Court File and Parties

COURT FILE NO.: CV-21-00654808

DATE: 20210408

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ATTORNEY GENERAL OF ONTARIO

AND:

$12,955 in CANADIAN CURRENCY (in rem)

BEFORE: Mr. Justice Chalmers

COUNSEL: K. Toderishena, for the Applicant

HEARD: April 8, 2021, by teleconference

ENDORSEMENT

[1] The Attorney General of Ontario seeks a Preservation Order under the Civil Remedies Act, 2001, with respect to the amount of $12,955 in Canadian currency that was seized from Jaida Rydelle Walters and Fahmi Osman by the Ontario Provincial Police during a roadside investigation on May 22, 2020.

[2] The OPP stopped the vehicle owned by Enterprise Rent-a-car and operated by Ms. Walters. Mr. Osman was a passenger in the vehicle. They identified themselves as common-law spouses. There was an odour of cannabis in the vehicle. The police conducted a search of the vehicle pursuant to the Cannabis Control Act, 2017. They located and seized 1 gram of suspected cocaine, a cover for a digit scale with cocaine residue, 6-7 cellular phones, and $9,285. In addition, there was $3,470 in Ms. Walters wallet and $200 in Mr. Osman’s pocket. A total of $12,955 in currency was seized.

[3] Mr. Osman and Ms. Walters were charged with possession of a controlled substance, possession of a controlled substance for the purpose of trafficking and possession of property obtained by crime. Ms. Walters was charged with operating a vehicle with cannabis readily available.

[4] The Attorney General takes the position that there are reasonable grounds to believe that the currency seized is the proceeds or an instrument of unlawful activity. Ms. Walters has made a claim on the currency. The Attorney General seeks an order preserving the property until the civil forfeiture application can be determined.

[5] Under sections 4 and 9 of the Civil Remedies Act, the court may make an order for the preservation of property if there are reasonable grounds to believe that the property is the proceeds or an instrument of unlawful activity, unless it would clearly not be in the interests of justice to do so. “Reasonable grounds” is a lower standard of proof that that of the “balance of probabilities”: Ontario (Attorney General) v. $61,688.12 in Canadian Currency (in Rem), [2009] O.J. No.: 3874, at paras. 21-25.

[6] I reviewed the affidavit of D.C. Mason. He deposed that the following factors support a finding of reasonable grounds to believe that the seized currency is the proceeds and an instrument of unlawful activity:

a. Drug dealing is a cash business;

b. Mr. Osman has had previous involvement in drug related unlawful activity;

c. There was a digital scale with cocaine residue and that digital scales are often used to measure out quantities during drug transactions;

d. Rental vehicles are often used by drug dealers to provide anonymity and protect their personal vehicles from police seizure;

e. Police found baking soda in the vehicle which is known to be used to dilute illicit substances;

f. Both parties are unemployed and could not account for the large amount of currency; and

g. The currency was stored in a rental vehicle and not in a bank or other safe storage.

[7] I find that the Attorney General has met the burden to prove that there is a reasonable suspicion that the seized currently is proceeds and instrument of unlawful activity.

[8] Although served with the application, Ms. Walters and Mr. Osman have not provided any evidence that a preservation order is clearly not in the interests of justice. The “interests of justice” concerns will apply only if the relief would be manifestly harsh or draconian to order forfeiture of the currency seized: Ontario (Attorney General). v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (in Rem) [2011] O.J. No.: 2122, (ONCA) at para. 84, 85.

[9] I am satisfied that there is no basis for the application of the “clearly not in the interests of justice” exception in the circumstances of this case.

[10] The Attorney General has satisfied the threshold for the Preservation Order. The Order will go in accordance with the draft Order filed and signed by me.

DATE: April 8, 2021