Court File and Parties

COURT FILE NO.: CV-22-2347 DATE: 2022-12-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Ontario (A.G.), Plaintiff AND: $232,405 in Canadian Currency and 150 in Euros (in REM), Defendants

BEFORE: J.E. Mills J.

COUNSEL: Heather Burnett and M. Campbell, for the Plaintiff Jacqueline An, for the Defendant

HEARD: December 15, 2022

Endorsement

[1] The Crown seeks a preservation order pursuant to the Civil Remedies Act, 2001 S.O. 2001, c. 28 in respect of $232,405 CDN and 135 Euros seized by the Halton Regional Police Service on March 30, 2022. The funds were ordered to be returned to Eugenio Russo by Disposition Order dated October 7, 2022, issued pursuant to s. 490 of the Criminal Code.

[2] Counsel for Mr. Russo resists this motion on the basis that it is a collateral attack on the Disposition Order, for which an appeal was not taken. In this regard, she relies on the decisions of Ontario (Attorney General) v. Cole-Watson, 2007 CanLII 15229 (ONSC) and R. v. Raponi, 2004 SCC 50. The latter decision is not relevant as it did not address the conflict of whether the provincial Crown may pursue relief under the Civil Remedies Act when the federal Crown has sought the release of the assets pursuant to the Criminal Code.

[3] The decision of Lin v. Attorney General of Ontario, 2008 CanLII 68886 did address this very issue and found no conflict between the two remedies. Baltman J. found (at paragraph 49) that “An order returning property to a person under s. 490(9) only establishes a person’s right to regain property after a seizure and detention in the context of a criminal investigation. It does not purport to settle the issue of that person’s entitlement to the money at common law or under statute as against other potential claimants.” That includes proceedings commenced under the Civil Remedies Act. Baltman J. summarized it quite succinctly when she said at paragraph 64 that “the two regimes may be concerned with the same property and even the same underlying conduct, but their goals are entirely different: s. 490 is focussed on the person; the CRA is about the property.”

[4] I adopt the reasons of Baltman J. and find there is no conflict between the two regimes, such that the Crown’s motion for a preservation order is not a collateral attack on the Disposition Order.

[5] I reject the submissions of counsel that this case out to be distinguished because the Disposition Order refers only to s. 490 as opposed to s. 490(9) of the Criminal Code. There is no merit to this submission.

[6] Order to go as signed. The Order shall be immediately valid and enforceable, despite any delays in entering the Order within the Court system.

J.E. Mills J.

Date: December 15, 2022