Court File and Parties

COURT FILE NO.: CV-14-514313 DATE: 2018/11/27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ATTORNEY GENERAL OF ONTARIO Applicant – and – $75,613 IN CANADIAN CURRENCY, AND $1,734 IN U.S. CURRENCY (IN REM) Respondent

Counsel: Noah Haynes and Lisa Will for the Attorney General of Ontario Daniel Freudman for the Interested Party, Eric Mahama

HEARD: November 11, 2018

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] On November 19, 2013, officers of the Toronto Police Service seized 643.43 grams of marihuana and 13.49 grams of a substance believed to be crack cocaine from apartment #310, 260 Sumach Avenue, Toronto. The police also seized $75,613 in Canadian currency and $1,734 in United States currency.

[2] The Attorney General of Ontario applies for a forfeiture Order under the Civil Remedies Act, 2001. For the reasons that follow, the application is granted.

B. Facts

[3] On November 19, 2013, officers of the Toronto Police Service, Major Crime Unit executed a Controlled Drugs and Substances Act search warrant at 295 Shuter Street, Apartment #1517 and at 260 Sumach Street, Apartment #310.

[4] No evidence was discovered at 295 Shuter Street.

[5] At 260 Sumach, Detective Constable Mykold Skvortsov knocked on the door. There was no answer, and the police breached the door. They found the apartment unoccupied, but after the entry into the apartment, Mahwash Karimi, whose apartment it was, arrived with her eight-year old son. Ms. Karimi watched the search of her apartment. She appeared very apprehensive. She made some despairing, inculpatory, and rude remarks to the officers conducting the search.

[6] Her reaction to the search was prescient, because in the master bedroom of the unit, police discovered: (a) a purple bag with two large, vacuum-sealed Ziploc bags containing marihuana; (b) a large Ziploc bag containing a large quantity of marihuana; (c) a pink plastic bag containing six labelled sealed envelopes containing cash wrapped in elastics and one loose envelope containing cash; (d) a Coach brand purse containing cash in bundles; (e) a Wal-Mart bag containing papers and a large "Salter" scale; (f) Ms. Karimi’s driver’s licence; and (g) a passport for Eric Mahama.

[7] Several buds of marihuana were discovered on the balcony and in the kitchen of the apartment. A "Fuzion Diablo" digital scale was found in the kitchen.

[8] The police seized 643.43 grams of marihuana (about 1.42 pounds), and 13.49 grams of the substance believed to be crack cocaine.

[9] In 2014, the seized marihuana would have been worth approximately $2,837 wholesale, or $9,636 if sold by the gram, and the crack cocaine would be worth approximately $1,350.

[10] In the Coach purse, there was loose currency worth $1,920 (12x$5; 8x$10; 54x$20; 14x$50).

[11] In the Coach purse there were ten bundles of cash; i.e., cash wrapped in elastic bands; namely: Bundle 1 worth $1,100 (15x$20, 6x$50, 4x$100); Bundle 2 worth $1,000 (3x$10, 31x$20, 7x$50); Bundle 3 worth $900 (40x$20, 1x$100); Bundle 4 worth $1,000 (1x$10, 17x$20, 13x$50); Bundle 5 worth $1,000 (50x$20); Bundle 6 worth $1,020 (4x$10, 24x$20, 6x50, 2x$100); Bundle 7 worth $1,000 (50x$20); Bundle 8 worth $197(U.S.) (47x$1, 6x$5, 6x$20); Bundle 9 worth $73 (3x$1, $5x2, 2x$20); Bundle 10 worth $180 (9x$20).

[12] There were seven envelopes in the pink plastic bag; namely: Bundle 1 worth $7,600 (70x$50, 41x$100); Sub-Bundle 2 worth $706 (U.S.) (23x$1, 8x$5, 7x10, 11x$20, 3x$50, 1x$100); Bundle 2 worth $10,000 (25x$20, 90x$50, 50x$100); Bundle 3 worth $10,000 (45x$20, 18x$50, 82x$100); Bundle 4 (70x$20, 22x$50, 75x$100); Bundle 5 worth $9,970 (56x$20, 29x$50, 74x$100); Bundle 6 worth $9,880 and $620 (U.S.) (34x$20, 40x$50, 67x$100; 11x$20(U.S.), 2x$50(U.S.), 3x$100(U.S.)); and Bundle 7 worth $9,570 and $310(U.S.) (51x$20, 61x$50, 55x$100, 2x$5(U.S.), 1x$10(U.S.), 7x$20(U.S.), 1x$50(U.S.), 1x$100(U.S.)).

[13] The seized currency totaled $75,613 and $1,734(U.S.).

[14] After the search, Detective Robert Davies arrested Ms. Karimi for possession of marihuana for the purpose of trafficking, and possession of the proceeds of crime. Ms. Karimi was handcuffed and read her rights to have legal counsel, and she was cautioned. Ms. Karimi declined to call a lawyer at that time. In response to the caution, Ms. Karimi said that she was "finished", would be "going to jail for a long time", and that "it's all gone".

[15] Ms. Karimi requested a jacket to wear to the police station. The jacket was retrieved by Detective Skvortsov. He discovered in the jacket a single-knotted, clear plastic bag of what appeared to be crack cocaine. Ms. Karimi was advised that she would also be charged for possession of crack cocaine. Ms. Karimi was then transported to the police station.

[16] Ms. Karimi and Mr. Mahama were charged under the Criminal Code and Controlled Drugs and Substances Act. However, the Public Prosecution Service of Canada subsequently withdrew the charges.

[17] As already noted, found in the seized materials was Mr. Mahama’s passport. Mr. Mahama was Ms. Karimi’s friend, her former common law spouse, and the father of her son. Mr. Mahama has three other children that live in Halifax. He had a romantic relationship with a Bobbi Petrie.

[18] Mr. Mahama says that he did some work for his father and lived with his elderly mother.

[19] Mr. Mahama deposed that the seized marihuana was his personal property for his personal use. He says that the seized currency was his life savings that he had earned in a variety of lawful ways. He says that he stored the money at Ms. Karimi’s apartment because his elderly mother suffers from dementia and the money would not be safe at their home. He says that while peculiar, it was typical and a cultural behaviour for he and his family members to store money at home and not in a bank.

[20] Over twenty years ago, in 1997, Mr. Mahama was charged with possession of a narcotic. The charge was stayed. In 2012, Mr. Mahama was bound by a recognizance after police charged him with being in possession of marihuana at 295 Shuter, which I understand to be Ms. Petrie’s residence. Mr. Mahama breached the terms of the recognizance by having contact with Ms. Petrie, and he pleaded guilty It seems that the possession of marihuana charge did not proceed.

[21] As already noted, Mr. Mahama deposed that the police had seized his life savings, which he intended to use to buy a home for Ms. Karimi and her son. Ms. Karimi said that the money did belong to Mr. Mahama and the plan was to use it for a home for her and her son. She said that it had taken about seven years at about $10,000 per year to accumulate the money for the home purchase. Although Ms. Karimi had a bank account, the money saved for the home was not deposited.

[22] Mr. Mahama said that annual income averaged around $36,000. His income tax returns, however, indicated income around $10,000. Over the years, he was engaged in a variety of jobs including working as a baggage courier at Pearson International Airport. He said that along with his father, he promoted and was an organizer of music events through a business known as Pryme Tyme Entertainment.

[23] Mr. Mahama had a bank account and a credit card. He provided evidence that revealed that he withdrew $72,976.84 between 2007 and seizure in November 2013. He said that some of the seized cash was from the withdrawn funds and some was cash earned from Pryme Tyme and other cash-based jobs and ventures. Mr. Mahama did not provide any documentary evidence of other jobs and ventures.

[24] Mr. Mahama deposed that he purchased the marihuana for personal use from a contact at a nightclub. He deposed that he had a prescription for the medical use of marihuana but had purchased at the nightclub because it was cheaper. He proffered as evidence the medical prescription, but it was dated in 2015.

[25] Mr. Mahama deposed that he provided modest financial assistance to his mother and to at least two of his children in Halifax, but that he had no formal support obligations. He lived in subsidized housing, had no car but did rent vehicles for the purposes of his event promotions business. There is no evidence of extravagant living expenses and such evidence as there was suggests that he lived modestly and frugally.

C. Forfeitures and Defences to Forfeiture under the Civil Remedies Act

[26] The Civil Remedies Act, 2001, was enacted to deter crime and to compensate victims of criminal activity. The Act is independent from the forfeiture provisions of the Criminal Code and the Act establishes a civil scheme for the forfeiture of property connected with criminal activity. Section 1 of the Civil Remedies Act, 2001 sets out the statutes’ purposes as follows:

Purpose

The purpose of this Act is to provide civil remedies that will assist in, (a) compensating persons who suffer pecuniary or non-pecuniary losses as a result of unlawful activities; (b) preventing persons who engage in unlawful activities and others from keeping property that was acquired as a result of unlawful activities; (c) preventing property, including vehicles as defined in Part 111.1, from being used to engage in certain unlawful activities; and (d) preventing injury to the public that may result from conspiracies to engage in unlawful activities.

[27] To achieve its purposes, the Civil Remedies Act, 2001 authorizes in rem forfeiture of property connected to criminal activity. Chatterjee v. Ontario (Attorney General), 2009 SCC 19 at paras. 3 and 4. An application under the Civil Remedies Act, 2001 is a proceeding in rem, being a claim against property rather than against a person. The Act does not create an offence and is not concerned about the identification, charge, or prosecution, conviction, or punishment of an offender. Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, [2007] O.J. No. 2102 (Ont. C.A.), aff’d at 2009 SCC 19 (SCC).

[28] Under the Civil Remedies Act, 2001, the Attorney General is authorized to bring a forfeiture application pursuant to section 3 or section 8 of Act. Under Section 3, the court may order property forfeit, if the court finds that the property is “proceeds of unlawful activity”. Under s. 8, the court may order property forfeit, if the court finds that the property is “an instrument of unlawful activity.” For a forfeiture order, the onus is on the Attorney General to show on the balance of probabilities that either: (a) the property is “proceeds of unlawful activity”; or (b) the property is “instrument of unlawful activity.” Chatterjee v. Ontario (Attorney General), 2009 SCC 19 at para. 23; Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), 2011 ONCA 363 at para. 54.

[29] Under the Civil Remedies Act, 2001, if the Attorney General shows that the property is the proceeds or the instrument of unlawful activity or both and the respondent fails to prove that he or she is a legitimate or reasonable owner, the court shall forfeit the property in question unless it is clearly not in the interests of justice. Ontario (Attorney General) v. $104,877 in U.S. Currency (In Rem), 2014 ONSC 5688 at para. 31.

[30] There is an exception to forfeiture for a “legitimate owner” or a “responsible owner.” The person relying on the legitimate owner or responsible owner exception bears the onus on a balance of probabilities of proving that he or she is a legitimate or responsible owner. Ontario (Attorney General) v. 855 Darby Road, Welland (In Rem), 2017 ONSC 4953; Ontario (Attorney General) v. $9,475 in Canadian Currency (In Rem), 2014 ONSC 3711; Ontario (Attorney General) v. $9,616.98, 2011 ONSC 3820 at para. 6 (Div. Ct.); Ontario (Attorney General) v. 8477 Darlington Crescent, [2008] O.J. No. 5209 at para. 58 (C.A.); Ontario (Attorney General) v. Chow, [2003] O.J. No. 5387 at para. 33 (S.C.J); Ontario (Attorney General) v. 170 Glenville Road, King (In Rem), [2010] O.J. No. 2865 (S.C.J.), aff’d 2011 ONCA 444.

[31] Sections 3 and 8 of the Civil Remedies Act, 2001 state:

Forfeiture order

(1) In a proceeding commenced by the Attorney General, the Superior Court of Justice shall, subject to subsection (3) and except where it would clearly not be in the interests of justice, make an order forfeiting property that is in Ontario to the Crown in right of Ontario if the court finds that the property is proceeds of unlawful activity.

Action or application

(2) The proceeding may be by action or application.

Legitimate owners

(3) If the court finds that property is proceeds of unlawful activity and a party to the proceeding proves that he, she or it is a legitimate owner of the property, the court, except where it would clearly not be in the interests of justice, shall make such order as it considers necessary to protect the legitimate owner’s interest in the property.

Same

(4) Without limiting the generality of subsection (3), an order made under subsection (3) may, (a) sever or partition any interest in the property or require any interest in the property to be sold or otherwise disposed of, to protect the legitimate owner’s interest in the property; or (b) provide that the Crown in right of Ontario takes the property subject to the interest of the legitimate owner.

Limitation period

(5) A proceeding under this section shall not be commenced after the 15th anniversary of the date proceeds of unlawful activity were first acquired as a result of the unlawful activity that is alleged to have resulted in the acquisition of the property that is the subject of the proceeding.

Forfeiture order

(1) In a proceeding commenced by the Attorney General, the Superior Court of Justice shall, subject to subsection (3) and except where it would clearly not be in the interests of justice, make an order forfeiting property that is in Ontario to the Crown in right of Ontario if the court finds that the property is an instrument of unlawful activity.

Action or application

(2) The proceeding may be by action or application.

Responsible owners

(3) If the court finds that property is an instrument of unlawful activity and a party to the proceeding proves that he, she or it is a responsible owner of the property, the court, except where it would clearly not be in the interests of justice, shall make such order as it considers necessary to protect the responsible owner’s interest in the property.

Property sold, disposed of

(3.1) Where property that is the subject of a proceeding under this section is modified or sold or otherwise disposed of after the proceeding has been commenced but before an order is made under subsection (1), the proceeding shall be continued in respect of the modified property or property that is realized from the sale or other disposition and, if the original property would have been found to be an instrument of unlawful activity, the court shall make a finding that the modified or realized property is also an instrument of unlawful activity.

Protecting responsible owner’s interest

(4) Without limiting the generality of subsection (3), an order made under subsection (3) may, (a) sever or partition any interest in the property or require any interest in the property to be sold or otherwise disposed of, to protect the responsible owner’s interest in the property; or (b) provide that the Crown in right of Ontario takes the property subject to the interest of the responsible owner.

No limitation period

(5) There is no limitation period for a proceeding under this section.

[32] For the purposes of a s. 3 forfeiture order, s. 2 of the Act defines “legitimate owner”, “proceeds of unlawful activity”, “property”, and “unlawful activity” as follows:

Definitions

In this Part, …

“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);

“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;

“property” means real or personal property, and includes any interest in property; (“bien”)

“unlawful activity” means an act or omission that, (a) is an offence under an Act of Canada, Ontario or another province or territory of Canada, or (b) is an offence under an Act of a jurisdiction outside Canada, if a similar act or omission would be an offence under an Act of Canada or Ontario if it were committed in Ontario, whether the act or omission occurred before or after this Part came into force.

[33] For the purposes of a s. 8 forfeiture order, s. 7 of the Act, defines “instrument of unlawful activity”, “property”, “responsible owner”, and “unlawful activity”, as follows:

Definitions

7.(1) In this Part, …

“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; (“instrument d’activité illégale”)

“property” means real or personal property, and includes any interest in property; (“bien”)

“responsible owner” means, with respect to property that is an instrument of unlawful activity, a person with an interest in the property who has done all that can reasonably be done to prevent the property from being used to engage in unlawful activity, including, (a) promptly notifying appropriate law enforcement agencies whenever the person knows or ought to know that the property has been or is likely to be used to engage in unlawful activity, and (b) refusing or withdrawing any permission that the person has authority to give and that the person knows or ought to know has facilitated or is likely to facilitate the property being used to engage in unlawful activity; (“propriétaire responsable”)

Instruments of unlawful activity

(2) For the purpose of the definition of “instrument of unlawful activity” in subsection (1), proof that property was used to engage in unlawful activity that, in turn, resulted in the acquisition of other property or in serious bodily harm to any person is proof, in the absence of evidence to the contrary, that the property is likely to be used to engage in unlawful activity that, in turn, would be likely to result in the acquisition of other property or in serious bodily harm to any person.

Same

(3) Where property that is the subject of a proceeding or intended proceeding under section 8 was modified or sold or otherwise disposed of before an order is made under subsection 8 (1), the determination of whether the modified property or the property that was realized from the sale or other disposition of the property is an “instrument of unlawful activity” shall be based on whether the property was likely to be used to engage in unlawful activity before it was modified or sold or otherwise disposed of.

[34] Unlawful activity is not limited to crimes under the Criminal Code and means offences under federal or provincial statutes or offences outside Canada if a similar act or omission would be an offence if committed in Ontario. In Ontario (Attorney General) v. $138,650 in Canada Currency (In Rem), 2012 ONSC 7230, welfare fraud was found to be an unlawful activity giving rise to a forfeiture. In Ontario (Attorney General) v. Condominium Units 1210 and 1310 at 8 Scollard Street, Toronto (In Rem), 2011 ONSC 3067, violations of the Consumer Protection Act, 2002, constituted an illegal activity. In Ontario (Attorney General) v. $25,610 in Canadian Currency (In Rem), 2017 ONSC 708 and Ontario (Attorney General) v. $13,900 in Canadian Currency (In Rem), 2015 ONSC 2267, trading or exporting vehicles without license to do so was unlawful activity.

[35] Pursuant to s. 17(2) of the Civil Remedies Act, 2001, an offence may be found to have been committed even if no person has been charged with the offence or even if a person was charged with the offence but the charge was withdrawn or stayed, or the person was acquitted of the charge. Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, [2007] O.J. No. 2102 (Ont. C.A.), aff’d at 2009 SCC 19 (SCC); Ontario (Attorney General) v. $25,610 in Canadian Currency (In Rem), 2017 ONSC 708 at para. 21; Ontario (Attorney General) v. $39,460 in Canadian Currency (In Rem), 2015 ONSC 6727. A conviction on criminal charges is not required for the court to find that property is proceeds or an instrument of unlawful activity. The statute does not require finding of fault, either criminal or civil, against a person. Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, [2007] O.J. No. 2102 (Ont. C.A.), aff’d at 2009 SCC 19 (SCC); Ontario (Attorney General) v. Chow, [2003] O.J. No. 5387 (S.C.J). The Attorney General does not have to prove that the property in question is related to any particular offence. Chatterjee v. Ontario (Attorney General), 2009 SCC 91 at para. 21; Ontario (Attorney General) v. $10,000.00 in Canadian Currency (In Rem), 2014 ONSC 944 at para. 7.

[36] Currency may be proceeds of unlawful activity, and the Attorney General can obtain a forfeiture order, if the Attorney can establish by direct or circumstantial evidence that the money was acquired from crime in general. Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, [2007] O.J. No. 2102 (Ont. C.A.), aff’d at 2009 SCC 19 (SCC); Ontario (Attorney General) v. $44,425 in Canadian Currency (In Rem), 2015 ONSC 7382; Ontario (Attorney General) v. $13,900 in Canadian Currency (In Rem) 2015 ONSC 2267.

[38] There are situations where property can be both proceeds of unlawful activity and an instrument of unlawful activity. For example, in Ontario (Attorney General) v. Chow, [2003] O.J. No. 5387 (S.C.J), the Court accepted that money that was proceeds of unlawful activity (because it was obtained from the sale of drugs) was also an instrument of unlawful activity when it could be used to purchase more drugs.

[40] In Ontario (Attorney General) v. $43,120, 2011 ONSC 3076, [2011] O.J. No. 2546 (S.C.J.), the Court considered and rejected the respondent’s claim that the money seized – bundled cash found in a gym bag in a storage locker and at his residence – was “either through working very hard and saving and/or by winning monies at local casinos”. The Court ordered forfeiture of the seized money, as there were indicators of drug trafficking involvement and no documents to support the respondent’s assertion that the money was from any legitimate business or casino winnings.

[41] The “clearly not in the interests of justice” exception to a forfeiture order is narrowly construed, and relief from forfeiture is very much the exception and should be granted only where the party seeking that remedy clearly makes the case that forfeiture would lead to an unequitable and unjust result; the interests of justice exception should only be granted where the party seeking relief from forfeiture has established that forfeiture would be manifestly harsh or draconian. In seeking relief from forfeiture based on the “clearly not in the interests of justice” exception to a forfeiture order, the onus is upon the party seeking relief to demonstrate that in all the circumstances, the forfeiture order will be a manifestly harsh and inequitable result. Ontario (Attorney General) v. 20 Strike Avenue, Bowmanville, Ontario (Pin #26932-0115(LT)) (In Rem), 2014 ONCA 395; Ontario (Attorney General) v. $104,877 in U.S. Currency (In Rem), 2014 ONSC 5688 at para. 49; Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), 2011 ONCA 363.

[42] In considering whether to grant relief from forfeiture, the court may consider, among other things: (a) the conduct of the party whose property is the subject of the forfeiture application, including knowledge or constructive knowledge of the unlawful activity, failure to take reasonable steps to prevent the unlawful activity, any profit derived knowingly or unknowingly from the unlawful activity, and any steps taken after the owner became aware of the unlawful activity; (b) the disparity between the value of the property that is proceeds of unlawful activity and the value of the property sought to be forfeited; (c) the interplay between the purposes of the Act (i.e., compensation of victims, crime prevention, deterrence) and the exercise of the discretion to relieve from forfeiture. The list of factors is not exhaustive and whether relief from forfeiture should be granted must be determined on a case by case basis. Ontario (Attorney General) v. 855 Darby Road, Welland (In Rem) 2017 ONSC 4953 at paras. 142-150; Ontario (Attorney General) v. $18,550.00 in Canadian currency (In Rem), 2016 ONSC 2237 at paras. 148-153; Ontario (Attorney General) v. $51,000.00 in Canadian Currency (In Rem), 2013 ONSC 1321 at para. 41; Ontario (Attorney General) v. 20 Strike Avenue, Bowmanville, Ontario (Pin #26932-0115(LT)) (In Rem), 2013 ONSC 2130 at paras. 16-19, aff’d 2014 ONCA 395; Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), 2011 ONCA 363.

D. Discussion

[43] Under s. 4(1) of the Controlled Drugs and Substances Act, 1996, it is an offence to possess any substance listed in Schedules I or II of the Act. Cocaine is listed in Schedule I and cannabis is listed in Schedule II. Under s. 5(1) and s. 5(2) of the Controlled Drugs and Substances Act, 1996, it is an offence to possess scheduled substances including crack cocaine and cannabis, for the purpose of trafficking. Under s. 7(1) of the Controlled Drug and Substances Act, it is an offence to grow or to produce a controlled or unlawful substance. Under s. 354 of the Criminal Code, it is an offence to possess property obtained by the commission of an offence punishable by indictment. Any activities contrary to the sections of the Controlled Drugs and Substances Act, 1996 or the Criminal Code are unlawful activities under the Civil Remedies Act.

[44] Mr. Mahama did not rely on the legitimate owner, reasonable owner, or interests of justice exceptions, and his argument, which I reject, is that the Attorney General had not proven on a balance of probabilities that the seized currency was connected to an unlawful activity. The evidence, albeit circumstantial, is that the presence of so much cash in close proximity to such much drugs and all the other circumstances do connect the cash to the unlawful activity of drug trafficking.

[45] In the case at bar, based on the civil standard of proof on the balance of probabilities, I find as a fact that the $75,613 and $1,734 (U.S.) of currency found in Ms. Karimi’s apartment are the proceeds of the unlawful activity of drug trafficking within the meaning of the Civil Remedies Act. I further find as a fact that the seized funds are an instrument of the unlawful activity of drug trafficking within the meaning of the Civil Remedies Act.

[46] These findings of fact are supported by the evidence that a large quantity of what was undoubtedly marihuana and a not insignificant quantity of what was likely crack cocaine was found in close proximity to a large sum of money bundled in the fashion used by drug traffickers.

[47] Mr. Karimi’s demeanor and inculpatory statements supports the conclusion that the source of the money was from an unlawful activity.

[48] Both Ms. Karimi and Mr. Mahama had bank accounts, and the absence of a convincing explanation of why one’s purportedly lawfully earned life savings would not be deposited in a bank supports the conclusion that the savings were not lawfully earned.

[49] As numerous courts have observed drug dealing is a cash business, but unlike lawful cash business, drug dealers do not deposit their funds in a bank or financial institution. Individuals involved in unlawful activity usually avoid banks for illegally obtained funds as bank accounts produce records that enable tracing and seizure. In the immediate case, Mr. Mahama and Ms. Karimi had bank accounts, and there is no reasonable explanation for why the money being saved for a home was not deposited in a bank account.

[50] Similarly, if the money at Ms. Karimi’s apartment was Mr. Mahama’s lawfully earned revenues, then it would and should have been declared to the Canada Revenue Agency, but it was not declared. Illegitimately earned funds are typically not declared to avoid raising suspicions regarding the provenance of the money.

[51] Mr. Mahama provided evidence that he was capable of earning money lawfully, but his evidence did not explain how given his personal expenses and the modest but erratic financial support he gave to his mother and some of his children, he could have amassed the money found in Ms. Karimi’s apartment by purely lawful activities. On a balance of probabilities, I find that this money, be it saved for a home or not, was not money from lawful activities.

[52] On a balance of probabilities, I find that the money was the instrument of an unlawful activity, i.e., the money would fund the acquisition of more drugs for the purpose of reselling the drugs; i.e., for the unlawful activity of drug trafficking.

[53] As the discussion of the Civil Remedies Act above reveals, to conclude that seized property is the proceeds of an unlawful activity or is the instrument of an unlawful activity, it is not necessary to conclude that Mr. Mahama was a drug trafficker and it is not necessary that there have been criminal proceedings and a conviction.

[54] I conclude that a forfeiture order shall be made.

E. Conclusion

[55] For the above reasons, I grant the application.

[56] Costs orders may be made in proceedings under the Civil Remedies Act, 2001 but the Attorney General did not request costs. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Attorney General’s submissions within 20 days of the release of these Reasons for Decision followed by Mr. Mahama’s submissions within a further 20 days.

Perell, J.

Released: November 27, 2018.

Ontario (Attorney General) v. $75,613 in Canadian Currency (In Rem), 2018 ONSC 7062

Case Summary

Court File and Parties

REASONS FOR DECISION

A. Introduction

B. Facts

C. Forfeitures and Defences to Forfeiture under the Civil Remedies Act

D. Discussion

E. Conclusion

Cited By (2 cases)

Attorney General of Ontario v. $32,000 in Canadian Currency, 2025 ONSC 3414

Ontario (Attorney General) v. $75,613 in Canadian Currency (In Rem), 2019 ONSC 272

This Proceeding

Judge

Counsel

Parties

Areas of Law

Legislation 4