SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Attorney General of Ontario, Applicant/Moving Party
AND:
2192 Dufferin Street, Toronto (the property registered to 953667 Ontario Ltd.), 442 Egerton Street, London (the property registered to 552346 Ontario Ltd.), 434 Egerton Street, London (the property registered to 552346 Ontario Ltd.), 144 Oakdale Street, St. Catharines (the property registered to 938074 Ontario Ltd.), 275 Spruce Street. Sault Ste. Marie, 3465 Wilkinson Lane, Windsor (the property registered to 552346 Ontario Ltd.) and other property (in rem), Respondents/Responding Parties
BEFORE: H. McArthur J.
COUNSEL: L. Will and R. Amarnath, appearing as counsel for the Applicant/Moving Party
S. Robertson, assisting the Respondent/Responding Party, Mr. Clifford Tryon
J. Safayeni, appearing as Amicus Curiae
HEARD: November 6 and 27, 2018
REASONS ON APPLICATION FOR FORFEITURE
H. MCARTHUR J.:
I. Introduction
1The Attorney General of Ontario ("AGO") seeks an order pursuant to the Civil Remedies Act, 2001, S.O. 2001, c.28 ("CRA") forfeiting the proceeds of the sale of the six respondent properties used as clubhouses by the Outlaws Motorcycle Club. The AGO also seeks forfeiture of property seized from the six clubhouses, as well as property seized in search warrants executed at approximately 35 other sites. The AGO argues that the clubhouses and property must be forfeited as they are either proceeds or instruments of unlawful activity.
2These forfeiture proceedings arise out of a large scale police project ("Project Retire"), which began investigating the Outlaws in 1999. The police used the services of an agent, Norman Tortillo, who posed as a member of the Outlaws. Mr. Tortillo spent time in each of the six clubhouses and socialized with members of the Outlaws. Mr. Tortillo told the police that the Outlaws made their money through crime such as drug trafficking and selling stolen goods. The clubhouses served as a safe haven for criminality.
3In 2002, as a result of the Project Retire investigation, the police arrested approximately 47 members of the Outlaws for various criminal offences. At least 13 of these individuals pled guilty to criminal organization offences in relation to the Outlaws, including a chapter president, a national vice president and a national enforcer. Given those convictions, there was little dispute before me that the Crown had established on a balance of probabilities that the Outlaws are a criminal organization.1
4The police also seized the six respondent clubhouses. The civil forfeiture proceeding was started on March 18, 2009. On March 20, 2009, Campbell J. issued an ex parte preservation order preserving the property for 30 days, which was extended on April 17, 2009.
5Each of the six properties were found to be fortified and significantly modified. On August 31, 2009, Campbell J. issued a consent order, on consent of the then counsel for the respondents and the AGO, ordering that the buildings on the properties be demolished as they were structurally unsound and a danger to the public. Pursuant to the order, the properties were then sold to pay for the demolition, as well as any outstanding property taxes and utility bills. The remaining amount of $238.97 was paid into court and is now subject to this forfeiture proceeding.
6The police also executed search warrants at approximately 50 sites and seized a vast amount of real property. Some of this property has been dealt with, either through criminal forfeiture proceedings or because the property has already been returned. There remain, however, significant quantities of property that the AGO seeks to have forfeited. One group of property has been characterized as Outlaws paraphernalia, such as patches, vests, jewelry with the Outlaws logo (the "Charlie"), and assorted memorabilia and bric-a-brac. The AGO also seeks forfeiture of other property, such as currency, documents and computers, personal identification, 'white power' memorabilia, and weapons/weapons accessories.
7The only person who responded to this application is Clifford Tryon. During the relevant time, Mr. Tryon was a director and officer of the numbered corporation that owned the clubhouses at 442 Egerton Street (London), 434 Egerton Street (London) and 3465 Wilkinson Lane (Windsor). Mr. Tryon's personal residence is 2010 Trafalgar Street (London). While the AGO is not seeking forfeiture of Mr. Tryon's residence, it is seeking forfeiture of items seized from his residence.
8Mr. Tryon argues that the limitations period set out in the CRA applies and, as a result, the AGO is statue-barred from seeking forfeiture of the clubhouses. Mr. Tryon also argues that the AGO has failed to establish that the clubhouses should be forfeited as either proceeds or instruments of unlawful activity. In the alternative, he argues that forfeiture would clearly not be in the interests of justice. Finally, Mr. Tryon raises a number of constitutional issues, arguing that the CRA violates several rights guaranteed by the Canadian Charter of Rights and Freedoms.
9An immense amount of material was filed on this application. I do not propose to outline the facts at the outset, and will refer to them only as necessary in my analysis. I will deal first with the issues in relation to the clubhouses. I will then consider the arguments with respect to the property seized. Finally, I will address the process for returning any items that have not been ordered forfeited.
II. Analysis
A. The Six Clubhouses
Issue One: Is the AGO statute-barred from seeking forfeiture of the proceeds of the sale of the six clubhouses?
10Section 15 of the CRA provides that a proceeding for forfeiture of items as being proceeds of unlawful activity "shall not be commenced after the 15th anniversary of the date proceeds of the unlawful activity were first acquired…" Mr. Tryon argues that the 442 Egerton property was first bought in 1983, but the AGO did not start this proceeding until 2009. Moreover, he notes that other clubhouse were purchased more than 15 years before the AGO started the forfeiture proceedings. As a result, he says that the AGO is statute-barred from seeking forfeiture of the clubhouses.
11I cannot agree for two reasons. First, as noted in Ontario (Attorney General) v. 1140 Aubin Road, 2011 ONCA 363, at para. 40, "payments on the mortgage constitute the acquisition of an interest in the property". I agree with the AGO that this means that for the purposes of the limitation period, an interest in a property is first acquired each time that a mortgage payment is made.
12Second, the AGO also seeks forfeiture of the clubhouses as instruments of unlawful activity. Pursuant to s. 8(5) of the CRA, there is no limitation period applicable to such proceedings. Thus, even if the AGO was statute-barred from pursuing forfeiture of the clubhouses as proceeds of unlawful activity, it is open to it to seek forfeiture of the clubhouses as instruments of unlawful activity.
Issue Two: Are the clubhouses forfeitable as proceeds of unlawful activity?
13Section 2 of the CRA defines the proceeds of unlawful activity as property acquired, directly or indirectly, in whole or in part, as a result of unlawful activity.
14In my view, the evidence filed on this motion clearly establishes that members of the Outlaws committed various crimes in order to make money.2 The evidence also establishes that members of the Outlaws were required to pay dues. These dues went, in part, to pay down the mortgages on the clubhouses and to support the upkeep of the clubhouses.
15I find that it is likely, or more probable than not, that some or all of the dues which went towards the mortgage came from the sale of drugs or other illegal activities. Payments on the mortgage represent an acquisition of the property. Thus, in my view the evidence establishes that the clubhouses were acquired, in part, as a result of unlawful activity and were thus proceeds of unlawful activity.
16As a result, the court must make a forfeiture order, subject to two exceptions. The first exception applies if the party seeking to avoid forfeiture proves that he or she is a "legitimate owner". If so, then pursuant to s. 3(3) of the CRA, the court must make an order that protects the legitimate owner's interest in the property, unless the AGO demonstrates that such a protection order would "clearly not be in the interests of justice".
17Section 2 of the CRA defines a "legitimate owner" as a person who was the rightful owner of the property before the unlawful activity or a person who acquired the property for fair value after the unlawful activity occurred. As explained by the court in Aubin, at para. 14, the definition of "legitimate owner" is a narrow one. Mr. Tryon does not fall under the definition of a "legitimate owner". No other person has come forward to claim that he or she is the legitimate owner of the clubhouses. As a result, this exception does not apply.
18The second exception is where it would "clearly not be in the interests of justice" to order forfeiture. Mr. Tryon argues that this exception applies for four reasons. First, he argues that there has been undue delay in bringing the civil forfeiture proceedings. I agree that this proceeding has taken a long time to get to this point. That said, the AGO set out the history of this matter at paras. 22-28 of its reply factum. I agree with the AGO that this history adequately explains why the application has taken the time that it has, and establishes that there is no issue of undue delay in bringing the civil forfeiture application. That is, the delay in having this proceeding come to its conclusion is not a factor that establishes that is would clearly not be in the interests of justice to proceed.
19Second, Mr. Tryon argues that the civil forfeiture application is contrary to the interests of justice because it is marred by issues that arose in the criminal prosecution. Mr. Tryon argues that the Crown prosecutor in charge of the criminal prosecution engaged in abuse of process. He argues that he was not served with documents relating to the criminal forfeiture proceedings. He points out that the criminal charges against him were withdrawn. Based on these factors, he argues that it is clearly contrary to the interest of justice to order forfeiture.
20Again, I cannot agree. It is clear that civil forfeiture proceedings are separate and apart from criminal proceedings: Aubin, at paras. 60-62. I agree with the AGO that Mr. Tryon's arguments with respect to issues arising during the course of the criminal proceedings are irrelevant in light of this distinction.
21Third, Mr. Tryon argues that there were never any convictions as a result of a trial. Moreover, Mr. Tryon was never convicted of anything. As a result, he argues that it would be contrary to the interests of justice to order forfeiture. I cannot accept this argument. As noted above, at least 13 individuals pled guilty to criminal organization offences in relation to Project Retire. In any event, it is clear that the CRA does not require an allegation or proof that a particular person committed a particular crime to warrant forfeiture: Chatterjee v. Ontario (Attorney General), 2009 SCC 19.
22Fourth, Mr. Tryon argues that Getliffe J., who heard a preliminary hearing in relation to Project Retire, dismissed the charges in relation to allegations that the Outlaws were a criminal organization. Mr. Tryon argues that Getliffe J. found that the agent, Mr. Tortillo, was an unreliable witness. He asserts that since the AGO relies on the same evidence, this court should also find that the evidence is unreliable, and thus it would be contrary to the interests of justice to order forfeiture. I cannot accept this argument. It is unclear to me if Getliffe J. had the same evidence before him as has been tendered on this application. But I have reviewed the voluminous evidence filed on this application. I am satisfied that the evidence filed before me is sufficiently reliable that it would not be clearly against the interests of justice to order forfeiture based on this evidence.
23The AGO has established on a balance of probabilities that the six clubhouses were proceeds of unlawful activity. Neither of the two exceptions set out in the CRA apply. As a result, the forfeiture order sought by the AGO is mandatory.
24In the event that I am wrong that the clubhouses are proceeds of unlawful activity, I go on now to consider whether the clubhouses should be forfeited as instruments of unlawful activity.
Issue Three: Are the six clubhouses forfeitable as instruments of unlawful activity?
25Section 7(1) of the CRA defines an "instrument of unlawful activity" as 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. Section 7(2) of the CRA creates a rebuttable evidentiary presumption that property used to engage in unlawful activity is likely to be so used again. That is, proof that the property was used as an instrument of unlawful activity in the past, in the absence of evidence to the contrary, is sufficient to establish that the property is likely an instrument of unlawful activity.
26In my view, the evidence overwhelmingly establishes that the clubhouses are instruments of unlawful activity. There is specific evidence before me of criminal activities facilitated through the use of the clubhouses; drug trafficking, conspiracy, illegal drug use, and the sale of stolen goods all took place in each of the respondent clubhouses. It is clear that the clubhouses served as a safe haven for members to meet and discuss their various criminal endeavors. Those criminal endeavours led to the acquisition of money and/or drugs, which in turn could be used to acquire other money and/or drugs.
27Thus, in my view the rebuttable presumption applies. There was no evidence to the contrary adduced. Therefore, the AGO has established on a balance of probabilities that the clubhouses are instruments of unlawful activity.
28As a result, the court must order forfeiture unless the party opposing forfeiture establishes that he or she is a "responsible owner", or that it would "clearly not be in the interests of justice" to order forfeiture.
29Section 7(1) of the CRA defines a responsible owner as 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. There is no suggestion that Mr. Tryon falls under the definition of a responsible owner. No other person has come forward to assert that he or she is a responsible owner.
30With respect to whether forfeiture would clearly not be in the interests of justice, Mr. Tryon relies on the same arguments advanced with respect to proceeds of unlawful activity. For the same reasons set out above, I find that he has not established that forfeiture would clearly not be in the interests of justice.
31Thus, I find that the AGO has established on a balance of probabilities that the six clubhouses are instruments of unlawful activity.
Conclusion on the application for forfeiture of the six clubhouses
32I am satisfied on a balance of probabilities that the six clubhouses are both proceeds and instruments of unlawful activity. I am further satisfied that neither the legitimate owner nor the responsible owner exceptions apply. Moreover, I am not persuaded that it would clearly not be in the interests of justice to order forfeiture.
33As a result, I order that the $238.97, which is the proceeds of the sale of the clubhouses, currently held with the Accountant of the Superior Court of Justice, plus all accumulated interest, shall be forfeited to the Crown in right of Ontario, pursuant to ss. 3 and 8 of the CRA. I further order that upon receipt of this Order, the Accountant of the Superior Court of Justice shall pay to the Minister of Finance $238.97, together with all accumulated interest.
34I turn now to my analysis of the remaining property for which the AGO seeks forfeiture.
B. The Remaining Property
35The police executed numerous search warrants as a result of Project Retire, and seized a vast amount of property that the AGO now seeks to have forfeited. In its written submissions, the AGO argued that the property that should be forfeited could be characterized as Outlaws paraphernalia. In oral submissions, however, it became apparent that the AGO was also seeking forfeiture of other property that did not fall within the category of Outlaws paraphernalia.
36Mr. Tryon argues that the AGO has failed to establish that the paraphernalia is either proceeds or instruments of unlawful activity. In the alternative, he argues that to the extent the CRA would allow for forfeiture of Outlaws paraphernalia, it violates several rights provided for in the Charter.
37I will first deal with the issues relating to the property characterized as Outlaws paraphernalia, including any constitutional arguments raised. I will then turn to the arguments with respect to the other property that the AGO submits should be forfeited.
Issue One: Are the items of Outlaws Paraphernalia forfeitable as instruments of unlawful activity?
38The AGO argues that Outlaws paraphernalia is a "privilege and reward of membership" in a criminal organization and that it is "through the use of the paraphernalia that the organization is able to maintain their control over the 'territory' in which they commit unlawful activity." Thus, the AGO argues that all seized items that have the Outlaws name, logo, symbol or colours must be forfeited as instruments of unlawful activity.
39The Outlaws paraphernalia that the AGO seeks to have forfeited can be grouped into two categories: (i) items that can be worn, such as jackets, vests, patches, t-shirts and jewelry; and (ii) items that are primarily for private use or decoration, such as photographs, posters, mirrors, calendars, furniture, cards, tickets, playing cards, mugs, stickers and various other Outlaws memorabilia and bric-a-brac.
40I will address each category in turn.
(i) Outlaws paraphernalia that can be worn
41Recently, in Attorney General (Ontario) v. 855 Darby Road, Welland (In Rem), 2017 ONSC 4953; aff'd 2019 ONCA 31, at para. 109, Akbarali J. held that items that identify the wearer as having official status within the Hells Angels were instruments of unlawful activity as they are "used to intimidate rival gangs and the public, and to signal the wearer's trustworthiness to the criminal community. By doing so, these items are used to engage in unlawful activity that is likely to result in the acquisition of other property, including money from drug transactions."
42In my view, the same analysis applies to jackets, vests, patches, jewelry and other items that can be worn and that identify the wearer as a member of the Outlaws. When members wear these items, they are clearly communicating – to the world at large - their affiliation with a criminal organization. I find that it is likely that one of the reasons an individual would seek to show their affiliation with such an organization in such an outward display would be to intimidate others in order to facilitate unlawful activity, which in turn would result in the acquisition of other property such as money or drugs.3 Thus, I find that the AGO has established on a balance of probabilities that items that can be worn and that identify the wearer as a member or probationary member of the Outlaws are instruments of unlawful activity.
43As a result, these items are forfeitable unless one of the two exceptions apply. There is no suggestion that the responsible owner exception applies. Amicus Curiae, however, argues that these items have expressive content and thus are constitutionally protected. Therefore, he submits, it would clearly not be in the interests of justice to order forfeiture of these items. In my view, however, the analysis regarding freedom of expression should not be imported into the interests of justice analysis, as that would effectively circumvent any s. 1 analysis. Thus, I find that the AGO has established on a balance of probabilities that items such jackets, vests, patches, jewelry and other items that can be worn and that identify the wearer as a member or probationary member of the Outlaws must be forfeited.
44On the other hand, for similar reasons to those set out in 855 Darby, at paras. 108 and 110, I find that the AGO has failed to establish that support wear, which does not identify the wearer as a member, is an instrument of unlawful activity. Support wear are clothes sold by the Outlaws to the general public. The AGO argued that money from support wear went to the financial benefit of the Outlaws. While that may be, there is no evidence before me that such items were either proceeds of unlawful activity or instruments of unlawful activity. Thus, I decline to order forfeiture of such items.
45I turn now to consider Outlaws paraphernalia that are primarily for private use or decoration.
(ii) Outlaws paraphernalia that are primarily for private use or decoration
46When assessing whether the AGO has established that Outlaws paraphernalia designed primarily for private or decorative use are instruments of unlawful activity, I keep in mind that the CRA is not designed to authorize forfeiture if there is "some chance", or even a "good chance" of the property being used to engage in unlawful activity (or in a manner that results in the acquisition of other property, or in a manner that result in serious bodily harm): AG Ontario v. Kittiwake Sailboat, 2015 ONSC 6106, at paras. 18-22. Rather, it must be likely.
47I agree with the submission of the Amicus Curiae that there is insufficient evidence before me to establish that the name, logo, or slogan of the Outlaws, by themselves, render any item an "instrument of unlawful activity." To take an extreme example, a bath towel with the Outlaws logo, used solely for the owner's private use in the washroom, could not reasonably be said to be an instrument of unlawful activity. That is, such an item would not likely be used to facilitate unlawful activity.
48Similarly, in my view items that are primarily for private use or decoration do not amount to instruments of unlawful activity simply because they may feature the Outlaws logo, slogan or symbol. The AGO has failed to establish on a balance of probabilities that things such as furniture, mirrors, stickers, Christmas cards, photographs of members and the various other Outlaws memorabilia and bric-a-brac at issue in this case are likely to be used for unlawful activity or have likely been used in such a way in the past: Darby, at paras. 110-111. Again, it is insufficient to find that these items may possibly be used for unlawful activity; rather, it must be likely. Thus, I decline to order forfeiture of these items.
49I turn now to consider the constitutional issues raised by Mr. Tryon.
Issue Two: Do the provisions of the CRA dealing with proceeds and instruments of unlawful activity violate the Charter?
50Mr. Tryon advances four constitutional arguments. I will address each in turn
1) Overbreadth and Vagueness
51Mr. Tryon argues that the sections of the CRA dealing with proceeds and instruments of unlawful activity are constitutionally infirm because they are overbroad and vague. As noted by the Amicus Curiae, however, the doctrines of overbreadth and vagueness do not provide a standalone basis for finding laws to be unconstitutional. Instead, they relate to either a s. 1 analysis, or the principles of fundamental justice in the context of s. 7 of the Charter.
52Section 7 of the Charter, however, is only engaged where state action affects "life, liberty or security of the person". Forfeiture of property does not engage s. 7 of the Charter: Ontario (Attorney General) v. $29,020 in Canadian Currency, [2005] O.J. No. 2820 (S.C.), at paras. 67-68; A&L Investments Ltd. v. Ontario, [1997] O.J. NO. 4199 (C.A.), leave to appeal to S.C.C. refused, 26396 (15 December 1997), at para. 34; Peter Hogg, Constitutional Law of Canada (5th ed.), (Scarborough, Ontario: Carswell), at 47-12.
53As a result, this argument cannot prevail.
2) Section 2(c) of the Charter
54Mr. Tryon also argues that the impugned provisions violate his freedom to engage in peaceful assembly pursuant to s. 2(c) of the Charter. However, I agree with the Amicus Curiae that the jurisprudence does not go so far as to suggest that the right to peaceful assembly includes a particular physical venue for assembly. Moreover, to the extent that s. 2(c) is engaged by forfeiture of the Outlaws paraphernalia, the relevant interests can be analyzed under s. 2(b).
3) Section 2(d) of the Charter
55Similarly, s. 2(d) of the Charter protects "the freedom to establish, belong to and maintain an association." This section, however, does not protect the right to meet or carry out an association's activities at a particular physical location, unless it can be shown that by so doing, the law interferes with the ability of the claimant to engage in the associational aspect of activities protected under s. 2(d): R. v. Kirton, 2007 MBCA 38, at para. 14; Club Pro Adult Entertainment Inc. v. The Queen, [2006] O.J. No. 5027 (S.C.), at paras. 180-182 (O.S.C.), aff'd 2008 ONCA 158, at paras. 5-7. I agree with the Amicus Curiae that I have no such evidence before me.
4) Section 2(b) of the Charter
56Finally, Mr. Tryon argues that the impugned sections of the CRA violate s. 2(b) of the Charter, which guarantees that everyone has "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication".
57The scope of protected expression under the Charter is broad. The Supreme Court has held that "all expressive content is worthy of protection", including content that "may not, in the view of some, have been particularly valuable, or may even have been offensive": Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, at paras. 58; 60.
58The Outlaws paraphernalia that I have determined is forfeitable includes jackets, vests, patches and jewelry. While I have found that such items are likely to be used for unlawful activity, that is not the sole use of such items. As argued by Mr. Tryon, such items are also important to members who view the organization as a family; the vests and patches are akin to a family crest. That is, apart from the criminal use that may be made of the items, they also have a non-criminal, legitimate use.
59I am persuaded that these items are expressive in nature: R. v. Bitz, 2009 SKPC 138, at para. 454. As argued by Mr. Tryon, they are items that communicate a sense of belonging; a sense of fellowship and family. The fact that this message of brotherhood is linked to an organization such as the Outlaws, or that the items are also likely to be used for unlawful activity, may attenuate their constitutional worth, but does not negate it, since the guarantee of free expression extends even to offensive speech: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at paras. 25-27.
60Once it is determined that the items in question have expressive content, thereby bringing them within the scope of s. 2(b) protection, the next question is whether the impugned legislation infringes the protection, either in purpose or effect: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.
61If the purpose of the impugned legislation is to restrict protected expression, then the s. 2(b) infringement is made out. Legislation will fall into this category where it specifically targets certain types of expression based on content, or where the legislation has the incidental purpose of restricting expressive activity in furtherance of some broader overall objective: R. v. Banks, 2007 ONCA 19, leave to appeal to S.C.C. refused, 31929 (23 August 2007), at para. 126.
62If the effect of the impugned legislation is to restrict expression, then the s. 2(b) infringement will be made out if the claimant shows that the expressive activity promotes one of the values underlying freedom of expression: Montreal, at para. 83. These values include: (1) seeking and attaining truth, which is an inherently good activity; (2) participation in social and political decision-making, which is to be fostered and encouraged; and (3) diversity in the form of individual self-fulfillment and human flourishing.
63There is no suggestion that the purpose of the impugned provisions of the CRA is to limit freedom of expression. Rather, it is clear that the purpose of the provisions is to forfeit instruments of unlawful activity in order to compensate victims of unlawful activity and to suppress the conditions that lead to unlawful activities: Chatterjee, at para. 3. The impugned provisions further these objectives by requiring a court to make a forfeiture order only where the AGO can show on a balance of probabilities that the items are instruments of unlawful activity. There is no evidence that the impugned provisions were designed to directly restrict expression because of any particular content. I agree with the AGO that the impugned provisions are content-neutral and do not have the purpose of seeking to suppress expression.
64In my view, however, the effect of the impugned provisions of the CRA is to limit freedom of expression, as it allows for the forfeiture of items that have an expressive component. The real question is whether the values underlying freedom of expression are implicated. As noted in Montreal, at para. 84, "Generally speaking, engaging in lawful leisure activities promotes such values as individual self-fulfillment and human flourishing." Based on the evidence before me of the legitimate aspects of the Outlaws paraphernalia that can be worn, I find that there is some connection to the values of individual self-fulfillment and human flourishing. Such paraphernalia promotes a sense of community and camaraderie that is separate and apart from any criminal use of such items. Thus, I find that the impugned provisions of the CRA violate s. 2(b) of the Charter.
65I turn now to consider whether this infringement is justified under s. 1 of the Charter.
5) Section 1 of the Charter
66Section 1 of the Charter recognizes that the individual rights enshrined therein are not absolute. The state may encroach upon individual rights so long as the criteria of s. 1 of the Charter are met. The AGO bears the onus of proving on a balance of probabilities that the s. 1 criteria is met. In meeting that onus, the AGO must first establish that the impugned provisions are prescribed by law. There is no dispute that this criteria has been met. Next, the AGO must establish that the sections dealing with instruments of unlawful activity have a pressing and substantial legislative objective. Again, there is no dispute that this criteria has been met.
67Finally the AGO must establish that the limitation on the right and the benefits of the impugned provisions are proportionate, having regard to whether:
(i) there is a rational connection between the impugned provisions and their objective;
(ii) the law minimally impairs the right to free expression; and
(iii) the salutary effects of the law outweigh its deleterious effect on freedom of expression.
I will address each in turn.
(i) Is there a rational connection between the impugned provisions and their objective?
68At the rational connection step in the analysis, the AGO must establish that there is a rational connection between the impugned provisions and their legislative goal. To meet this stage of the s. 1 analysis, there need only be "a casual connection between the infringement and the benefit sought on the basis of reason or logic". That is, the AGO must show that it is reasonable to suppose that the limit may further the goal, not that it will do so: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, at para. 43.
69I am satisfied that the impugned provisions are rationally connected to their legislative purpose. Forfeiting items that have been found on a balance of probabilities to be used to engage in unlawful activity furthers the objectives of the CRA. Notably, the impugned provisions are rationally connected to preventing property from being used to engage in unlawful activity.
(ii) Do the impugned provisions minimally impair the s. 2(b) right?
70In assessing whether the provisions minimally impair the s. 2(b) right, the court should ask whether there is an "alternative, less drastic means of achieving the objective in a real and substantial manner": Wilson Colony, at para. 55. Where complex social issues are involved, the minimal impairment requirement will be met if the legislature has chosen one of several reasonable alternatives: R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1344; and Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, at para. 43. I agree with the AGO that the suppression of conditions conducive to crime is a complex issue which impacts many provincial interests, "including health, policing resources, community stability and family welfare": Chatterjee, at para. 3.
71Here, while the impugned provisions permit the AGO to forfeit items, the power of the AGO is circumscribed by the requirement that the court be satisfied on a balance of probabilities that the items are, in fact, instruments of unlawful activity. The impugned provisions also provide the court with the discretion to decline to order forfeiture if the court is satisfied that either the responsible owner or interests of justice exceptions apply. This militates in favour of a finding that the provisions minimally impair the right.
72Further, as can be seen in the present case, the provisions are not so broad as to allow for forfeiture of Outlaws paraphernalia that are primarily for private or decorative use. A different s. 1 analysis may well apply if such items were captured by the impugned provisions. That they are not, in my view militates in favour of the conclusion that the provisions minimally impair the rights guaranteed under s. 2(b) of the Charter.
(iii) Are the impugned provisions proportionate in their effect?
73The test at this stage of the s. 1 analysis involves a consideration of the benefits to society accruing from the impugned provisions against the actual harm caused to the claimant's Charter rights: Wilson Colony, at paras. 73, 78.
74I agree with the AGO that the salutary benefits of the impugned provisions are significant. They assist in preventing property from being used to engage in unlawful activity. By contrast, the impact on the s. 2(b) guarantees is minimal.
(iv) Conclusion on s. 1 of the Charter
75The s. 2(b) infringement is justified under s. 1 of the Charter. The impugned provisions are prescribed by law. The purpose of the provisions, which includes preventing property from being used to engage in unlawful activity, is pressing and substantial. The AGO has established that the limitation on the right and the benefits of the impugned provisions are proportionate; the provisions are rationally connected to their legislative goals; the provisions minimally impair s. 2(b) rights; and the impugned provisions are proportionate in their effect.
Issue Three: Should other property be forfeited?
76The AGO seeks forfeiture of numerous other seized items that do not fall under the umbrella of Outlaws paraphernalia. I will address each in turn.
1) Currency
77Small amounts of currency were seized from the various Outlaws clubhouses. For example, the police seized $21.58 in change, and $115 in bills from 442 Egerton Street. Mr. Tryon did not really contest that the currency fell within the ambit of proceeds of unlawful activity. In my view, for good reason. As noted above, the evidence establishes that members of the various Outlaw clubs made their living at least in part through criminal activity. Their money went towards dues. Their money was also used to make "donations" in order to buy alcohol from the club bar. It seems clear, therefore, that the currency found in the clubhouses came directly or indirectly from unlawful activity. The AGO has thus established on a balance of probabilities that the currency seized is proceeds of unlawful activity.
78There was no argument before me that either of the two exceptions to forfeiture noted above apply. As a result, I agree with the AGO that the currency seized is subject to forfeiture as proceeds of unlawful activity.
79I thus order that all currency seized under Project Retire and held with the police, is to be forfeited to the Crown in right of Ontario pursuant to ss. 3 of the CRA.
2) Documents and computers
80The police seized numerous documents, including what have been characterized as criminal organization documents, counter intelligence documents and club business documents. They also seized computers with hard drives and/or floppy disks/CDs that cannot be accessed. As set out in the affidavit of Lorie Blaskavitch, dated November 26, 2018, these were clubhouse computers, so it is likely that the computers would contain Outlaws-related documents similar to the ones seized.
81The AGO seeks forfeiture of these documents and computers. It argues that the documents were used in the past in the pursuit of various criminal activities that led to the acquisition of property such as money or drugs. Thus, the presumption arises that the documents are instruments of unlawful activity and there has been no evidence led to rebut that presumption.
82Mr. Tryon did not contest forfeiture of these items. He does not claim to be a responsible owner, nor does he assert that it is not in the interests of justice to forfeit. No other party has come forward to contest the forfeiture of these items.
83I am satisfied that the documents and computers fall within the definition of instrument of unlawful activity. As a result, I order that all criminal organization documents, counter intelligence documents, club business documents and computers with hard drives and or floppy disks/CD's that cannot be accessed be forfeited to the Crown in right of Ontario pursuant to ss. 8 of the CRA.
3) Personal Identification Not in the Name of an Interested Party
84The AGO seeks forfeiture of any seized identification that are not in the name of an interested party.
85Mr. Tryon does not contest forfeiture of such identification. No other party has come forward to contest forfeiture of such items. That said, I had no evidence before me to suggest that any such items were proceeds or instruments of unlawful activity.
86On the other hand, I can see no basis for handing over personal identification seized during a police investigation except to the corresponding named person. This property has been in the custody of the police since 2002; it must be dealt with in some fashion. Given these particular circumstances, in my view I have inherent jurisdiction deal with this property. Thus, I order that any personal identification not in the name of an interested party shall be destroyed by the OPP.
4) 'White Power' Memorabilia
87The AGO is seeking forfeiture of various items characterized as 'White Power' memorabilia. For example, a large flag with a swastika was seized from Mr. Tryon's residence. Other white power items were seized at various other locations.
88Mr. Tryon argues that these items are not meant to be racist, and instead are simply war memorabilia. I reject this argument. These items are clearly racist; they are objectionable, offensive and appalling.
89That said, it is not the job of this court to order forfeiture of items simply because they are offensive. There must be a basis in law. The AGO argues that because members of the Outlaws signed the swastika flag seized from Mr. Tryon, the flag is forfeitable. In my view, however, the fact that members may have signed the flag does not establish that the item is either proceeds or instruments of unlawful activity. I have no evidence before me to establish that it is likely that this item was obtained, in whole or part, as a result of unlawful activity. I also have no evidence before me to establish that this item 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. Similarly, there is no evidence before me to establish on a balance of probabilities that the other white power memorabilia that the AGO seeks to have forfeited are either proceeds or instruments of unlawful activity.
90Thus, as objectionable as these items are, there is no basis upon which this court can order that they be forfeited.
5) Weapons and Weapon Accessories
91The AGO also seeks forfeiture of numerous weapons and weapon accessories seized as a result of Project Retire. Mr. Tryon took a responsible position, and consented to forfeiture of most of such items seized from the properties with which he is associated. For example, he consented to forfeiture of numerous handgun holsters, shotgun shells, other assorted ammunition, bear guard spray, throwing knives and bullet proof vests.
92Mr. Tryon, however, takes issue with the forfeiture of a decorative dagger, a decorative knife and two swords in a carrying case (items 40.07, 40.10, and 40.12). He argues that these are collector's items. While the AGO argued that these particular items should be forfeited, there was insufficient evidence before me to establish that these specific items are either proceeds or instruments of unlawful activity. Nor is there any suggestion that the weapons which Mr. Tryon seeks to have returned are restricted or prohibited. Thus, there is no basis to find that these specific items should be forfeited.
93On the other hand, no one else came forward to make any claims with respect to any of the weapons seized from the other search warrant locations. It seems likely that such weapons would be used for unlawful activity that would likely lead to the acquisition of other property or lead to serious bodily harm. Thus, in my view, the weapons and weapon accessories seized from other search warrant locations are forfeitable as instruments of unlawful activity.
94I turn now to the procedure to be followed with respect to the return of items which have not been ordered forfeited.
C. Procedure for the Return of Items
95I have determined that certain items are not forfeitable. In addition to the items that were in dispute, there are numerous items that the AGO agrees should be returned to the appropriate parties. The items that the AGO agrees may be returned in relation to Mr. Tryon were canvassed in court. The other items that the AGO agrees may be returned have been listed in the affidavit of Lori Blaskavitch, dated November 27, 2018.
96To facilitate the orderly return of such items, I order that a copy of the order flowing from these reasons shall be served by mail on the interested parties, listed in the attached Schedule "A".
97I further order that items will only be released to the parties as set out in the attached schedule "A". The party shall provide a written request within 60 days of the date that the order was mailed to the party, to advise if he or she requests the return of the items. The request must be received in written correspondence and include the party's name, address, telephone number and email address (if available). The request shall be made by one of the following methods:
By fax, to 416 314-3714;
By email to lisa.will@ontario.ca; or
By mail or courier to Civil Remedies Office, Ministry of the Attorney General, 77 Wellesley Street West, P.O. Box 555, Toronto, Ontario, M7A 1N3. This should be to the attention of Lisa Will.
98I further order that the return items shall be released by the OPP to the party on a date, time and place to be scheduled by the OPP. The date shall be scheduled within 120 days of the request.
99If a written request is not received within 60 days of the date that the order was mailed, or if the items are not picked up by the party on the agreed upon date, time and place, the items shall be disposed of by the OPP.
100If two or more parties make a request for the return of items from the same site, the AGO shall write to the requesting parties and advise of the other claims. Those parties will have 30 days from the date of the AGO's letter, to provide the AGO with written correspondence, advising what items shall be returned to each party. If the AGO does not receive written correspondence within 30 days, the items shall be disposed of by the OPP.
III. Costs
101The AGO and Mr. Tryon agree that no costs should be awarded in this matter. As a result, I order that each party is responsible for their own costs.
Justice Heather McArthur
Date: January 25, 2019
Schedule "A"
| Site # | Site Location | Interested Party |
|---|---|---|
| 1 | Ajax Clubhouse | Neil Cleland |
| 2 | London Clubhouse | Randal Robitaille/Clifford Tryon |
| 3 | Ottawa Clubhouse | Mark Oakley/Jeffrey Nichol |
| 4 | Sault Ste. Marie Clubhouse | Alex McKenna |
| 5 | South Simcoe Clubhouse | Neil Cleland |
| 6 | St. Catharine’s Clubhouse | Mario Parente/Alex McKenna |
| 7 | Toronto Clubhouse | Neil Cleland |
| 8 | Windsor Clubhouse | Randal Robitaille/Clifford Tryon |
| 9 | Woodstock Clubhouse | Neil Cleland |
| 10 | Residence of Andrew Billik | Andrew Billik |
| 11 | Brampton Custom Cycle | Dealt with in full (2009-10-15 Order under CV-09-374674) |
| 12 | Residence of James Bronson | James Bronson |
| 13 | Residence of Bradley Cole and Don Gimmer | Don Gimmer |
| 14 | Neil Cleland’s person | Neil Cleland |
| 15 | Residence of Pedro DaCosta | Pedro DaCosta |
| 16 | Residence of Ryan Daigneault | Ryan Daigneault/Randal Robitaille/Clifford Tryon |
| 17 | Residence of Armando Dalbo | Armando Dalbo |
| 18 | Residence of Floyd Deleary | Karen Antone (mother of Floyd Deleary, deceased) |
| 19 | Residence of Philip Demers | Philip Demers |
| 20 | Residence of Jeremiah Dezeeuw | Herman Dezeeuw (father of Jeremiah Dezeeus, deceased) |
| 21 | Residence of Mario Parente, Americo Roque, Luis Ferreria | Dealt with in full (2013-12-18 Order under CV-09-374674) |
| 22 | Residence of Thomas Harmsworth | Thomas Harmsworth |
| 23 | No search completed at this site | N/A |
| 24 | Residence of Jack Knoop | Jack Knoop |
| 25 | Jack’s Garage | Dealt with in full (2013-12-18 Order under CV-09-374674) |
| 26 | Residence of Michael Robert Jarvie | Michael Jarvie |
| 27 | Residence of Kevin Legere | Kevin Legere |
| 28 | Residence of Claude Longval | Claude Longval |
| 29 | Residence of Robert MacMillan | Robert MacMillan |
| 30 | No search completed at this site | N/A |
| 31 | Residence of Tim Malott | Tim Malott |
| 32 | Residence of Alex McKenna | Alex McKenna |
| 33 | Residence of Clifford McQueen | Clifford McQueen |
| 34 | Residence of William Mellow | N/A (all items dealt with) |
| 35 | Residence of Kenneth Mote | N/A (all items dealt with) |
| 36 | No search completed at this site | N/A |
| 37 | Residence of Paul Nicholls | Paul Nicholls |
| 38 | Residence of Scott Pickard | Scott Pickard |
| 39 | Residence of Christopher Scheffee | Christopher Scheffee |
| 40 | Residence of Richard Bitterhoff and Dean Scott | Max Burnie (son of Richard Bitterhoff, deceased) Brittney Scott (daughter of Dean Scott, deceased) |
| 41 | Residence of Robert Sears | Robert Sears |
| 42 | Shiatsu Massage Parlour | Arthur Shura |
| 43 | Residence of Bruce Shields | Marion Visneskie and Wayne Shield (next of kin to Bruce Shields, deceased) |
| 44 | Residence of Arthur Shura | Arthur Shura |
| 45 | Residence of Andrew Thomas Simmons | N/A (all items dealt with) |
| 46 | Residence of Gary Clifford Tryon | Gary Clifford Tryon |
| 47 | Residence of Michael Young | Michael Young |
| 48 | Residence of Dan Moore | N/A (all items dealt with) |
| 49 | Residence of Charles Yorston | N/A (service dispensed on C. Yorston – see Order of April 17, 2009) |
| 50 | Residence of Joseph Hill | Joseph Hill |
| 51 | Mario Macedo | N/A (all items dealt with) |
| 52 | Rayne Doherty | N/A (all items dealt with) |
| 53 | Vincenzo Basile | Vincenzo Basile |
| 54 | Marcus Cornelisse | Paul Cornelisse, Leigh Fader, Henry and Mary Cornelisse (next of kin to Marcus Cornelisse, deceased) |
COURT FILE NO.: CV-09-374674
DATE: 20190125
ONTARIO
SUPERIOR COURT OF JUSTICE
Attorney General of Ontario
– and –
2192 Dufferin Street, Toronto (the property registered to 953667 Ontario Ltd.), 442 Egerton Street, London (the property registered to 552346 Ontario Ltd.), 434 Egerton Street, London (the property registered to 552346 Ontario Ltd.), 144 Oakdale Street, St. Catharines (the property registered to 938074 Ontario Ltd.), 275 Spruce Street, Sault Ste. Marie, 3465 Wilkinson Lane, Windsor (the property registered to 552346 Ontario Ltd.) and other property (in rem)
REASONS ON APPLICATION FOR FORFEITURE
H. McArthur J.
Released: January 25, 2019
Footnotes
- In addition to the pleas of guilt stemming from Project Retire, where members acknowledged that the Outlaws are a criminal organization, see R. v. Rudge, 2013 ONSC 5010, at para. 2, where the court held that the Outlaws are a criminal organization with similar objectives and capabilities to the Hells Angels Motorcycle Club: see also R. v. Mallot, [2002] O.J. No. 5274, at para. 8; R. v. Shura, [2002] O.J. No. 5268 (S.C.), at para. 45; R. v. Billick, [2005] O.J. No. 5176 (S.C.).
- In so finding, I rely on the affidavit evidence of P.C. Shawn Floyd and P.C. Thomas Murphy. I also rely on the affidavit evidence of D/C Robert McCleary and D/C Robert Deane, who were both put forward to provide expert opinion evidence regarding the origins, composition, purposes and activities of the Outlaws. Both officers signed an Acknowledgment of Expert's Duty as required by r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Having reviewed their qualifications, and considering the applicable law, I am satisfied that they are qualified to give expert opinion as delineated: R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Abbey, 2009 ONCA 624; and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. I note that Mr. Tryon did not seek to cross-examine any of the officers on their affidavits.
- Although not dealing with the CRA, in R. v. Lindsay, [2005] O.J. No. 2870 (S.C.), aff'd 2009 ONCA 532, leave to appeal to the S.C.C. refused, 33455 (4 March 2010), at para 1085, Fuerst J. noted that when the defendants went to a complainant's home wearing jackets with the symbols of the Hells Angels, including the name and distinctive death head logo, "they presented themselves not as individuals, but as members of a group with a reputation for violence and intimidation": see also R. v. Hells Angels Motorcycle Corporation, [2009] O.J. No 3503 (S.C.), at para. 24.