Attorney General of Ontario v. $8,740 In Canadian Currency, 2016 ONSC 3773
Court File No.: CV-15-535107
Date: 2016-06-07
Superior Court of Justice - Ontario
Re: Attorney General of Ontario, Applicant/Moving Party
And:
$8,740 in Canadian Currency (In Rem), Respondent
Before: S.F. Dunphy J.
Counsel: A. Imam, for the Applicant undefended
Heard: June 1, 2016
Reasons for Decision
[1] On June 1, 2016 I dismissed this application for an order pursuant to the Civil Remedies Act, 2001, S.O. 2001, c. 28 forfeiting certain funds seized from a young Somali-Canadian man with reasons to follow. These are those reasons.
[2] There is a difference between suspecting that property may be the proceeds of unlawful activity and proving on a balance of probabilities that it is. Among the purposes of the Civil Remedies Act is removing the profit motive from criminal activity by making property that is the proceeds of unlawful activity subject to forfeiture. However, while the applicant Attorney General does not necessarily bear the burden of establishing precisely what unlawful activity the particular property was the proceeds of, the burden cannot be satisfied by the mere casting of suspicion or speculation that does not rise to the level of proof on the balance of probabilities.
[3] The concept of freedom includes the freedom to be eccentric, the freedom to carry cash instead of paying transaction fees to banks, the freedom to speak ones native language to friends and the freedom to walk the streets while being young, male and black. It includes the freedom to treat police with suspicion, rudeness or even hostility when confronted by them however unwise, suspicious or simply impolite that attitude may appear to others. It is dangerous to assume without substantial evidence that those who do not look, think or act like the majority must have something to hide or be involved in unlawful activity. Freedom is not lightly to be eroded by dispensing with the protections the Legislature enacted in the Civil Remedies Act even where, as here, the unrepresented person from whom the funds were seized has eventually relented and agreed to an order dividing the seized funds without any admission of their allegedly unlawful origin or destination.
Overview and factual background
[4] Shortly after 3 a.m. on May 16, 2015 Toronto Police Services officers responded to a radio call about the sound of gunshots heard near 15 Fort York Blvd. A group of 5 males was spotted near the scene. They were described as "nervous and apprehensive" in police notes. They were also young and black.
[5] Four of the men attempted to enter the nearby building at 15 Brunel Court. Police approached them and they obeyed a command to stop. They were taken into investigative custody and cautioned. They all had Toronto addresses. They were described as "evasive" and refused to cooperate with police. They were observed speaking to each other in a language believed to be Somali. They denied hearing gun shots and would not provide statements. They were, in a word, non-cooperative.
[6] Video evidence not presented to the court and viewed by persons unknown is alleged to have placed these men at 15 Brunel Court "near" the time of the shooting and shell cases were found nearby at 27 Brunel Court. How near the time and how accurate the identification cannot be said. Witnesses who heard the shots were interviewed but provided no descriptions implicating these men. A cab was seen leaving the scene at a high rate of speed. The four men were released shortly after their initial detention and were not charged.
[7] The fifth man observed was seen headed to the nearby intersection of Spadina and Fort York Blvd. There he attempted, unsuccessfully, to flag a cab. He was pursued, captured and arrested as a suspect in the as-yet unverified shooting. Police searched his person and discovered $8,740 in currency in his possession. No other allegedly suspicious items were found during the search.
[8] The man identified himself as Mr. Jabril Abdirahman and gave an address in Edmonton, Alberta. The money found on his person was seized but not counted immediately. Mr. Abdirahman claimed to have made the money working in the oil sands in Alberta but was unable to specify precisely how much money he possessed. He estimated that it was "around" $7,000. Mr. Abdirahman became quite angry and upset at the seizure of the funds. He utilized unflattering colloquial nicknames for the police laced with liberal amounts of profanity. He was uncooperative. He threatened to sue the police and demanded the return of his money. His identity and address were both subsequently confirmed by police. He too was released from custody a short while later and no charges were laid, although police retained the cash they found in his possession. He was quite agitated on being released from custody and loudly protested the seizure of his funds.
[9] Police notes suggest that one of the males was known to have been staying for a time in an "Airbnb" apartment in the building at 15 Brunel Court. Mr. Abdirahman was the only one of the five with an address outside Toronto.
[10] The affidavit of Detective Huber filed in connection with the application suggests that unnamed "TPS officers" determined after further investigation that Mr. Abdirahman and the four other males were "possibly" the intended targets of the shooting. The basis of that opinion has not been shared with the court nor have the names of the officers who formed that opinion. I can attach no weight to such unattributed hearsay.
[11] On May 20, 2015, members of Toronto Police Services counted the funds in the presence of the affiant on this application, a member of the Asset Forfeiture Unit. It is clear that these funds were targeted for possible forfeiture from the time they were seized, although formal civil forfeiture proceedings were not commenced for 90 days.
[12] It was determined that the funds were in a clear plastic bag containing one bundle of $4,800 in bills of $20, $50 and $50 denominations secured together with a single green rubber band together with 197 "loose" $20 bills for a total amount of $8,740.
[13] On May 25, 2015, someone identifying himself as Mr. Abdirahman contacted the police by telephone to demand the return of the money. The caller offered another estimate of the quantify of cash seized and offered a different story as to why he was carrying it. He declined to come to the station to give a statement. The caller advised that he would be hiring a lawyer and demanded the officer's badge number.
[14] On May 28, 2015, a positive indication for controlled substances was allegedly obtained when the currency was tested by a police dog named "Memphis". The video of the test shows the police dog failed to pay any particular attention to the box containing the currency on two passes and then sat in front of it on the third. No expert evidence interpreting the video was offered.
[15] The funds were retained by the police and in July 2015 steps to commence these civil forfeiture proceedings were initiated. The Notice of Application herein was issued on August 25, 2015.
[16] Mr. Abdirhaman has since relocated to Mississauga Ontario. He was not represented at the hearing but signed a form of consent to an order agreeing whereby he would receive $5,000 of the seized funds with the balance to be forfeited.
Issues to be decided
[17] The issue to be decided in this case is whether the Attorney General has satisfied the burden of proof upon it to demonstrate that the seized currency is either "proceeds of unlawful activity" that must be forfeited to the Crown in right of Ontario pursuant to s. 3 of the Civil Remedies Act or "an instrument of unlawful activity" pursuant to s. 8 of the Civil Remedies Act.
Discussion and Analysis
[18] The Civil Remedies Act was considered by the Supreme Court of Canada in the case of Chatterjee v. Ontario (Attorney General), 2009 SCC 19. In determining that the Civil Remedies Act was valid provincial legislation in relation to property and civil rights, Binnie J. determined that the dominant purpose of the Civil Remedies Act "is to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime and to help compensate private individuals and public institutions for the costs of past crime" (at para. 4). These were held to be valid provincial objects.
[19] This application is brought under both section 3 and section 8 of the Civil Remedies Act. Section 3 authorizes forfeiture of property found by the court to be "proceeds of unlawful activity" while s. 8 authorizes forfeiture of found to be "an instrument of unlawful activity".
[20] In both cases, forfeiture is mandatory unless it "would clearly not be in the interests of justice" and subject to the rights of the "legitimate owner" (in the case of s. 3) or the "responsible owner" in the case of s. 8.
[21] The term "unlawful activity" is given a very broad and expansive definition as an act or omission that is an offence under an Act of Canada or another province or territory or that of another jurisdiction if it would also be an offence if committed in Ontario.
[22] The term "proceeds of unlawful activity" is broadly defined to include: "property acquired, directly or indirectly, in whole or in part, as a result of unlawful activity". The term "instrument of unlawful activity is also defined broadly to include "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".
[23] As an "in rem" proceeding, an application under the Civil Remedies Act is not required to establish the actual commission of an identified offence by an identified person: Chatterjee at para. 21. An offence may be found to have been committed even if no person has been charged with the offence, the person was acquitted or the charge was withdrawn: s. 17 Civil Remedies Act.
[24] In order for the court to issue a forfeiture order under s. 3 or s. 8 of the Civil Remedies Act, however, I must first be in a position to find that the seized property is in fact "proceeds of unlawful activity" or "an instrument of unlawful activity". While this is an in rem proceeding without a named respondent, the burden remains with the applicant Attorney General to supply the court with sufficient evidence to enable a finding to be made. Proof is made on the civil (balance of probabilities) standard of proof. The fact that this is an in rem proceeding also diminishes to some degree the weight to be attached to the consent to an order executed by an unrepresented non-party (i.e. Mr. Abdirahman).
[25] The applicant submits that the following facts discharge its burden and would support a finding by me that the currency in question is both proceeds of unlawful activity and an instrument of unlawful activity:
a. The unexplained possession of a large amount of cash;
b. The fact that the cash was "bundled";
c. The fact that the funds generated a "hit" for controlled substances by a police dog;
d. Mr. Abdirahman's inability to specify how much money he was carrying;
e. The largest number of bills was in $20 denominations "the most common denomination for unlawful activities such as drug trafficking";
f. The fact the funds were on his person and not in a bank;
g. The lack of a "credible" explanation from Mr. Abdirahman.
[26] In my view, the evidence viewed singly and as a whole is entirely equivocal and can permit no safe conclusion of any sort as to the money being in any way connected with an unlawful activity of any sort.
[27] I consider first the quality of the evidence. The only evidence presented to me is an affidavit of a police officer attached to the "Asset Forfeiture Unit", Detective Constable Huber. Her affidavit reveals that she never met Mr. Abdirahman nor did she interview any of the police officers involved in the actual detention of Mr. Abdirahman and the seizure of the funds on May 16, 2015. Her first involvement with the matter was on May 20, 2015 and she states that she was present at the police dog test. The great bulk of her evidence consists of interpreting the notes of investigating police officers with whom she did not actually speak. Opinion evidence of unnamed police officers is offered. Her affidavit offered a video of a police dog test and an apparently unqualified conclusion as to its meaning. Much of her affidavit evidence was simply inadmissible or was of weak quality.
[28] The fact that this is an in rem proceeding does not dispense the Attorney General with providing admissible and credible evidence from qualified witnesses to discharge its burden. As a general rule, it is better to file first hand evidence of material elements of the case if available rather than relying on hearsay and other derivative evidence. Opinions offered without attribution of their source on matters that are relevant or even central to the application cannot be given significant weight.
[29] The applicant submits that it is not necessary to identify the particular offence the funds are said to be proceeds of. That may be so where the funds are seized in connection with a multiplicity of identified or identifiable offences and the connection of the property to a number of probable offences is plain and obvious. Funds seized at an illegal casino operation where alcohol and cigarettes are also being sold do not need to be traced to a particular crime where the evidence connects them to several at once: Attorney General of Ontario v. $64,560 in Canadian Currency, 2016 ONSC 3683.
[30] In this case, unlawfulness is effectively claimed to be "in the air" and is only identified with the broadest level of generality. In cases having a complete lack of evidence demonstrating a tangible identification of the property seized with any identified unlawful activity or activities, the circumstantial evidence tendered to prove the link to unlawful activity must be that much more convincing and be first-hand where practicable.
[31] The cases cited by the Attorney General are in most cases instances where funds have been seized in strong connection and with direct proximity to credibly suspected and identified criminal activity:
a. In Ontario (Attorney General) v. $1,650 Canadian currency (In Rem), [2008] O.J. No. 2076 the possessor of the funds had a history of trafficking, had drugs in his possession and was in a car that emitted a strong smell of marijuana and had a roach in his possession;
b. In Ontario (Attorney General) v. $9,616.98 in Canadian Currency (In Rem), 2011 ONSC 3820 the funds were seized in connection with an arrest for possession of marijuana, there was a strong smell of marijuana and tools for growing marijuana in his possession;
c. In Ontario (Attorney General) v. $43,120 in Canadian Currency (In Rem), 2011 ONSC 3076 the funds were seized bundled in a bag in a storage unit and in a private home of the claimed owner of the funds. The alleged owner had a prohibited weapon in his vehicle and cocaine residue was found in his safe. The alleged source of the funds- casino winnings – could not be verified;
d. In Ontario (Attorney General) v. Chow, [2003] O.J. No. 5387 neither occupant of a vehicle acknowledged ownership of a suitcase containing $78,000 in currency when the vehicle was searched and the vehicle occupants provided inconsistent explanations.
[32] In the present case, there is simply nothing to tie Mr. Abdirahman to any unlawful activity at all. He had no criminal record and no drugs in his possession. He was not found in a place where unlawful activities were going on. His four confederates – if indeed the evidence would warrant finding them to be so (by no means an evident inference) – were not found to possess any drug-related articles in their possession. There is no evidence of a search of his residence or the Airbnb room mentioned (if indeed the unit in the building was his). I am left with the vague, unattributed and all-inclusive "known to police" descriptor related in the affidavit as the only indication that Mr. Abdirahman is anything other than the boy next door. Is he known to police as being in the drugs trade or as somebody who gets in fights in bars? I can give no material weight to vague evidence of that sort without quite a bit more to lend it some reliability.
[33] It is suggested by the Attorney General that circumstances here present, particularly the amount of cash seized, give rise to an onus of explanation on Mr. Abdirahman that, if not satisfactorily discharged, can be relied upon to discharge its burden of proof. That is, in my view, too simplistic a view.
[34] Mr. Abdirahman has not brought an application as a "legitimate owner" or a "responsible owner". He is in fact not a party at all. The respondent is a bundle of inanimate objects (in this case, bank notes). The rights of a legitimate owner or responsible owner only come into play under s. 3 or s. 8 of the Civil Remedies Act if the property in question is in fact proceeds of unlawful activity or an instrument of unlawful activity. Stated differently, the question of the owner's rights only enters the analysis after the Attorney General has discharged the primary burden of establishing, as against the inanimate object it has seized, that it is in fact the proceeds of unlawful activity or an instrument of unlawful activity.
[35] All of the circumstances surrounding the seizure, including explanations offered or not offered, will be relevant evidence. That fairly obvious observation does not amount to a shift in the burden of proof nor does it justify a presumption that the absence of what might be deemed "acceptable" explanations is sufficient proof that something unlawful must be afoot.
[36] I find that the Attorney General must prove its case on the balance of probabilities having regard to all of the admissible evidence. There is no "reverse onus" or "duty to explain" in the abstract. Inanimate objects have no voice and have nothing to explain. Money is not deemed to be proceeds of unlawful activity merely because possessed outside of the confines of a bank.
[37] Explanations offered by non-parties to the proceeding are simply evidence of the circumstances. Such evidence may or may not be sufficient evidence to demonstrate the unlawful provenance or destination of the property in combination with all other admissible evidence. As a matter of logic, however, it cannot be said that the lack of an "acceptable" explanation from a non-party is sufficient evidence of anything in and of itself. It will only be so where the most probable conclusion as to the origins or destination of the funds is unlawful activity. This means that unlawful activity must be more likely than any other lawful explanation. In such event, further evidence by way of an explanation might serve to tilt the balance back away from the natural conclusion that the evidence otherwise supports. If no explanation suggesting a more plausible and probable source is proffered the court is entitled to draw the ordinary conclusions it must draw from the evidence.
[38] In my view, the court should be cautious before leaping to conclusions that the burden has been satisfied where nothing more than speculative suggestions of any connection to identified unlawful activity is present relying primarily on the failure of someone to react to authorities in ways supposed to be normal. Human reactions are too variable and dependent on personal circumstances to permit such simplistic generalizations.
[39] Canada is a country with a large and diverse population. Among our numbers, we count Canadians who have left countries where governments periodically freeze bank deposits, prohibit their residents from travelling or spending money abroad or depreciate their currency overnight. There are Canadians who come from countries where the banking system is not to be trusted and are prone to failure. Such experiences leave scars that can be expressed in ways not easily understood or predicted by those fortunate enough to have no such experiences. Neither a very long memory nor extensive grasp of current affairs is needed to produce numerous examples of each.
[40] There are also many Canadians who have little to no connection to the Canadian banking system whether because they don't trust it, because their command of English is poor or because their intermittent or low level of their income makes them reluctant to step inside the doors of a bank. There are Canadians whose national origins have left them with a deep abiding mistrust and fear of all persons in authority, including the judiciary and police. There are many people who are marginal participants in the economy with irregular casual work that makes the acquisition of the attributes of the "cashless economy" in terms of bank accounts, debit and credit cards and the like difficult for them. Gangsters and drug lords may be enthusiastic participants in the cash economy; they do not have the ground to themselves.
[41] The burden must always rest upon the Attorney General's shoulders. The duty to supply an explanation (or the lack of credibility of explanations provided) can only be a factor when the evidence establishes that the most probable conclusion is that the property is connected to unlawful activity. It would be quite dangerous to rely solely upon silence or a hostile reaction to authority as an admission of unlawful activity without additional evidence to make that a probable conclusion.
[42] In the present case, the police seized funds from a young man of Somali extraction in downtown Toronto. The idea that young Somali-Canadian men might flee from police or fail to offer police ready co-operation, sadly, cannot be construed as particularly unusual. Relations between many of Toronto's visible minority communities and the Toronto Police Services are often strained although I fully recognize the efforts TPS is making to address this. Subjective comments in police notes of a nervous appearance or demonstrations of evasiveness can provide little solid foundation for making inferences absent other objective evidence. The behaviour of this young man in the circumstances admits of few confident inferences.
[43] The amount of cash found on Mr. Abdirahman's person is clearly large. A young, marginalized man coming from Alberta to Toronto might very credibly not have access to credit cards and prefer to use cash. He might have brought savings from work with him. The amount of funds possessed by Mr. Abdirahman would not be out of line for someone coming across Canada for a period of time in such circumstances. Mr. Abdirahman has since moved to Mississauga. He offered an explanation that appears to correspond to his personal circumstances. It is certainly impossible for me to discredit the explanation based upon an affidavit of someone who has never met or spoken with him.
[44] It is important to be appropriately wary of falling, however unconsciously, under the seductive spell of logical fallacies fuelled by stereotypes. There are Somali gangs who traffic in drugs but all Somalis are not drug traffickers. Drug traffickers may well prefer cash but not all citizens with cash are drug traffickers. Failing to cooperate with police may be indicative of unlawful activity and "something to hide" or it may simply be indicative of years of feeling singled out, carded and feeling treated by authorities as a criminal. Failing to hire a lawyer to fight a forfeiture application may be a tacit admission of its validity or it may be a resigned conclusion that the cost of hiring a lawyer would exceed the amount of money agreed to be forfeited to the Crown. A lifetime of marginalization may create low expectations of impartial justice in some, however unfairly.
[45] It is suggested that Mr. Abdirahman's inability to quantify the funds accurately is suggestive of unlawful activity. It seems to me that it is not at all unlikely that a young man either moving back to Toronto or at least visiting for a period of time without credit cards or debit cards might have a similar volume of cash and might not have an accurate estimate of how much he was carrying, particularly when under some stress. Furthermore, I am at a loss to know why drug traffickers are supposed to be more mathematically-challenged when it comes to counting money in their pocket than the population at large. The logical link between having an accurate count of funds on one's person with unlawful activity is either tenuous or non-existent.
[46] In my view, the police dog evidence is simply too weak to be given much weight. No expert evidence to interpret the video was provided. In viewing the videos, a dog is observed passing by a box containing the funds and others that were empty. He passes by twice and on the third pass stops and sits before it. The screen fades to black.
[47] Would the dog have reacted to a smell of dog biscuits in that fashion? Would funds received from a bank have such residue? Would funds from a random person's wallet trigger such a reaction? Would the contents of the pocket of somebody attending a night club where patrons may have consumed medical marijuana have tested in a similar fashion? Could the funds have acquired a minute residue in the police evidence room or while being handled by police who are handling other contraband? There was no lab test to verify what the dog reacted to. The dog is unable to communicate why it is reacting. I have been provided no basis in the evidence to assess the reliability of any inferences I might be asked to make based upon this evidence. I make none.
[48] The alleged bundling of the cash and the prevalence of $20 bills in the seized funds is also very weak evidence of the existence of unlawful activity. There are only five denominations of bills in circulation and it is hardly surprising that a large amount of cash should be concentrated in the three highest denomination bills. The prevalence of $20 bills in such a volume of cash suggest no more than that $50 and $100 bills are harder to spend by and large and the same amount of cash in $5 and $10 denominations would produce an unwieldy bundle. Drug traffickers may prefer large denomination bills – there is no reason to assume that anyone else who chooses to keep a significant amount of cash outside of a bank would not do the same. This evidence is equivocal at best.
[49] The burden of proof in this case was upon the Attorney General. No link of Mr. Abdirahman to any unlawful activity of any kind was found. The evidence in this case is entirely circumstantial and highly equivocal. Unlawful activity is merely one of many possible and plausible explanations. It would be unsafe to allow forfeiture of funds on so weak a foundation as this. As laudable and remedial as the intent of the Civil Remedies Act may be, the Attorney General's burden of proof must be carefully discharged with appropriate scrutiny from the court if it is not to become an instrument of arbitrary action divorced from its original intent.
Disposition
[50] At the hearing, I dismissed the application and directed the Attorney General of Ontario to return the seized funds to Mr. Abdirhaman, the person from whose possession the funds were taken. The hearing being unopposed, there was no order as to costs.
S.F. Dunphy J.
Date: June 07, 2016