizam"). It is common ground that the Jeep was owned by Mr. Nizam's uncle, Hassan Nizam ("Hassan"), and not by Mr. Nizam.

[4] Constable Kellam deposed that immediately upon opening the driver's side window he detected a "strong odour of fresh marijuana" and that he so informed Mr. Nizam. Mr. Nizam then stated that he had "smoked a joint earlier with friends". Constable Kellam informed Mr. Nizam that the odour he detected was not burnt marijuana but fresh marijuana. Mr. Nizam then advised the officer that he still had marijuana in the car. He produced a small resealable bag containing 3.2 grams of marijuana from his front pants pocket. Mr. Nizam was then charged with possession of marijuana contrary to s. 4(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA") and his person was searched incident to that arrest.

[5] The search of Mr. Nizam's person also revealed two Percocet tablets and a Viagra tablet. In that search, currency consisting of CDN$1,730 and US$690 was also discovered in Mr. Nizam's right front pants pocket.

[6] Mr. Nizam initially maintained that he works at an accounting office and as a result carries large amounts of cash on his person. Constable Kellam then informed Mr. Nizam that he was being re-arrested for trafficking in narcotics. Constable Kellam also informed Mr. Nizam that he believed more drugs would be found in the Jeep and accordingly a search would be conducted of the vehicle incident to arrest.

[7] A short time later, Mr. Nizam resiled from the position that the money on his person was in relation to his job in an accounting office, and instead claimed that the money in his pocket had been won at the casino. Constable Kellam deposed that he did not believe that Mr. Nizam had been at the casino because it contradicted his earlier statement that he had been at the Rockhead Bar with friends that evening.

[8] A K-9 unit was then called to search the interior of the Jeep.

[9] Prior to the arrival of the K-9 unit, Constable Nicholson began searching the interior of the Jeep. Constable Nicholson [page165] deposed that notwithstanding the fact that Mr. Nizam had exited the Jeep several minutes before and left the driver's window down, he could still smell a strong odour of fresh marijuana inside the Jeep. Constable Nicholson informed Constable Kellam that he had located a large quantity of rolled Canadian currency in the hollow area below the removable tray in the Jeep's center console. A total of 17 bundles of currency primarily in $20 bills totalling CDN$16,700 and US$240 were found in this location. According to Constable Nicholson, the smell of raw marijuana remained in the vehicle even after the marijuana in Mr. Nizam's pocket and money had been removed from the vehicle.

[10] Mr. Nizam was initially silent when asked where the cash found in the vehicle console was from. He then claimed that he did not know where that money had come from. He shortly resiled from that position and stated that he believed the money belonged to his uncle Hassan, who operates a produce company. I reiterate the Jeep Mr. Nizam was driving belonged to his uncle Hassan. Constable Kellam asked Mr. Nizam if his uncle would leave that amount of money inside the vehicle. Mr. Nizam stated that his uncle would just park the Jeep at the rear of his house and the money would be okay there.

[11] It was Sergeant John Virban ("Sergeant Virban") who, with his dog PSD Ouza, conducted the K-9 search of the vehicle. Prior to conducting the search he asked that the money, which was then still in the Jeep, be removed. Once deployed into the interior of the Jeep, the dog "indicated" at the center console of the Jeep. I reiterate that this was where the bundles of currency had been located. The dog also "indicated" at the gear shifter side pocket. Sergeant Virban deposed that when PSD Ouza "indicates", it means that the dog has detected the odour of a controlled substance.

[12] The total cash discovered on Mr. Nizam's person and in the vehicle was CDN$18,550 and US$930. It is this money which is the subject of this application.

[13] On April 4, 2013, Detective Constable Ronald Grossett ("Detective Constable Grossett") sent a submission to the reviewing authority asking that the Attorney General consider commencing a civil forfeiture proceeding. His evidence is further considered below.

[14] On June 5, 2013, the Attorney General issued the notice of application.

[15] On July 3, 2013, Mr. Nizam ultimately pled guilty to possession of marijuana contrary to s. 4(1) of the CDSA. He received a discharge. The trafficking charge was withdrawn. [page166]

[16] On August 22, 2013, the Attorney General served Mr. Nizam with a copy of the notice of application.

[17] On September 10, 2013, the applicant sought and obtained a preservation order under the CRA preserving the currency pending the disposition of this forfeiture application.

[18] On October 8, 2013, the Windsor Police Service deposited the currency with the accountant of the Superior Court of Justice ("accountant") per the terms of the preservation order.

[19] There was no suggestion from respondent's counsel that any of the above facts were either incorrect or unreliable. In considering the evidence of Constables Kellam and Nicholson, I found none of that evidence to be either internally inconsistent or inconsistent with the other evidence that I believed. Accordingly, I found the evidence of Constables Kellam and Nicholson both credible and reliable.

B. Opinion Evidence

1) Introduction

[20] The Crown sought to introduce the opinion evidence of four police officers.

[21] I begin by repeating my observations regarding expert opinion evidence set out in Al Awadi v. 617964 Ontario Ltd., 2015 ONSC 6400, at paras. 6-8 ("Al Awadi"):

Expert evidence is opinion evidence and therefore presumptively inadmissible. The burden of proof is upon the party seeking to admit the evidence and it is to be satisfied on the balance of probabilities.

There are three necessary steps when considering the admissibility of expert evidence. They are:

a) identifying the scope and purpose of the evidence;

b) the examination of the threshold requirements for admissibility; and

c) the discretionary gatekeeping step.

To be clear, admissibility of expert evidence is not an all or nothing proposition. "The trial judge may admit part of the proffered testimony, modify the nature or scope of the proposed opinion, or edit the language used to frame that opinion".

See R. v. Abbey (2009), 97 O.R. (3d) 330, [2009] O.J. No. 3534, 2009 ONCA 624, at para. 63.

[22] As said, at para. 12 of Al Awadi, one of the threshold requirements for admissibility of expert opinion advice is the witness' willingness and ability to provide impartial, independent and unbiased evidence: see R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36; and White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 S.C.R. 182, [2015] S.C.J. No. 23, 2015 SCC 23, at paras. 23 and 32. [page167]

[23] In this case, neither officer had filed Form 53 affidavits acknowledging the duties set out in rule 4.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, under the Courts of Justice Act, R.S.O. 1990, c. C.43, including impartiality, independence and lack of bias. Counsel for the respondent Mr. Nizam sought to exclude their evidence. I made rulings prior to commencement of argument on the motion as to the admissibility of the evidence of each officer. I advised counsel that written reasons for those rulings would be provided later. These are my reasons for those two rulings.

2) The evidence of Acting Sergeant Robert Hawkes

[24] Ontario sought to qualify Acting Sergeant Robert Hawkes ("A/S Hawkes") as an expert, and introduce a report completed by him and dated April 4, 2014 (the "April report"). That is notwithstanding, as said above, the requisite Form 53 affidavit was not served and filed. For the following reasons, I ruled in favour of its admission.

[25] I begin with the observation that I find the failure to provide the affidavit was a matter of oversight. I say that because there had been three drafts of the same report and the appropriate Form 53 affidavit had accompanied the first two. Ontario's counsel maintained that she had been advised by A/S Hawkes, and that she believed, that the Form 53 affidavit had been signed and delivered with the third copy of the report at the time the original April report had been delivered to her office. She believed that the page containing the Form 53 affidavit had inadvertently gone missing in the copying process.

[26] Ontario sought to introduce a prior version of the report dated March 24, 2014 (the "March report"), which was accompanied by the requisite Form 53 affidavit. It was essentially identical to the April report with the exception of minor corrections for grammar and spelling.

[27] Mr. Nizam's counsel opposed the introduction of that earlier version of the report for several reasons. The first is that the court file numbers on the March report and the accompanying Form 53 affidavit not only differed from each other, but also with the court file number for this matter. The second is that the copies that were originally to be filed were photocopies and not originals. The third is that the March report had never been served and filed. [page168]

[28] I found the March report and accompanying Form 53 affidavit admissible to support the April report. I found the April report admissible on that basis. These are my reasons.

[29] The first is that prior to the end of argument, Ontario's counsel was able to produce and file the original March report and accompanying Form 53 affidavit.

[30] The second is that the expert report is necessary to Ontario's case. Ontario relies heavily upon it and the inability to admit the report would significantly adversely impact their case. The truth-seeking function of the court and proportionality both favour its admission: see rule 1.04(1.1).

[31] The third is that there was no suggestion that the information in the report was not reliable. Consistent with that observation, A/S Hawkes had been cross-examined on the affidavit by Mr. Nizam's counsel. Accordingly, I find that the reliability of the report favours its admission.

[32] The fourth is that there was no mention of the missing Form 53 affidavit until the motion was about to be heard. Although I was not apprised as to when Mr. Nizam's counsel had first noticed the affidavit was missing, fairness requires that Ontario be given an opportunity to prove the document. In the circumstances, I find it appropriate to exercise my discretion pursuant to rule 52.10 in that regard.

[33] The fifth is that there was no indication of any meaningful prejudice to Mr. Nizam which would result from allowing Ontario to introduce the Form 53 affidavit contained in the March report in support of the admission of the April report. I reiterate, Mr. Nizam and his counsel had both seen and cross-examined A/S Hawkes on the April report. I reiterate the only differences between the two were minor grammatical and spelling changes. This factor favours admission.

[34] The sixth is that I am aware the court file number on the March report and Form 53 affidavit differ from each other, and also both differ with the court file number in this matter. Ontario's counsel suggested that the inconsistency was likely caused by a typographical error resulting from the author having reused templates from another file. I find that explanation likely correct given that the March report clearly relates to the same fact situation as this file. In any event, I cannot think of any prejudice flowing from that discrepancy nor were any suggested to me. This factor favours admission.

[35] For all of these reasons, I find it appropriate to admit the March report and accompanying Form 53 affidavit in support of the admission of the April report, and to admit the April report on that basis. [page169]

[36] As to qualifying A/S Hawkes as an expert, he has been a police officer for 26 years and has been attached to the Intelligence Service Branch of the Durham Regional Police Service since 2005. He has also, since 2005, been assigned to the Provincial Asset Forfeiture Unit ("AFU"), whose mandate is to seize, restrain and forfeit the proceeds of crime and investigate money-laundering activities. A/S Hawkes is also a member of the Association of Certified Anti-Money Laundering Specialists ("ACAMS"), whose mission is to advance the professional knowledge, skills and experience of those involved in the detection and prevention of money laundering throughout the world. He has completed courses related to general investigative techniques; money packaging; drug pricing; cash seizures; and drug and proceeds of crime investigations. A/S Hawkes is also a regular lecturer at the Ontario Police College, the Toronto Police College and the Canadian Police College, where he provides training on the proceeds of crime, offences related to property, money couriers, money laundering and large currency seizures. A/S Hawkins also has several years of experience investigating offences under the CDSA as a warrant writer and lead investigator. He is familiar with the price structure associated to cannabis and cocaine tainted products.

[37] Mr. Nizam's counsel did not suggest A/S Hawkes was not qualified to give expert evidence as to the matters addressed in his report; he only objected to the lack of a Form 53 affidavit.

[38] On the basis of the evidence before me, I find it appropriate to grant Ontario's request to qualify A/S Hawkes as an expert for the purposes set out in his report.

[39] In conclusion, subject to the foregoing, the opinions expressed by A/S Hawkes in his expert opinion report were admitted as expert evidence. The weight to be given to that evidence is more fully considered below.

3) The evidence of Detective Constable Ronald Grossett

[40] Mr. Nizam's counsel argued that the opinion evidence of Detective Constable Grossett is not admissible without the requisite Form 53 affidavit. I agreed with that proposition and ruled against the admission of that evidence for the following reasons.

[41] Detective Constable Grossett is a police officer with the Windsor Police Service. He has, since January 2012, been employed as an investigator with the AFU. His duties primarily involve proceeds of crime and offence-related property. I reiterate that it was Detective Constable Gossett who, on April 4, 2013, [page170] sent a submission to the reviewing authority asking that the Attorney General consider commencing a civil forfeiture proceeding. In other words, Detective Constable Grossett exhibits characteristics consistent with expertise in forfeiture of crime-related assets and uses that expertise to promote the forfeiture of the currency in question.

[42] Counsel for Ontario argued that a Form 53 affidavit is not required by Detective Constable Grossett for two reasons.

[43] The first reason submitted by counsel for Ontario as to why a Form 53 affidavit is not required by Detective Constable Grossett is because he is a "participant expert" or, in the words of the court in Westerhof, "a fact witness". She argued that he was not "engaged by or on behalf of a party" as contemplated in rule 4.1.01: see Westerhof v. Gee Estate (2015), 124 O.R. (3d) 721, [2015] O.J. No. 1472, 2015 ONCA 206, at paras. 6, 14 and 35 ("Westerhof").

[44] At para. 60 of the decision in Westerhof, the court concluded that

. . . a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

-- the opinion to be given is based on the witness's observation of or participation in the events at issue; and

-- the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

(Emphasis added)

[45] The court also concluded that rule 53.03 does not apply to the opinion evidence of a non-party expert based on personal observations for a purpose other than the litigation: see Westerhof, at para. 62 (emphasis added).

[46] I find that the role played by Detective Constable Grossett does not come within the exceptions to rule 53 delineated in that decision.

[47] Unlike the situation anticipated in Westerhof, Detective Constable Grossett acknowledged in cross-examination that he had not based his opinions on personal observations but rather the observations of others. That is important for two reasons. The first and most obvious is the difference in reliability between first-hand and second-hand information as to observations. The second is the role played by the individual making the observations. Westerhof considered the role played by a treating physician. The observations made by a treating physician are made with a view to treatment, and not in preparation [page171] for litigation. As a result, the observations are less likely to be subject to bias and accordingly more likely to be reliable than an observer hired by a litigant to support a particular position during litigation.

[48] I reiterate that it was Detective Constable Grossett who, on April 4, 2013, sent a submission to the reviewing authority requesting that the Attorney General consider commencing a civil forfeiture proceeding. Accordingly, I find there is, at the very least, a reasonable apprehension that Detective Constable Grossett has a vested interest in the outcome of this litigation. He works for the very agency charged with determining the feasibility of asset seizures. In the words of Mr. Nizam's counsel, he works for the same branch of government as the applicant. In summary, I find that his role in this litigation was essentially the same role as an expert engaged by or on behalf of a party, and that the role played by him was that of a "litigation expert[] in disguise": see Westerhof, at para. 174.

[49] The second reason counsel for Ontario argues that a Form 53 affidavit is not required by Constable Grossett is the proposition that the evidence of police officers, when based on their experiential training, is admissible without requiring the evidence to be tendered or admitted as expert evidence. There is a long line of cases supporting that proposition: see Ontario (Attorney General) v. $14,700.00 in Canadian Currency (In Rem), [2016] O.J. No. 603, 2016 ONSC 910 (S.C.J.), at paras. 26 and 27; R. v. MacKenzie, [2013] 3 S.C.R. 250, [2013] S.C.J. No. 50, 2013 SCC 50, at para. 99 ("MacKenzie"); Ontario (Attorney General) v. $9,616.98 in Canadian Currency (In Rem), [2011] O.J. No. 2977, 2011 ONSC 3820 (Div. Ct.), at para. 8 ("Ontario (Attorney General) v. $9,616.98"); and (Ontario) Attorney General v. $9,475 in Canadian Currency (In Rem), [2014] O.J. No. 2990, 2014 ONSC 3711 (S.C.J.), at para. 27 ("Ontario (Attorney General) v. $9,475").

[50] I, however, find that the legal principles expressed in those decisions are not applicable in the facts of this case.

[51] The decision of the Supreme Court in MacKenzie stands for the proposition that the use of the police officer's training is admissible when assessing the objective grounds for reasonable suspicion. The other cases involve opinion evidence of police officers as to drug dealers' conduct. As said above, Detective Constable Grossett acknowledged in cross-examination that his opinions were not based on his personal knowledge acquired in the investigation process, but rather based on his review of the record and also discussions with other officers. The only thing [page172] that Detective Constable Grossett had personal knowledge of was the cash count, which he did "hands-on".

[52] In summary, each of the cases referred to by counsel for Ontario involves police officers who formed opinions which were founded, at least in part, upon personal observations made during the course of an investigation and/or arrest. The opinions formed by Detective Constable Grossett were formed in the process of building a case for the seizure of the currency found in the Jeep being driven by Mr. Nizam. For the reasons above, I find that his role in this litigation was essentially the same role as an expert engaged by or on behalf of a party, and accordingly, as said above, a Form 53 affidavit is a prerequisite to its admission as opinion evidence: see Westerhof, at para. 60.

4) The evidence of Constables Dave Kellham and Sean Nickleson

[53] Respondent's counsel objected to Ontario's reliance on the evidence of Constables Kellham and Nickleson in relation to the smell of "raw marijuana" within the vehicle. I make the following observations with respect to that evidence.

[54] As said above, the decision of the Supreme Court in MacKenzie stands for the proposition that the use of the police officer's training is admissible when assessing the objective grounds for reasonable suspicion. In this case that reasonable suspicion was a component of the grounds for Mr. Nizam's arrest and re-arrest. Importantly, there was no constitutional challenge to the validity of that arrest. Further, the veracity of that evidence as to the smell of raw marijuana was never challenged in the criminal proceedings.

[55] I do agree with respondent counsel's assertion that the evidence as to the smell of raw marijuana would have benefited from evidence as to the particular police officer's experience and training in that regard. I, however, find in the circumstances of this case that this failure goes to weight rather than admissibility. I reiterate that the evidence was unchallenged. There was no evidence to suggest the smell of raw marijuana was not present. The conclusion of the officers was in harmony with the preponderance of evidence in that regard including, without limitation, the evidence relating to the drug-sniffing dog. Finally, respondent's counsel elected to refrain from cross-examining the two police officers as to the basis for and reliability of those opinions.

[56] For all of these reasons, I find the evidence admissible to support the proposition that the inside of the Jeep smelled of [page173] raw marijuana that night and also to support the reliance upon that evidence by A/S Hawkes. The evidence of A/S Hawkes in that regard is more fully considered below. To be clear, given the lack of evidence as to the police officers' experience and training, the evidence of Constables Kellham and Nickleson in isolation may have been insufficient to demonstrate that important point. It was, however, unnecessary for me to make that decision given the totality of the evidence in that regard.

C. Analysis

[57] There were two issues before me today:

(1) whether the currency is proceeds of unlawful activity and/ or an instrument of unlawful activity within the meaning of the CRA; and

(2) if the currency is proceeds of unlawful activity and/or an instrument of unlawful activity under the CRA, whether relief from forfeiture ought to be granted.

[58] Forfeiture proceedings pursuant to the CRA are initiated by an application or action under the ordinary civil rules of the province. Proceedings are taken in rem against the property itself and can be initiated without joining the owners or possessors as defendants: see Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1 S.C.R. 624, [2009] S.C.J. No. 19, at para. 21 ("Chatterjee"). The stated purposes of the CRA, which apply to this fact situation, are preventing persons who engage in unlawful activities and others from keeping property that was acquired as a result of unlawful activities. The Act's purpose is also to prevent property from being used to engage in certain unlawful activities: see CRA, s. 1(b) and (c).

[59] The CRA does not require an allegation or proof that a particular person committed a particular crime: see Chatterjee, at para. 46. An offence may, however, be found to have been committed even if no person has been charged with the offence; or a person was charged with the offence but the charge was withdrawn or where the person was acquitted of the charge: see CRA, s. 17(2).

[60] The burden of proof is on the Crown: see Ontario (Attorney General) v. 51 Taylor Avenue, [2012] O.J. No. 5804, 2012 ONSC 6355, at para. 3. The standard of proof is upon a balance of probabilities: see CRA, s. 16.

[61] I will review the facts of this case as against those principals. [page174]

1) Is the currency proceeds and/or an instrument of unlawful activity under the [CRA](https://www.canlii.org/en/on/laws/stat/so-2001-c-28/latest/so-2001-c-28.html)?

a) Introduction

[62] "Unlawful activity" is defined as "an act or omission that is an offence under an act of Canada, Ontario, or another province or territory of Canada": see CRA, ss. 2 and 7.

[63] "'Proceeds of unlawful activity' means property acquired, directly or indirectly, in whole or in part, as a result of unlawful activity, whether the property was acquired before or after this Act came into force, but does not include proceeds of a contract for recounting crime within the meaning of the Prohibiting Profiting from Recounting Crimes Act, 2002 [S.O. 2002, c. 2]": see CRA, s. 2.

[64] "'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 CRA, s. 7.

[65] The applicant is relying upon the following legislative provisions as the requisite underlying unlawful act.

(1) subsection 354(1) of the Criminal Code, R.S.C. 1985, c. C-46: possession of property obtained by crime;

(2) subsection 4(1) of the CDSA: possession of a Schedule II substance, namely, marijuana;

(3) subsection 5(1) of the CDSA: trafficking of the Schedule II substance, namely, marijuana; and

(4) sections 238 and 239 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.): making false statements on a tax return or evading payment for compliance with the Act.

[66] The Crown relies primarily on the following indicia:

(1) Mr. Nizam was found to be in possession of CDN$18,500 and US$930 while operating a vehicle not registered to him. Drug dealers often use rental or borrowed vehicles in order to minimize loss, i.e., so that if they are stopped by the police they do not run the risk of losing the cash/ drugs and their vehicles;

(2) the currency was found in proximity to drugs, and Mr. Nizam pled guilty to possession of marijuana in relation to this incident; [page175]

(3) consistent with money derived from or intended for unlawful activity the CDN$18,550 and US$930 was bound together using elastic bands into standardized amounts;

(4) the vast majority of the currency consisted of $20 banknotes, which is the most common denomination for street-level drug transactions;

(5) a high volume of $20 bills amongst money seized is an indicator of the currency's origin in drug trafficking;

(6) at the time of his arrest, Mr. Nizam gave unreasonable and deceitful accounts regarding the origin of the subject property, and denied ownership and knowledge of the bulk of the currency seized from his Jeep;

(7) during cross-examination, Mr. Nizam gave unreasonable and capricious accounts regarding the subject property and his employment history;

(8) documents that Mr. Nizam served on the Attorney General, pursuant to undertakings, indicate that the subject currency is not from lawful earnings/source(s);

(9) Mr. Nizam does not meet the definition of a legitimate and responsible owner, and accordingly, cannot rely on these exceptions to forfeiture; and

(10) there are no "clearly in the interests of justice" factors supporting relief from forfeiture.

b) The indicia of drug trafficking

[67] A/S Hawkes formed the opinion that the CDN$18,550 and US$930 is the payment for illegal drugs (marijuana) that have already been sold, and thus is the proceeds of the illegal activity. It was his opinion that the currency was proceeds from a street to mid-level drug trafficker.

[68] His opinion is based on, but not limited to, a number of facts or findings. I find that inferences flowing from the evidentiary basis relied upon by A/S Hawkes provides a strong case that the currency was likely the proceeds of or an instrument of unlawful activity. Accordingly, I agree with A/S Hawks' conclusions. That evidence is as follows:

(1) the amount, packaging, manner of storage and circumstances surrounding the discovery of the seized cash suggests that it is associated with drug trafficking or another profit-motivated unlawful activity. A/S Hawkes explained that financial institutions do not dispense large bundles of [page176] cash in mixed denominations bound with elastics. That is because elastics cause damage to the bills and shorten their life span;

(2) cash derived from financial institutions or casinos are not bundled using elastic bands. However, "elastic band" bundling is consistent with the packaging practices of persons engaged in illegal transactions, such as drug dealing;

(3) of the 17 bundles of currency, 13 are exactly $1,000 which is indicative of cash connected with street to mid-level drug dealers. Such bundling is used in profit-motivated criminal activity so that the currency can be easily counted and identified;

(4) the large amount of $20 bills is significant (723 in total, which is consistent with mid to street-level trafficking). The $20 bill is the denomination most utilized in the process of illicit drugs by drug use, particularly the half ounce to ounce (gram/multi-gram) level, all the way up to pound purchases. Also, the presence of $5 and $10 bills is consistent with street-level trafficking;

(5) the positive indication of the drug dog on the outside and interior of the Jeep;

(6) the certificate of analysis demonstrates that Mr. Nizam was in possession of marijuana. Although Mr. Nizam was only found to be in possession of 3.2 grams of marijuana, the strong odour of fresh marijuana detected by Windsor Police Service constables upon approaching the Jeep, along with the positive "indication" of the drug dog, suggests that Mr. Nizam transported or delivered a significant quantity of marijuana;

(7) Mr. Nizam was deceitful in addressing the origins/ ownership of the subject property (the currency), and attempted to distance himself from it, by indicating, "it is not mine";

(8) it is not an economically sound or safe decision in terms of security for someone to store large amounts of currency in a vehicle. However, people in possession of currency derived from profit-motivated criminal activities, such as drug trafficking, will seldom employ conventional banking and/or business practices, as doing so would risk alerting the authorities; [page177]

(9) the characteristics of the currency were not in keeping with Bank of Canada policies and data/reports about Canadian transactions;

(10) this was a large cash transaction that was outside of traditional and safe financial circles; and

(11) it is not an economically sound or safe decision in terms of security for one to store large amounts of currency in a vehicle.

[69] As to the marijuana seized that evening and the smell of fresh marijuana in the vehicle that evening, I make the following observations. According to the evidence filed, a gram of marijuana sells on the street for about $10. As a result, I find that the 3.2 grams of marijuana in Mr. Nizam's possession had a street value of about $32. I make two observations as to that marijuana. The first is that I did not consider this to be the crime to which the currency seized that evening was related. The second is that I agree with the conclusion of A/S Hawkes that the strong odour of raw marijuana described by the arresting officers is consistent with a much larger quantity of marijuana. I also observe that one of the two locations of illicit drugs indicated by the dog was the same location in which the currency had been located. Again, that is inconsistent with the smell indicated by the dog being from the 3.2 grams of marijuana which Mr. Nizam had in his pocket.

[70] In cross-examination, A/S Hawkes made a number of concessions which respondent's counsel maintains are inconsistent with his ultimate conclusion that the currency was proceeds from street to mid-level trafficking. The following are examples. First, A/S Hawkes acknowledged that it is plausible that people who carry large sums of money on them would want to know very quickly how much money that they have, so would bundle it in that fashion. Second, A/S Hawkes also conceded that it is possible that the money had been packaged in that manner so that Mr. Nizam would be able to determine quickly how much money that he had. Third, A/S Hawkes agreed with a suggestion from respondent's counsel that "elastics are used to hold things together" -- in this case, money.

[71] I do not find the concessions made by A/S Hawkes are in any way determinative of the issue of whether Mr. Nizam was involved in drug trafficking on the night in question. A/S Hawkes also testified that in his experience persons in legitimate businesses do not carry large amounts of cash bundled in that fashion. Also, the acknowledgment that it is possible that [page178] people carry large sums of money bundled in that fashion does not detract from the evidence of A/S Hawkes that it is an indicia of drug trafficking. To be clear, in isolation that single factor would no doubt be insufficient to prove Ontario's case. However, A/S Hawkes' conclusions are based on the totality of the indicia of drug trafficking. My comments also apply to the second and third examples raised by respondent's counsel.

[72] For these reasons, I find the evidence of Constable Kellam, Constable Nicholson, and A/S Hawkes provide a strong case that Mr. Nizam was likely involved in drug trafficking that evening and that the currency involved was related to that drug trafficking. Accordingly, I find that evidence provides a strong case that the currency was both proceeds of that unlawful activity and an instrument of that unlawful activity.

c) Mr. Nizam's lack of a criminal record

[73] There was consensus that Mr. Nizam did not have a criminal record at the time the currency was seized.

[74] When A/S Hawkes was asked in cross-examination whether the lack of a criminal record impacted on his conclusion as to whether the money was proceeds of crime, he answered "no". Respondent's counsel maintained that position was inconsistent with the case law. He relies upon the decision in Ontario (Attorney General) v. $10,000 in Canadian Currency (In Rem), [2014] O.J. No. 653, 2014 ONSC 944 (S.C.J.) [Ontario (Attorney General) v. $10,000], where at paras. 16-20, Ellies J. concludes that a respondent's criminal record is admissible and may be probative as similar fact evidence in proceedings under the CRA.

[75] I disagree with the proposition put forth by respondent's counsel. There are several reasons.

[76] I begin by agreeing with the general proposition that there are cases in which the existence of a criminal record may tend to support a finding that currency is proceeds of unlawful activity and/or an instrument of unlawful activity. I, however, disagree that it necessarily follows that the lack of a criminal record is conclusive that currency is not the proceeds of unlawful activity and/or an instrument of unlawful activity.

[77] Each case is fact dependent. As A/S Hawkes testified, every criminal has to start somewhere. The relevance of a criminal record will necessarily depend on a number of factors including, for example, the level of the particular trafficker in the overall scheme. In this case A/S Hawkes did not find the criminal record to be a factor weighing for or against Mr. Nizam. He observed that "higher-level guys" try to use persons who do not [page179] have criminal records so that "they won't draw flags when driving from one location to the other".

[78] I find A/S Hawkes' treatment of the lack of a criminal record appropriate in the circumstances.

d) The exclusion of evidence from the files of the insurance company from whom Mr. Nizam received income replacement benefits

[79] Counsel for Ontario sought to introduce evidence from files of the insurance company from which Mr. Nizam had received income replacement benefits. Those files had been obtained by Ontario through an answer to undertakings in questioning. The stated purpose for the introduction of that evidence was to impeach the credibility of Mr. Nizam.

[80] Respondent's counsel sought to exclude that evidence on the basis that its admission would offend the rule in Browne v. Dunn (1893), 1893 65 (FOREP), 6 R. 67 (H.L.). Simply put, that rule requires a party who seeks to impeach the credibility of a witness to put the contradictory material to the witness so that the witness will have a chance to explain apparent contradictions. In this case, that was not done. If Ontario wished to impeach the credibility of Mr. Nizam based upon that evidence, it was incumbent upon them to seek re-examination. Ontario ultimately conceded in reply that they would not rely upon that evidence to impeach Mr. Nizam's credibility.

[81] Accordingly, I did not consider any of the evidence relating to the relationship between Mr. Nizam and the insurance company from the standpoint of impeachment of his credibility.

e) The reliability and credibility of the evidence of Mr. Nizam and those who filed affidavits in support of him

[82] For the reasons which follow, I concluded that the evidence of Mr. Nizam and those who filed affidavits in his support lacked credibility. I found the evidence of each to be often internally inconsistent, often far-fetched and often lacking in plausibility or defying common sense. I also found that the evidence of each often lacked harmony with the propensity of evidence that I did believe. My reasons for those conclusions are more fully considered below.

f) Mr. Nizam's position as to the various previous explanations given for the cash

[83] "Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between [page180] what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not": see R. v. G. (M.), 1994 8733 (ON CA), [1994] O.J. 2086, 73 O.A.C. 356 (C.A.), at para. 23.

[84] I reiterate that Mr. Nizam gave several irreconcilable explanations for the currency at different points in time. Mr. Nizam first maintained that the currency found in his pocket was related to his job in an accounting office. He later stated that he had won that money at a casino. When the cash was found inside the Jeep, he first indicated that he was unaware of whom the money belong to. He then claimed that it belonged to his uncle, Hassan, who was in the produce business.

[85] In his affidavit filed in support of this motion, Mr. Nizam now claims that the currency at issue is a portion of his $25,000 in savings. That issue is considered below.

[86] In his affidavit filed in support of this application, Mr. Nizam now claims that he gave the various inconsistent explanations for the currency because he believed that it was an offence to carry more than $10,000.

[87] That explanation, however, lacks harmony with the evidence. I reiterate that Mr. Nizam gave two different and irreconcilable explanations for the $2,420 discovered in his pocket. He did not make any mention of that currency being savings. That amount of money is clearly less than $10,000 and, accordingly, a belief that it is an offence to carry more than $10,000 would not constitute a reason for him to lie to the police at that point in time. The currency in excess of $10,000 had not been found in the Jeep until sometime after both of those representations had been made to police. Accordingly, I do not accept that explanation.

[88] I reiterate that the final explanation for the currency put forth by Mr. Nizam that evening was he thought the money might belong to his uncle. When asked if his uncle would leave this much money inside the vehicle, Mr. Nizam told the police that his uncle would just park the Jeep at the rear of the space and the money would be okay there. I make two observations regarding that proposition. The first is that storing that amount of money in a Jeep left behind his uncle's house lacks common sense. The second is that Mr. Nizam's uncle Hassan steadfastly denied the money was his as had been claimed by Mr. Nizam.

g) Mr. Nizam's current explanation for the cash

[89] In his application record, Mr. Nizam now claims that the currency at issue was a portion of $25,000 in cash that he had saved as of January 2013.

[90] Mr. Nizam lives with several of his relatives at a home in Windsor which is owned by his father. He claims that his needs [page181] are modest because he does not pay rent, that he does not have many day-to-day living expenses, and that he does not own a motor vehicle, and accordingly was able to save the money.

[91] According to Mr. Nizam, during the relevant time frame he had multiple sources of income which contributed to the savings, including

(1) $721.88 biweekly in income replacement benefits from Intact Insurance ("Intact") as a result of a motor vehicle accident (for a total of $29,947.08);

(2) income from his music business 1Dream. According to Mr. Nizam, this income is generally received in cash. Elie Aoen ("Elie") deposed that Mr. Nizam has in the past provided services to him for which she has paid anywhere from $200-$2,000 per arrangement. Elie's evidence is further considered below; and

(3) a $7,000 loan from his uncle, Fadi Nizam ("Fadi"), to assist in opening a music studio. Fadi provided an affidavit purporting to corroborate Mr. Nizam's evidence. Fadi's evidence is further considered below.

[92] Mr. Nizam maintains that he was not in the habit of storing his savings in a bank account. He maintains that although he has a bank account which he uses for money transfers, to deposit cheques and for direct deposits, he keeps most of his money at his home or in his father's safe.

[93] Mr. Nizam deposed that at the time of arrest, he was in the process of establishing a physical space for his music business. He had planned to travel to Toronto on February 1, 2013, which was the day after his arrest. According to Mr. Nizam, the cash seized was for the purpose of establishing a physical space for that business. He maintains that the currency had been placed in the Jeep in preparation for that trip.

[94] In support of the existence of his music business, Mr. Nizam filed an Ontario records search confirming that 2337690 Ontario Inc. obtained a master business licence on August 2, 2012 for the business name 1Dream. Counsel agreed that was Mr. Nizam's corporation although there was no evidence as to the shareholders and directors of the corporation.

[95] It was Mr. Nizam's position that there were no documents in existence as to his music business, the purchase which was to take place on February 1, 2013, the transactions in his music business with his friend, Elie, or the loan from his uncle, Fadi. [page182]

[96] The only documentary evidence tendered by Mr. Nizam in support of the various propositions put forth by him were a photocopy of a letter from Intact confirming payment of a total of $29,947.08 in income replacement benefits, a cancelled cheque from Dean A. Hashem in the amount of $14,849.45, and a deposit account history from March 14, 2012 to November 15, 2012.

[97] I did not believe Mr. Nizam's claim to have had $25,000 in cash saved as of January 2013, nor did I believe that he intended to go to Toronto the following day with a view to establishing a physical space for his business and/or buying equipment. The following are my reasons.

[98] The first reason is that it defies common sense that Mr. Nizam would be spending $25,000 to establish a physical space or purchase equipment, but would have no documents regarding the lease/rental arrangement for the physical space or the equipment to be purchased.

[99] The second is that the existence of the corporation conflicts with Mr. Nizam's claim that there are no business records or documents relating to the business whatsoever. Corporations are required to file tax returns just as individuals are. No plausible explanation was given for the failure to produce those corporate records.

[100] The third is that there was no reasonable explanation as to why the money had been put in the Jeep that night rather than the following morning before Mr. Nizam left for Toronto. Common sense dictates that if Mr. Nizam was going to Toronto with almost his entire life savings in cash, he would have waited until the last minute to hide it in the vehicle.

[101] The fourth is that Mr. Nizam was unable in cross-examination to say where his father's safe was located. I do not believe Mr. Nizam would leave $25,000 with his father yet have no idea where the safe, in which the $25,000 was to be stored, was located. It defies common sense to suggest that on each and every occasion on which he had either deposited or withdrawn money from his father's safe that he would not have been in proximity to the safe in which the money was allegedly stored. It also defies common sense that he would not be curious as to the location of such a significant amount of money.

[102] The fifth is that Mr. Nizam's explanation for not storing his money in a bank changed over time. He initially stated that the habit of storing his money at home rather than at a bank was a matter of culture. He later resiled from that position. He acknowledged that he had both a savings and chequing account but that he had not deposited the money in those accounts in order to avoid creditors. [page183]

[103] The sixth is that the bank records produced do not support Mr. Nizam's claim that he kept his money in cash. During at least a portion of the time frame represented by those records, Mr. Nizam's bi-weekly income replacement cheque in the amount of $721.88 was being direct deposited into that bank account. There are only a few cash withdrawals. One of those was a $3,000 cash withdrawal made May 28, 2012 directly after a deposit for $3,055.10 had been made the same day. Mr. Nizam's bank records demonstrate that he was making payments to his cellphone provider, various convenience stores and restaurants, Walmart, Caesars Windsor Hotel and Casino, and other retail establishments. In other words, Mr. Nizam appears to be spending money from that account at about the same rate that he was receiving deposits from Intact.

[104] The seventh is that the cheque from Dean A. Hashem ("Mr. Hashem") in the amount of $14,849.45 is dated February 6, 2014, which is about one year after the seizure of the currency at issue. Accordingly, it is difficult for me to understand any relevance of that cheque to this case. To that I would add that it is a personal cheque and not a business cheque. There is only Mr. Nizam's bald assertion that the cheque was for services that Mr. Nizam claims to have provided to Mr. Hashem. There was no evidence from Mr. Hashem to support that proposition.

[105] The eighth is that, as said above, his claim to have initially lied to the police officers because of the belief that it was a crime to carry more than $10,000 lacks harmony with the evidence. As said above, at the time he concocted the first two stories, the police had not yet discovered currency exceeding $10,000.

[106] The ninth is that I find it difficult to believe that Mr. Nizam would have had significant earnings from the music business yet have no documentary evidence, or evidence from a disinterested third party, to corroborate the existence of that business or the income from it. Mr. Nizam did not produce so much as a text message or e-mail.

[107] The tenth was the manner in which the currency had been segregated and bundled.

[108] The eleventh was that Mr. Nizam's uncle, Hassan, told the police that he has no knowledge of where Mr. Nizam would get that kind of money. He was not aware of any job or work that Mr. Nizam was then currently engaged in.

[109] For all of these reasons, I did not believe Mr. Nizam had $25,000 in cash savings in January of 2013, nor did I believe that he was on his way to Toronto the next day to arrange for physical space and/or purchase equipment for his music business. [page184]

[110] Prior to leaving the issue of Mr. Nizam's evidence, I find it appropriate to consider an objection raised by respondent's counsel. He suggested that the respondent's various inconsistent explanations for the money are akin to post offence conduct and therefore inadmissible. I disagree with that assertion. There are two overarching reasons. The first is that, as said above, this is not a criminal proceeding. The second is that the various statements are not sought to be admitted by Ontario as proof of any of the various versions of the facts given by Mr. Nizam. Rather, they are sought to be introduced to discredit Mr. Nizam's credibility.

The evidence of Hassan Nizam

[111] On February 1, 2013, the police conducted a videotaped interview with Hassan who confirmed that he was the owner of the Jeep and that he allows Mr. Nizam to use it. Hassan also indicated

(1) that he did not leave anything of value in the Jeep;

(2) that the money does not belong to him;

(3) that he does not know where Nizam would get that amount of money;

(4) that Mr. Nizam is stupid to leave $20,000 or even $5,000 in the Jeep;

(5) that the bank deposit bag located in the Jeep belongs to him and that it was for use in his produce business;

(6) that he had made the last bank deposit for his business on the preceding Monday and that he had left the bank bag in the Jeep; and

(7) that Nizam does not work for him or his business and would not have access to the deposits or make deposits for him or the business.

The evidence of Elie Aoun

[112] Elie swore an affidavit on August 14, 2014 in support of Mr. Hassan. In that affidavit he corroborates Mr. Nizam's evidence to the effect that he paid Mr. Nizam $200-$2,000 for his services between two to ten times per year, and that the payments had always been in cash.

[113] I did not believe that evidence for the following reasons.

[114] The first is that Elie was cross-examined on his affidavit. During that cross-examination, he initially corroborated Mr. Nizam's claim that he had paid Mr. Nizam $200-$2,000 for [page185] his services between two to ten times per year. At question 150 of his cross-examination, Elie maintains that he had done two or three performances in each of 2012 and 2013. However, at question 142, he said that as of 2012 and 2013, his music had "kind of slowed down" and that as a result there were "not really" any musical performances in those years. Elie's inability to recall whether there were musical performances in 2012 and 2013 is irreconcilable for a recollection of having paid Mr. Nizam money for his assistance in arranging the performances in those years.

[115] The second is that it is difficult to conclude that he had paid Mr. Nizam any significant amounts of money given the anemic revenues he attributes to his musical performances.

[116] The third is that Elie was unable to give any dates for the performances. I find it difficult to believe that Elie could not remember the date of even one performance that he had given.

[117] The fourth is that he was only able to recall three venues, being Cobo Hall in Detroit, the "Boom Boom" in Windsor, and a third venue in Toronto whose name he could not recall.

[118] The fifth is that Elie was also unable to produce any documents, e-mails, contracts, or other written verification of the arrangements with Mr. Nizam or any of the performances he purports to have given. I am aware that Elie testified that the arrangements with Mr. Nizam had been done by mouth. I, however, find it difficult to believe that there were no contracts with the various venues, or e-mails or text messages, or any other documentation whatsoever as to the engagements that he and Mr. Nizam had been involved in.

The evidence of Fadi Nizam

[119] On August 19, 2014, Fadi also swore an affidavit in support of his nephew. In that affidavit, he deposes that he agreed to lend his nephew $7,000. He also deposed that in late January, he had provided Mr. Nizam with a series of cash payments in $20, $50 and $100 denominations.

[120] I did not believe that evidence for several reasons.

[121] The first is that Fadi purported to have a very close relationship with his nephew and to have known him all his life. Notwithstanding that close relationship, he was unable to say when his nephew had started working in the music industry. He did not know the name of his nephew's music business, and he could not specify its address. In fact, Fadi knew nothing about Mr. Nizam's music business. He had never been to the place of business or attended one of his events.

[122] The second is that Fadi deposed that he had not taken anything into consideration when he loaned his nephew the [page186] $7,000. In other words, he had not considered the security of his loan, the wisdom of his nephew's purported purpose for the loan or anything else. He simply gave his nephew $7,000 in cash. That is notwithstanding that he acknowledged that $7,000 is "absolutely" a lot of money.

[123] The third is that Fadi maintained that there had been no discussion about repayment terms, the type of equipment to be purchased or where Mr. Nizam was going to purchase it.

[124] The fourth is that there was no explanation as to how Fadi himself would have $7,000 in cash to loan his nephew. As observed by A/S Hawkes, there was no supporting documentation produced by Fadi, such as a bank transfer, verifying that he was himself in possession of $7,000 in January of 2013. Only Fadi's bald assertion that he had $7,000 in cash to loan his nephew.

[125] The fifth is that the evidence of Fadi in cross-examination conflicted with his affidavit evidence. In cross-examination he maintained that the cash had been advanced in a single payment. In his affidavit, Fadi swore that there had been multiple advances.

[126] The sixth is that Mr. Nizam was in possession of $19,480 in Canadian and US currency on the night that he was arrested. I reiterate that it is his position that the money was to be used to make purchases the following day related to his music business. In cross-examination, he testified that he had $25,000 in savings, which I observe is enough to meet that budget. It follows that on the evidence before me there was no reason for Mr. Nizam to borrow $7,000 from his uncle.

[127] For all these reasons, I did not believe Fadi when he deposed that he had loaned his nephew Mr. Nizam $7,000.

h) Conclusions as to whether the currency is proceeds of unlawful activity and/or an instrument of unlawful activity under the [CRA](https://www.canlii.org/en/on/laws/stat/so-2001-c-28/latest/so-2001-c-28.html)

Introduction

[128] I reiterate my finding that the evidence of Constable Kellam, Constable Nicholson and A/S Hawkes provide a strong case that the currency involved was related to drug trafficking, and that Mr. Nizam was likely involved in drug trafficking that evening. For those reasons and the reasons below, I conclude that Ontario has satisfied the onus upon it on a balance of probabilities that the currency was proceeds of unlawful activity and also an instrument of unlawful activity under the CRA. In reaching that conclusion, I have considered the evidence of [page187] Constable Kellam, Constable Nicholson and A/S Hawkes both in isolation and in the context of the other evidence, including the evidence of the respondent. I make the following additional observations as to the respondent's evidence.

The currency seized

[129] In situations such as this where a respondent is found with "a very large sum of folded money" in circumstances from which it could be inferred that he was trafficking in drugs, the suspicion that arises from that fact situation requires a "credible and reasonable answer": see Ontario (Attorney General) v. $10,000, at para. 32; and Ontario (Attorney General) v. $1,650 in Canadian Currency (In Rem), [2008] O.J. No. 2076 (S.C.J.). That is because it is a well-known fact that persons involved in illegal drug activity frequently are found carrying large sums of cash for the purpose of purchasing drugs or as proceeds from drug sales: see Ontario (Attorney General) v. $1,650 Canadian Currency (In Rem), at para. 3.

[130] In this case, for the reasons above, I did not find Mr. Nizam's explanation for having such a large amount of currency that evening either credible or reasonable.

The evidence of Mr. Nizam and his uncle and friend

[131] I also observe that subject to my comments above regarding the documentary evidence produced by Mr. Nizam, there was a lack of any objective and independent third-party evidence documenting any reasonable legitimate source for the currency: see Ontario (Attorney General) v. $9,616.98, at para. 6; Ontario (Attorney General) v. 8477 Darlington Crescent, [2011] O.J. No. 2122, 2011 ONCA 363, at para. 45 [("Ontario (Attorney General) v. 8477 Darlington Crescent"); and Ontario (Attorney General) v. $43,120 in Canadian Currency (In Rem), [2011] O.J. No. 2546, 2011 ONSC 3076 (S.C.J.), at para. 12 [("Ontario (Attorney General) v. $43,120")].

The case law

[132] Respondent's counsel relied quite heavily upon the decision in Ontario (Attorney General) v. $25,709.63 Canadian currency (In Rem) (2009), [2009] O.J. No. 859, 2009 9434, 176 A.C.W.S. (3d) 129 (S.C.J.) ("Ontario (Attorney General) v. $25,709.63").

[133] I do agree with his assertion that the above case and this case share many common facts. They include, without limitation, that both respondents were pulled over while driving vehicles, neither had a criminal record, both respondents were found [page188] in possession of only a small amount of marijuana, both were found in possession of a similar amount of currency and that both had claimed the money had come, at least in part, from cash businesses.

[134] I, however, find that case distinguishable for a variety of reasons. They are as follows.

[135] The first is that in Ontario (Attorney General) v. $25,709.63 the respondent maintained that he was making a trip from Edmonton to Montreal to visit his terminally ill father. In that case, the respondent produced documentary evidence showing that his father was hospitalized from October 5 to October 14, 2005, and that his father had died December 9, 2005. I reiterate, no documentary evidence was produced by the respondent in this case to support the existence of a transaction the following day related to his music business, only Mr. Nizam's bald assertion.

[136] The second is that in Ontario (Attorney General) v. $25,709.63, the respondent was driving an un-plated vehicle with an "in transit permit" across Canada. The judge in that case observed that traveling across Canada in that fashion would more likely attract police attention than traveling in a plated vehicle. He found that inconsistent with someone running drug money from Edmonton to Montreal.

[137] The third was that the vehicle in Ontario (Attorney General) v. $25,709.63 contained odd items including luggage and art supplies which was in harmony with the respondent's other evidence as to his destination. In this case, there was nothing else in the vehicle to support Mr. Nizam's claim to be driving to Toronto the following day.

[138] The fourth is that the respondent in Ontario (Attorney General) v. $25,709.63 made no attempt to hide the money when he was pulled over by the police. To the contrary, he told the police where it was located. In this case, I reiterate that Mr. Nizam made no attempt to disclose the money and, when it was found, he took deliberate steps to put distance between himself and the money.

[139] The fifth is that although there were different explanations given as to the source of the money in Ontario (Attorney General) v. $25,709.63, the trial judge did not find those explanations inherently inconsistent. In this case, I reiterate that I found the various explanations given by Mr. Nizam to be inherently inconsistent.

[140] The sixth is that in Ontario (Attorney General) v. $25,709.63 there was documentary evidence of a bank transfer in the amount of $9,744.23 and a withdrawal of $7,000 in cash [page189] from the respondent's bank accounts. There were also bank records confirming $75,000 in term deposits and RRSPs, and $11,200 in a savings account. There was no documentary evidence in the case before me to support Mr. Nizam's claim that he had $25,000 in savings, or that his uncle Fadi had loaned him $7,000, or that he had earned income from his friend Elie. As said above, Mr. Nizam's bank records tended to support the conclusion that he was more or less spending his income from Intact insurance as it was being received.

[141] In summary, although the case has some factual similarities, a significant number of important factors relied upon by the trial judge in that case are not present in this case.

[142] Respondent's counsel also argued that factors in many of the cases referred to by counsel for Ontario were missing in this case. For example, the cocaine residue in the safe referred to in Ontario (Attorney General) v. $43,120, at paras. 8 and 12. As another example, the gardening tools suitable for a marijuana grow operation and garbage bags with traces of marijuana found in the car, and referred to at para. 7 of the decision in Ontario (Attorney General) v. $9,475. I agree with those observations. Each case is, however, different. Each case will depend on its own factual matrix.

Conclusions

[143] For all of these reasons, I conclude that the explanation proposed by Mr. Nizam for the source of the currency is not a credible and reasonable explanation.

[144] I am also satisfied, for the reasons above, the only rational inference which can be drawn from the evidence in this case is that the currency is the proceeds of crime and that the currency is an instrument of unlawful activity which, if not confiscated, would likely be used for the purchase of more drugs.

2) If the currency is proceeds of unlawful activity and/ or an instrument of unlawful activity under the [CRA](https://www.canlii.org/en/on/laws/stat/so-2001-c-28/latest/so-2001-c-28.html), should relief from forfeiture be granted?

[145] Once a finding that the property is proceeds of unlawful activity or instruments of unlawful activity, the justice shall make an order forfeiting that property: see CRA, ss. 3(1) and 8(1), respectively.

[146] That mandatory language is subject to only three exceptions.

[147] The first is that it would clearly not be in the interests of justice: see CRA, at ss. 3(1) and 8(1) (the "interests of justice exception"). The second is protection from forfeiture for legitimate [page190] owners: see CRA, at s. 3(3) (the "legitimate owner's exception"). The third is the responsible owner's exception: see CRA, at s. 8(3) (the "responsible owner's exception").

a) The interests of justice exception

[148] The interests of justice exception is determined by reference to a number of factors. A non-exhaustive list includes

(1) the closeness of the connection between the property and the illegal activity;

(2) the reasonableness of the conduct of the party whose property is the subject of the forfeiture application as it relates to the unlawful activity;

(3) the interplay between the purposes of the CRA and the exercise of the discretion to relieve against forfeiture; and

(4) the value of the property owner's interest in the property compared to the value of the property that is tainted by the unlawful activity.

See Ontario (Attorney General) v. 20 Strike Avenue Bowmanville, Ontario (PIN #26932-0115 (L.T.) (In Rem) (2014), 120 O.R. (3d) 377, [2014] O.J. No. 2356, 2014 ONCA 395, at para. 74; and Ontario (Attorney General) v. 8477 Darlington Crescent.

[149] For the reasons above, I conclude that there was likely a very close connection between the currency and the illegal activity. I conclude that it is the proceeds of unlawful activity in that it was likely the commodity exchanged for drugs. I also find that it is likely an instrument of unlawful activity because, as said above, if the currency is released it will likely be used to purchase more drugs.

[150] As to the second factor, I can think of nothing in this fact situation that would suggest any reasonableness on the part of Mr. Nizam.

[151] As to the third factor, I reiterate that the stated purposes of the CRA which apply to this fact situation are preventing persons who engage in unlawful activities and others from keeping property that was acquired as a result of unlawful activities. It is also to prevent property, including vehicles, from being used to engage in certain unlawful activities: see CRA, at s. 1(b) and (c). It seems to me those purposes would be best served by forfeiture in the circumstances of this case.

[152] As to the final factor, there was no evidence to suggest that the currency belongs to anyone but Mr. Nizam. Accordingly, I find that all of the currency is tainted by the unlawful activity. [page191]

[153] For all of these reasons, I find the interests of justice exception does not apply to the facts of this case.

b) The legitimate owner exception

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

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

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

(c) acquired the property from a person mentioned in clause (a) or (b)[.]"

See CRA, at s. 2.

[155] For the reasons above, I do not believe Mr. Nizam's explanation as to how he came into the possession of the subject currency. I conclude that the currency was likely the proceeds of unlawful activity when it came into Mr. Nizam's possession. I also conclude that Mr. Nizam was likely very deeply involved in that unlawful activity. It follows that he likely knew that the currency was the proceeds of unlawful activity.

[156] Accordingly, I find that the legitimate owner exception does not apply in the circumstances of this case.

c) The responsible owner exception

[157] 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 [page192] to know has facilitated or is likely to facilitate the property being used to engage in unlawful activity[.]"

See CRA, at s. 7.

[158] For the reasons above, I find Mr. Nizam does not fit the definition of a responsible owner. I find that it is likely he knew that the currency was the proceeds of drug-related unlawful activity and that it was an instrument of unlawful activity in that it would be used for the purchase of further drugs for resale.

d) Conclusions as to whether relief from forfeiture be granted

[159] For all of these reasons, I find relief from forfeiture inappropriate in the circumstances of this case.

D. Summary and Conclusion

[160] In conclusion, I am satisfied for the reasons above that the only rational inference which can be drawn from the evidence in this case is that the currency is proceeds of unlawful activity and that the currency is an instrument of unlawful activity.

[161] Finally, I am satisfied that none of the three exclusions apply.

E. Costs

[162] At the beginning of argument, I asked counsel to each presume they were successful in the motion and attempt to agree as to an appropriate all-inclusive amount of costs to be payable to the successful party by the unsuccessful party. Counsel agreed to $2,000, all inclusive. I find that amount appropriate in the circumstances of this case.

F. Order

[163] The application of the Attorney General of Ontario ("Ontario") for an order of forfeiture of $18,550 in Canadian currency and $930 in US currency pursuant to ss. 3(1) and 8(1) of the CRA, as amended, is granted.

[164] Order to go forfeiting $18,550 in Canadian currency and $930 in US currency to the Crown in right of Ontario.

[165] Costs in the amount of $2,000, all inclusive, are payable by the respondent Omar Nizam to the Attorney General of Ontario. Those costs are payable within 30 days.

Application granted.

End of Document