COURT FILE NO.: CV-19-632262 DATE: 20210618
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ATTORNEY GENERAL OF ONTARIO Applicant
- and -
$543,515 IN CANADIAN CURRENCY (in rem) Respondent
Amy Then for the Applicant.
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is a motion by the Attorney General of Ontario, pursuant to sections 4 and 9 of the Civil Remedies Act, 2001,[^1] for an order preserving $543,515 in Canadian currency seized on September 29, 2016 by the Peel Regional Police Service. For the reasons that follow, the motion is granted.
B. Facts
[2] On September 28, 2016, David Baichoo met Nam Pham in an underground parking garage. Mr. Baichoo stabbed Mr. Pham 15-19 times. Mr. Pham died at the scene. The police commenced a murder investigation.
[3] At the crime scene, police followed a trail of blood from Mr. Pham’s body to a grey Toyota Camry parked in spot V41. The trunk was open, and the vehicle’s engine was still running. There was blood on the front of the vehicle, the driver’s side door and on the ground next to the driver’s side door. It was later determined that the Toyota Camry was registered to Mr. Pham. The police found Mr. Pham’s Samsung cellphone, a Blackberry cellphone, a wallet containing Mr. Pham’s driver’s licence, and a credit card and a debit card in Mr. Pham’s name.
[4] The police obtained surveillance video from the underground parking garage. The video showed that at approximately 1:00 p.m. a Ford Focus driven by Mr. Baichoo pulled into the parking garage with the Camry driven by Mr. Pham following. The vehicles parked side by side. Mr. Pham and Mr. Baichoo exited their vehicles and walked to an area not covered by video cameras. About one minute later, an injured Mr. Pham is seen running away from Mr. Baichoo toward the exit. Mr. Baichoo gets into the Ford Focus and starts the vehicle. Mr. Pham exits the parking spot but pauses as the Ford Focus approaches. The Ford exits the garage.
[5] The next day, September 29, 2016 at around 11:20 a.m. the police executed a search warrant at Mr. Pham’s residence, a one-bedroom condominium unit that had been purchased by Mr. Pham’s parents Huu-Dieu Pham and Thanh Huyen Pham.
[6] A search of the residence revealed, among other things: (a) a folding pocket knife with a blade approximately 9 cm long; (b) Cocaine - a total of 18.9 grams of a powdered substance - samples were analyzed and found to be cocaine; (c) Phenacetin (a regulated substance under the Food and Drugs Act often used as a cutting agent in the illicit drug trade) - a total of 20 grams of a powdered substance - a sample was analyzed and found to be Phenacetin; (d) Methamphetamine (a controlled substance) - 1 gram of a crystal substance – the substance was analyzed and found to be methamphetamine; (e) Ketamine (a controlled substance) - a total of 2 grams of a crystal substance – the substance was analyzed and found to be Ketamine; (f) MDMA (a controlled substance) - a total of 1 gram of a powdered substance – the substance was analyzed and found to be MDMA; (g) Crystal MDA (a controlled substance) - a total of 2 grams of a crystal substance – the substance was analyzed and found to be MDA; (h) Powdered MDA (a controlled substance) - a total of 5 grams of a powdered substance - a sample was analyzed and found to be MDA; (i) MDA (a controlled substance) and MPPA (not a regulated substance) - a total of 253 grams of a chunky substance - initially and incorrectly believed to be the cannabis derivative hashish - a sample of this substance was analyzed and found to be a mixture of MDA and MPPA; (j) Cannabis (a controlled substance at the time) - a total of 321.3 grams of a green leafy substance – samples were analyzed and found to be cannabis; (k) Hydromorphone (opioid - a controlled substance) - a total of 60 identical capsules – a sample (one capsule) was analyzed and found to be Hydromorphone; (l) Psilocybin (magic mushrooms – a controlled substance) - a total of 493 grams of stems - a sample of was analyzed and found to be Psilocybin; (m) a Blackberry cellphone and charger; (n) Three digital scales; (o) a money counter; (p) Drug packaging (plastic baggies); (q) a notebook containing what appear to be debt lists as well as basketball picks; and (r) Canadian currency in seven different locations.
[7] The seven different locations where the currency was found were: (a) in a cooler bag located behind the bedroom door; (b) in a brown Longo’s plastic grocery bag located in the second drawer of the filing cabinet in the bedroom; (c) in a white bag located in the third drawer of the filing cabinet in the bedroom; (d) in an Air Jordan brand shoe box located in the third drawer of the filing cabinet in the bedroom (e) loose bundles located in the fourth (bottom) drawer of the filing cabinet in the bedroom; (f) in a Lebron James brand shoebox located in the bottom left drawer of a dresser in the bedroom; and (g) a single $20 bill located on a glass table in the bedroom.
[8] $543,515 in Canadian Currency was seized.
[9] Mr. Pham died intestate. He did not have a will and no administrator has been appointed for his Estate. Mr. Pham was not married and did not have any children. Mr. Pham’s parents, Huu-Dieu Pham and Thanh Huyen Pham are both alive. Yi Ni (Theresa) Lin was Mr. Pham’s girlfriend at the time of his death. Ms. Lin and Mr. Pham were not married and they did not live together.
[10] Neither Mr. Pham’s next of kin nor any individual representing Mr. Pham’s Estate has requested the return of the seized currency.
[11] Police conducted interviews with various members of Mr. Pham’s family and some of his friends. The police learned the following:
a. Mr. Pham’s brother, Peter Pham, told police that Mr. Pham was associated with drugs, that they had done drugs such as cocaine together, that Mr. Pham could get any drug in any amount whenever he wanted, and that Mr. Pham had a group of friends that “dealt with bad shit”.
b. Mr. Pham’s best friend, Konstantine “Kosta” Doukas told police that Mr. Pham did “deliveries” but that they did not discuss Mr. Pham’s drug-related activities. Kosta told police that he opened his junk removal business three or four years prior. He said at the outset, Mr. Pham worked for him every day and was paid around $100 per day. During the first year of the business, Mr. Pham started doing “deliveries” and told Kosta that he was paid $500 to pick something up and drop it off. Kosta said that at the beginning, Mr. Pham did deliveries about once a week. As Mr. Pham began doing more deliveries, he worked less with Kosta. At the time of his death, Mr. Pham did not work with him at all. However, Kosta covered for Mr. Pham and told people, including Mr. Pham’s parents and girlfriend, that Mr. Pham was working with or socializing with him when he was not, including on the morning of Mr. Pham’s death. The day before he was murdered, Kosta asked Mr. Pham if he could work with him the next week. Mr. Pham told Kosta he was busy and did not know. Kosta told police that he and Mr. Pham did not discuss Mr. Pham’s drug-related activities and he did not know how much Mr. Pham was being paid for deliveries at the time of his death.
c. Mr. Pham’s brother, Viat Pham told police that two years prior to his brother’s death, Mr. Pham asked him if he wanted to make MDMA. Viat, a graduate student with a science background, told Mr. Pham he would think about it. Several months later, Mr. Pham informed Viat that he had found someone else to assist in making MDMA.
d. Sam Almasi, a friend of Mr. Pham’s, told police that Mr. Pham lived two lives. Mr. Almasi, Kosta and Mr. Pham were part of a group of about 10 friends who got together for activities like golfing and camping. However, Mr. Pham had another group of friends that Mr. Almasi did not know who were “up to no good”. Mr. Almasi said that Mr. Pham went to Peru with that group of friends and had changed when he returned. Mr. Almasi also stated that it was strange that Mr. Pham was doing low-paying manual labour but spent large amounts of money on things such as Raptors Season Tickets.
e. Mr. Pham’s brother Viat, his girlfriend Theresa Lin, his best friend Kosta and friend Colin Lee all told police that the only phone number that they were aware of for Mr. Pham was the one associated to his Samsung. Theresa Lin stated that she was not aware of Mr. Pham having another phone or a Blackberry.
f. Mr. Baichoo admitted at trial to being a drug courier and communicating with other couriers by PGP encrypted Blackberries provided by his employer. He said he communicated with Mr. Pham via Mr. Pham’s PGP Blackberry.
[12] Mr. Baichoo was arrested and charged with one count of first-degree murder. Mr. Baichoo was tried twice, with the first trial declared a mistrial. Mr. Baichoo was found guilty of first-degree murder on August 14, 2019 and sentenced to life imprisonment with parole eligibility after 25 years on September 3, 2019.
[13] During both trials, Mr. Baichoo testified that he was a drug courier for a major criminal organization. He stated that, as a drug courier, he picked up and delivered kilograms of cocaine and tens of thousands of dollars in cash at a time. These pick-ups and deliveries were often to or from members of other major organized crime groups, like motorcycle gangs or the Triads. Mr. Baichoo testified that he believed Mr. Pham was a member of the Triads.
[14] On October 4, 2016, police made a Report to a Justice, pursuant to section 489.1 of the Criminal Code, in respect of the seized currency. On October 5, 2016, an Order of Detention of Items Seized, pursuant to section 490(1) of the Criminal Code, was issued authorizing police to hold the currency until the completion of all proceedings. The subject property was held as an exhibit during Mr. Baichoo’s prosecution for the murder of Mr. Pham.
[15] Ms. Lin has consulted with counsel in the within civil forfeiture application, a Notice of Appearance has been filed, and she has indicated that she is claiming an unspecified interest in the currency.
[16] A consent to preservation of the currency at issue and consent to draft order has been signed by Ms. Lin’s counsel on Ms. Lin’s behalf.
[17] A consent to preservation of the currency at issue and consent to draft order has been signed by the deceased’s parents, Huu Dieu Pham and Thanh Huyen Pham.
C. Discussion and Analysis
[18] The Civil Remedies Act, 2001[^2] 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. To achieve its purposes, the Civil Remedies Act, 2001 authorizes in rem forfeiture of property connected to criminal activity.[^3] 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.[^4]
[19] 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 section 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 an “instrument of unlawful activity”.
[20] Before the Attorney General seeks a preservation, the Attorney General will request the court to grant a preservation order. The Civil Remedies Act, 2001 sets out a two-pronged test for a preservation order.[^5] First, the court must be satisfied that there are reasonable grounds to believe that the property sought to be preserved is either “proceeds of unlawful activity” or an “instrument of unlawful activity”. Second, if the court is satisfied that the first part of the test has been met, then, the court “shall” make the preservation order “except where it would clearly not be in the interests of justice”.
[21] A reasonable ground to believe is a lower standard of proof than a balance of probabilities.[^6]
[22] Possession of bundled currency is circumstantial evidence that is consistent with the currency having been from drug trafficking, which is notoriously a cash business.[^7] The presence of a large quantity of cash in proximity to weigh scales and controlled substances leads to a strong inference of drug dealing.[^8]
[23] Because it is a known fact that persons involved in illegal drug activity are found carrying large sums of money from drug sales or purchases, the inference that arises when a person is found with large sums of money is that the money is the proceeds of unlawful activity or that the money is the instrument of unlawful activity and this factual circumstance calls for a credible and reasonable explanation as to why the funds are not connected to an unlawful activity.[^9] A level of suspicion calling for a credible answer arises where significant amounts of bundled currency are located in proximity to other indicia of drug trafficking.[^10] A respondent’s failure to provide a credible explanation for a legitimate source of the property, for possession of large amounts of money or an explanation for a lavish lifestyle without an apparent source of income may be considered by the court as part of the forfeiture analysis.[^11]
[24] The evidence in the immediate case establishes that there are reasonable grounds to believe that the seized currency is the proceeds and /or instruments of unlawful activity.
[25] In these circumstances, the court “shall” make the preservation order “except where it would clearly not be in the interests of justice”. At this juncture of the proceedings, no evidence has been proffered to establish that it would not be in the interests of justice to make a preservation order. In the immediate case, there are no known interests of justice considerations that would weigh against the issuance of an order preserving the subject currency.
[26] I, therefore, grant an Order pursuant to the Civil Remedies Act preserving the $543,515 in Canadian currency pending disposition of the forfeiture application.
[27] Further, I order the Peel Regional Police Service shall either: (a) deposit the $543,515 in Canadian currency with the Accountant of the Superior Court in an interest-bearing account to the credit of the Application; or (b) Maintain the funds in police custody at the discretion of the Director of Asset Management – Civil.
[28] I have signed the Order.
Perell, J.
Released: June 18, 2021
COURT FILE NO.: CV-19-632262 DATE: 20210618
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ATTORNEY GENERAL OF ONTARIO Applicant
- and -
$543,515 IN CANADIAN CURRENCY (in rem) Respondent
REASONS FOR DECISION
PERELL J.
Released: June 18, 2021
[^1]: S.O. 2001, c. 28. [^2]: S.O. 2001, c. 28. [^3]: Chatterjee v. Ontario (Attorney General), 2009 SCC 19 at paras. 3 and 4. [^4]: Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, [2007] O.J. No. 2102 (C.A.), aff’d 2009 SCC 19. [^5]: S.O. 2001, c. 28, ss. 4(2) and 9(2). [^6]: Attorney General v. $61,686.12 in Canadian Currency (in rem), [2009] O.J. No. 3874 at paras 22-25 (S.C.J.); Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100 at para, 114. [^7]: (Attorney General) v. $10,000.00 in Canadian Currency (In Rem), 2014 ONSC 944 at para. 14; Ontario (Attorney General) v. $9,616.98 in Canadian Currency (In Rem), 2011 ONSC 3820 at para. 7 (Div. Ct.). [^8]: Ontario (Attorney General) v. $39,460 in Canadian Currency (In Rem), 2015 ONSC 6727 at para. 18. [^9]: Ontario (Attorney General) v. $44,215 in Canadian Currency (In Rem), 2018 ONSC 4001; Ontario (Attorney General) v. $18,550.00 in Canadian Currency (In Rem), 2016 ONSC 2237 at para. 129; Ontario (Attorney General) v. $104,877 in U.S. Currency (In Rem), 2016 ONCA 71; Ontario (Attorney General) v. $11,900 in Canadian Currency (In Rem), 2015 ONSC 4583; Ontario (Attorney General) v. $10,000.00 in Canadian Currency (In Rem), 2014 ONSC 944 at paras. 21 and 32; Ontario (Attorney General) v. $138,650 in Canada Currency (In Rem), 2012 ONSC 7230; Ontario (Attorney General) v. $42,885 in Canadian Currency (In Rem), 2012 ONSC 4843; Ontario (Attorney General) v. $1,650 Canadian Currency (In Rem), [2008] O.J. No. 2076 (S.C.J.); Ontario (Attorney General) v. Chatterjee, 2007 ONCA 406, [2007] O.J. No. 2102 at para. 46 (C.A.), aff’d 2009 SCC 19. [^10]: Ontario (Attorney General) v. $10,000.00 in Canadian Currency (In Rem), 2014 ONSC 944 at paras. 13-15; Attorney General of Ontario v. Lok, 2008 ONCA 632 at para 6; Ontario (Attorney General) v. $1,650 Canadian Currency (In Rem), [2008] O.J. No. 2076 at para. 3 (S.C.J.). [^11]: Ontario (Attorney General) v. $14,700.00 in Canadian Currency (In Rem), 2016 ONSC 910 at para. 42; Ontario (Attorney General) v. $104,877 in U.S. Currency (In Rem), 2014 ONSC 5688 at para. 35; Ontario (Attorney General) v. $9,475 in Canadian Currency (In Rem), 2014 ONSC 3711; Ontario (Attorney General) v. $10,000.000 in Canadian Currency (In Rem), ONSC 944 at paras. 21 and 32; Ontario (Attorney General) v. $25,680 in Canadian Currency (In Rem), [2009] O.J. No. 3734 (S.C.J.); Ontario (Attorney General) v. $1,650 in Canadian Currency (In Rem), [2008] O.J. No. 2076 (S.C.J.).