Court File and Parties

COURT FILE NO.: CV-17-568241 DATE: 20190522 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: ATTORNEY GENERAL OF ONTARIO Applicant – and – $10,000.00 IN CANADIAN CURRENCY (IN REM) Respondent

Counsel: Sara MacDonald, counsel for the Applicant Jacob Stilman, counsel for the interested party, Samir Abdel-Gadir

HEARD: March 15, 2019

G. DOW, J.

REASONS FOR DECISION

[1] The Attorney General of Ontario (“Attorney General”) seeks forfeiture of $10,000.00 of Canadian Currency seized by the Toronto Police Service June 28, 2016 under Sections 3 and 8 of the Civil Remedies Act, R.S.O. 2001, c. 28. The Application is opposed by Samir Abdel Gadir (“Samir”).

Background

[2] In September, 2015, the Toronto Police Service commenced a special investigation of some criminal organizations and their importing and sale of controlled substances. It was code named “Project Beyond”. It involved a surveillance of a condominium at 85 Queens Wharf Road. On May 25, 2016 Samir Abdel Gadir’s brother, Sari Abdel Gadir (“Sari”) was observed attending at the premises carrying a “full weighted knapsack”, a gym bag and a satchel. In cross-examination under oath, Samir and Sari’s mother, Nimat Ahmed (“Nimat”) testified in May, 2016 Sari was employed by “one of the reputable banks, in Dubai” (questions 128 – 129). Sari, then aged 36 was found to be the registered owner of a 2004 BMW 5IA, license plate BLYT194 although records indicate he was unlicensed to drive. It had been transferred to his name from Samir on May 31, 2011 or five days after Samir became its registered owner. Sari’s address in Ontario was 4090 Living Arts Drive, Unit 2702, Mississauga, a condominium purchased by Nimat Ahmed and her spouse. They subsequently separated. It was transferred solely into Nimat Ahmed’s name who in turn transferred it to her eldest son, Sari.

[3] On June 28, 2016 Toronto Police Service executed a search warrant on the 4090 Living Arts residence. Sari was not there. Samir was in one of the two bedrooms, placed under investigative detention and advised of his rights. Nimat Ahmed was in the living room and treated the same. A search of the residence located two large bundles of Canadian currency in a black shoe box in the closet of Samir’s bedroom. In addition, six new money counters, still in their boxes, was found. The BMW was also searched and 379.31 grams of sealed marijuana found in the trunk. In the driver’s door pocket was mail addressed to Samir. Neither Nimat Ahmed or Samir were charged. No explanation for the $10,000.00 was given. The money was bundled in groups of $2,000.00, all being 100 - $20.00 bills except one bundle having 8 - $10.00 bills among the remaining 96 - $20.00 bills.

[4] At the time of the seizure, Samir had no prior criminal convictions, however, he was incarcerated between June 2011 until November 2015 when the charges relating to that incarceration were stayed. Samir had been charged with possession for the purpose of trafficking on April 8, 2008, December 2, 2008 and October 21, 2010 contrary to Section 5(2) of the Controlled Drugs and Substances Act. All charges were subsequently withdrawn or stayed. Subsequent to June 28, 2016, Samir was been charged with possession and possession for the purpose of trafficking. On December 12, 2017, Samir pleaded guilty to possession of a scheduled substance contrary to Section 5(2) of the Controlled Drugs and Substances Act. A charge of attempted murder was stayed March 14, 2019.

[5] Samir’s explanation for why and how the cash was in his shoe box in his bedroom involves co-ownership of Unit 6, 1768 Main Street West, Hamilton from about 2008. The other owner was Edward Barrowman who has not been located since these proceedings began almost three years ago. The property was rented to Stan Cegnar in 2012. Mr. Cegnar, a carpenter by trade and often paid in cash, paid rent of $1,200.00 per month which increased to $1,400.00 per month in or about 2016. In or about January, 2016 after Samir was released from custody, both men claimed Samir sold the house to Mr. Cegnar for $270,000.00. This included delivery by Mr. Cegnar of a $40,000.00 deposit in cash and an ongoing payments on a “rent to own” basis. There was also no evidence that Mr. Barrowman was aware of this sale or had consented to it.

[6] The evidence of this purchase was deposed by Mr. Cegnar in an affidavit sworn on August 8, 2018. Neither affidavit made mention of this “agreement” or “arrangement” having been reduced to writing. He was cross-examined on October 30, 2018. As part of his cross-examination, an Option to Buy Agreement, in writing, was produced days before. Mr. Cegnar testified the written agreement was drafted by a friend with a legal background whose surname and address could not be recalled (Questions 203 to 210). He also described himself as not very educated and “illiterate” (Question 189). Samir testified at his cross-examination on October 30, 2018 that half of the cash belongs to Mr. Barrowman. Mr. Cegnar agreed to cancel the agreement in the late summer of 2017 and moved out.

[7] At the time of the police raid, Samir claims there was actually $37,000.00 in cash in the shoe box with other denominations including $50s and $100s. No receipt for the payment of the $40,000.00 in cash could be recalled by either man. The remaining $3,000.00 in cash was used to buy the money counters Samir was selling as part of his occupation, being a self-described “entrepreneur”. Samir testified that he purchased the money counters for $90.00 each and resold them for $200.00 each in his affidavit. This was raised to $300.00 each at his cross-examination (question 97). This means he purchased 30 to 33 of them (presuming HST was included) and sold 24 to 27 of them before June 28, 2016 when the police attended at 4090 Living Arts Drive, Unit 2702 and found the remaining six money counters. Assuming a profit of $110.00 to $210.00 per money counter and all payments were in cash, Samir received between $2,640.00 to $5,670.00 for the money counters sold. (The point of this exercise is the highest possible amount of cash this would have generated is significantly less than $10,000.00).

[8] There was no evidence that the missing $27,000.00 has been the subject of any complaint to authorities nor was any cross-examination conducted of two of the four Toronto Police Service officers who swore affidavits in support of this Application and conducted the search including the officer that deposed finding the cash in the shoe box. It should also be noted the evidence before me included that Project Beyond resulted in the arrest of some 27 individuals, 280 kilograms of illegal drugs and 8 firearms including 418 rounds of ammunition.

[9] The evidence of the Attorney General of Ontario in support of forfeiture of the funds also included a 45 paragraph affidavit of a Detective Constable employed by the Toronto Police Service with experience in illegal drug trafficking and how these circumstances fit within the officer’s knowledge, and expertise regarding the drug trade.

Analysis

[10] Counsel for Samir conceded that should the funds be found to be the proceeds or instruments of illegal activity on a balance of probabilities, the funds should be forfeited in accordance with Section 3 and Section 8 of the Civil Remedies Act, supra. Given this submission, the essence of the submissions of counsel for Samir is that the evidence tendered fails to demonstrate, on a balance of probabilities, that the Canadian currency was derived from proceeds of or an instrument of criminal activity.

[11] The key submissions by counsel for Samir to undermine that the Canadian currency was derived from an illegal activity were:

(a) the affidavit evidence of the Detective Constable with more than 22 years employment with Toronto Police Services and 13 years in the drug squad was speculative and unreliable; (b) the results of “Project Beyond” did not result in any charges against either Samir or his brother, Sari; (c) Samir has a medical prescription or “right” to consume cannabis (but did not attach or produce said prescription or license to his affidavit or at his cross-examination); (d) a drug trafficker would have only one money counter not six still in their boxes; and (e) Samir’s ownership interest in 1768 Main Street West, Hamilton and its sale was corroborated by Stan Cegnar.

[12] I would respond to these submissions as follows:

(a) if the evidence of the Detective Constable was so speculative and unreliable, it could have been demonstrated under cross-examination or by tendering alternative evidence. Without contrary evidence, it is open to be accepted. I accept the sworn evidence of a veteran Toronto Police Service officer about how illegal activity such as the purchase and sale of illegal substances is conducted. I do so rather than speculate on my own or ignore such evidence; (b) while Project Beyond did not result in any charges against Sari or Samir, the police did obtain sufficient evidence to charge many others and confiscate a sizable quantity of illegal substances and weapons. Sari was observed associating with and attending at a location known to be used for illegal substances and activity and the search of the address registered to him found cannabis in the car transferred to him by his brother and an amount of cash admitted to be that of Samir who seeks its return; (c) Samir’s claim to have a legal right to possess cannabis has not been verified. His plea of guilty on December 12, 2017 to possession of a scheduled substance is strong evidence to the contrary; (d) the existence of multiple cash counters and Samir’s submission that he was in the business of selling them leads to considering, had he sold the 24 to 27 money counters he claims to have purchased with $3,000.00 at $90.00 per machine, why was no evidence offered as to the identities of any of the purchasers? This leads to the conclusion if his evidence about this business was true, it was likely with others conducting illegal activities where the names and addresses of customers are not likely to be remembered and no receipts were issued; (e) in submissions, counsel for Samir attempted to respond to my questioning about the improbability of not learning of and obtaining the written Option to Buy Agreement until the eve of cross-examination as a basis for it being more likely true than not true. Again, when weighed against the fact that it was produced by the self-described uneducated and illiterate carpenter, I conclude it is more likely than not the transaction did not occur as Stan Cegnar and Samir have stated; and (f) similarly, the explanation that there was actually $37,000.00 in the shoe box, $27,000.00 of which has gone missing without filing a complaint of theft or, at a minimum, cross-examine the officer who deposed finding the $10,000.00 leads me to conclude it is more likely than not those funds did not exist.

[13] Overall, I must conclude the evidence put forward by Samir is not reliable.

[14] I was directed to the decision of my colleague, Justice Dunphy in Ontario (Attorney General) v. $8,740.00 in Canadian Currency (In Rem) 2016 ONSC 3773 where he concluded the Attorney General had failed to prove the funds were the result of unlawful activity on a balance of probabilities. That case differs substantially from the one before me. The cash found on the individual detained by police in that matter was not accompanied by any other items associated with illegal activities such as drugs or weapons. The investigation by the Toronto Police Service leading to detaining the individual with the cash on his person arose from a report of gun shots fired in the area of Lakeshore Avenue West and Spadina Avenue in Toronto as opposed to a special investigation of criminal organizations importing and selling controlled substances. The funds seized in that matter were not in bundled groups of $2,000.00 but rather one bundle of bills of various denominations totaling $4,800.00 and the remaining cash being 197 loose $20.00 dollar bills. The use of a dog trained to smell drugs identifying a box containing the seized funds (on the third pass) in that matter differs from the 379.31 grams of cannabis found in the car owned by Sari and to which Samir had access.

[15] I am mindful of and agree with Justice Dunphy’s statement the circumstances of the seizure and explanation offered “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 an “acceptable” explanation “is sufficient proof that something unlawful must be afoot” (at paragraph 35).

[16] I also agree with Justice Dunphy’s statement that freedom includes the right to:

(a) be eccentric (at paragraph 3); (b) treat police officers with suspicion or, however unwise even rudeness or hostility (paragraph 3); and (c) keep large amounts of cash on one’s person or in one’s residence as opposed to using financial institutions and their services (at paragraphs 39, 40 and 44).

Conclusion

[17] Given all the evidence before me, I am satisfied the Attorney General has satisfied its burden. I order the funds be forfeited as sought in this Application.

[18] The Attorney General sought costs in the nominal amount of $500.00 inclusive of fees, HST and disbursements. I note the Application file contains invoices for obtaining the transcripts of the cross-examinations and interpretation services provided in excess of that amount. Counsel for Samir submitted a Bill of Costs at my request indicating 37.6 hours of time (at $400.00 per hour). In the event the application was unsuccessful, the claim for costs, including disbursements on partial indemnity basis was $17,531.95.

[19] However, in reviewing the relevant legislation and regulations, I was unable to ascertain any direct authority which permits me to award the costs of the Attorney General of Ontario against the non-party who opposed the forfeiture. I did find reference, under Sections 5 and 6 of the Civil Remedies Act, supra for the Attorney General to be compensated from the value of what was being forfeited. Given it is the Attorney General of Ontario to whom costs should be awarded given their success in this matter and its decision to seek such a small amount, I am declining their request and make no order as to costs.

Mr. Justice G. Dow Released: May 22, 2019