COURT FILE NO. : CV-23-00694256-0000 DATE : 20230320

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Attorney General of Ontario AND: $32,000 in Canadian Currency (in rem)

BEFORE: Justice Chalmers

COUNSEL: B. Fragomeni for the Applicant N. Ohenhen for the Respondent

HEARD: March 20, 2023

ENDORSEMENT

Overview

[1] The Applicant/Moving Party brings this motion on notice, seeking an order for the preservation of $32,000 in Canadian currency pending the final disposition of the underlying application for civil forfeiture of the currency to the Crown. The motion is brought pursuant to s. 4(1) and 9(1) of the Civil Remedies Act, 2001, S.O. 2001, c. 28 (CRA). Under sections 4 and 9 of the CRA, 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.

[2] The Applicant argues that there are reasonable grounds to believe that the currency is proceeds of an instrument of unlawful activity. The currency was seized when the police executed search warrants at Mr. Ohenhen’s home on April 22, 2022. Mr. Ohenhen argues that there is insufficient evidence to establish reasonable grounds to believe that the currency is proceeds of unlawful activity. He states that he runs a cleaning business in which his customers pay in cash. He also argues that the Crown’s motion to preserve the currency is intended to deprive him of funds which could be used to allow him to retain counsel to prosecute a wrongful conviction/malicious prosecution action against the Crown.

Factual Background

[3] The police were investigating a hit and run motor vehicle accident that occurred on April 14, 2022. It is alleged that following the accident Mr. Ohenhen assisted the driver of the vehicle to escape from police. A search warrant for his residence was executed on April 22, 2022. The police found and seized a blue sweater, 6 cellular telephones, and $32,000 in cash. The seized currency was comprised of $100 bills. $30,000 were in three bundles bound with elastics in a safe and $2,000 in two bundles was found on a table. On the same day, Mr. Ohenhen was charged with failing to stop after an accident, obstructing a peace officer, public mischief and accessory after the fact to commit an indictable offence. The charges are still pending before the court.

[4] The Applicant states that Mr. Ohenhen has a criminal record, and also has several other charges pending before the Court. The criminal record includes convictions for possession of a schedule I substance for the purpose of trafficking in 1999, possession of a concealed weapon in 1999, possession of a schedule I substance in 2001, assault with intent to resist arrest in 2003, possession of a restricted firearm in 2005, assault causing bodily harm and trafficking of a schedule I substance is 2006, robbery in 2008, assault peace officer in 2015, and conspiracy to commit an indictable offence in 2016.

[5] On July 21, 2021, Mr. Ohenhen was charged with possession of a weapon, mischief/damage to property, possession of a schedule I substance for the purpose of trafficking, possession of the proceeds of property and possession of a firearm when prohibited from doing so. On October 19, 2022, Mr. Ohenhen was charged with possession of a schedule I substance for the purpose of trafficking, and possession of proceeds of crime. The charges laid in July 2021 and in October 2022 are still pending before the court.

[6] On October 25, 2022, Justice of the Peace M. J. Callahan signed a return order for the currency. On February 6, 2023, the Crown issued the Application for a forfeiture order.

Analysis and Discussion

(i) Reasonable Grounds to Believe the Property is Proceeds or an Instrument of Unlawful Activity

[7] Under section 4 of the Act, the Court may make an order for the interim preservation of the property if there are reasonable grounds to believe that the property is proceeds of unlawful activity or is an instrument of unlawful activity, unless it would clearly not be in the interests of justice to do so: Act, s. 4.

[8] “Reasonable grounds” is a lower standard of proof than that of the “balance of probabilities”: Ontario (Attorney General) v. $61,688.12 in Canadian Currency (in Rem), 2009 ONSC 4700, at paras. 21-25. This standard requires more than mere suspicion but less than the civil standard of proof on a balance of probabilities: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, at para. 114.

[9] “Proceeds of unlawful activity” is defined as any property acquired, directly, or indirectly in whole or in part, as a result of unlawful activity: Act, s. 2. “Unlawful activity” is given a broad definition and encompasses any act or omission that is an offence under any Act of Canada, Ontario or another province of territory: CRA, s.2 and s.7. “Proceeds of unlawful activity” are property acquired directly or indirectly, in whole or in part, as a result of unlawful activity: Chatterjee v. Ontario (Attorney General), 2009 SCC 19, at paras. 21, 46 and 47.

[10] A proceeding under the CRA is focused on whether the property itself is the proceeds of crime. It is not necessary for the Crown to prove a particular offence against a particular person: Chatterjee v. Ontario (Attorney General), 2009 SCC 19, at para. 21.

[11] Here, the Applicant relies on the prior convictions of Mr. Ohenhen to support its position that there are reasonable grounds to believe the currency is proceeds of unlawful activity. The criminal record includes convictions for trafficking of a schedule I substance. A respondent’s criminal history is admissible and may be probative as similar fact evidence of the respondent’s past unlawful activity. Attorney General v. $5,545 in Canadian Currency (In Rem), 2011 ONSC 2827, at paras. 29-30. The charges laid in July 2021 and October 2022 also include possession of a schedule I substance for the purpose of trafficking.

[12] The Applicant also relies on the fact that a large amount of cash currency was being stored in Mr. Ohenhen’s residence. The cash was in $100 denominations and was bundled. A court may consider the fact of a large amount of currency being stored in a residence in determining whether the currency is proceeds of unlawful activity: Ontario (Attorney General) v. $205,100 in Canadian Currency (In Rem), 2015 ONSC 2097, at paras. 17-18.

[13] The Crown filed the affidavit of D.C. Elaine Saeed. She has been a police officer since 2007 and has been assigned to the Asset Forfeiture Sections since 2017. She deposed the following:

(a) On April 22, 2022, the police executed a search warrant and seized 6 cellular telephones and $32,000 in bundled currency; (b) The currency was bound with elastic bands and comprised on $100 bills; (c) That there are reasonable grounds to believe that funds derived from legitimate means especially a large amount as $32,000 would be moved through the banking system; (d) That large amounts of cash are more commonly associated with individuals involved in unlawful activity. (e) During the search on July 21, 2021, the police located 1.52 grams of cocaine and a single round of ammunition; and (f) During the search on October 19, 2022, the police located a quantity of crack and cocaine in separate baggies on Mr. Ohenhen’s person and also located a large quantity of cocaine, and a parka that had two sewn-in pouches which contained body armour.

[14] Mr. Ohenhen did not file any materials on the motion. However, he made submissions on his own behalf. He argued that he runs a cleaning business in which his customers pay in cash. No evidence was put forward by Mr. Ohenhen to support this submission. There were no affidavits from his customers. He did not provide any financial documents or other business records. Even if his customers paid in cash, there was no explanation for why the proceeds from the business were not deposited with a bank.

[15] Mr. Ohenhen argues that the Crown seeks to seize the currency to prevent him from being able to afford a lawyer to prosecute his wrongful conviction/malicious prosecution action against the Crown. Mr. Ohenhen did not submit any evidence as to his finances. There is no evidence from a lawyer setting out the amount required for a retainer or any evidence as to Mr. Ohenhen’s finances or ability to borrow money to pay a retainer. Bald assertions unsupported by evidence are insufficient to provide a credible answer for the currency: Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem), 2011 ONCA 363, at para. 45.

[16] I am satisfied on the evidence before me that the Crown has established reasonable grounds to believe that the seized currency is the proceeds of unlawful activity. There are prior convictions and pending charges against Mr. Ohenhen that involve the trafficking of schedule I substances. The large amount of cash bundled in $100 denominations is consistent with currency from drug trafficking which is generally a cash business: Attorney General of Ontario v. $543,515 in Canadian Currency (in rem), 2021 ONSC 4323 at paras. 22-23. I do not accept Mr. Ohenhen’s statement, made without supporting evidence, that the money came from a cleaning business.

(ii) Preservation of the Currency is in the Interest of Justice

[17] The preservation order will not be granted if the preservation is clearly not in the interests of justice. The “clearly not in the interests of justice” exception is narrow and is not routinely exercised. The “interests of justice” concerns will be engaged where the person seeking relief establishes that it would be “manifestly harsh” or “draconian” to make the preservation order: Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (in Rem), 2011 ONCA 363, at paras. 84, 85.

[18] The Applicant is seeking an order for the preservation of property pending a forfeiture hearing. The “interest of justice” exception for a preservation order should be applied more stringently than in a forfeiture hearing because the preservation motion is an interim order that does not finally determine the status of the property or the legal rights of interested persons: Ontario (Attorney General) v. $51,000.00 in Canadian Currency (In Rem), 2012 ONSC 4958, at para. 38.

[19] In determining whether it would be “manifestly harsh” or “draconian” to order forfeiture of a property, the court is to consider the following factors:

(a) The conduct of the party whose property is the subject of the forfeiture application, in particular the reasonableness of the breaching party’s conduct, including the knowledge of the unlawful activity; (b) The disparity between the value of the property that is from the proceeds of unlawful activity and the value of the property sought to be forfeited; and, (c) Whether forfeiture is onsite with the purposes of the Civil Remedies Act.

[20] I have considered the three factors. I am satisfied that there is no basis for the application of the “clearly not in the interests of justice” exception. The evidence establishes that there is a connection between the seized currency and the unlawful activity namely trafficking in schedule I substances. I am also satisfied that the preservation of the seized currency will promote the purposes of the Act. The preservation order will result in the preservation of the seized currency for an interim period. Without preservation of the currency, the money would likely be dissipated and would not be available as evidence on the forfeiture application.

Disposition

[21] I am satisfied that the Applicant has established that the $32,000 seized from Mr. Ohenhen on April 22, 2022, is the proceeds of unlawful activity. I am also of the view that there is no basis for the “clearly not in the interests of justice” exception to apply, in the circumstances of this case. I grant the relief sought. The Order shall go in accordance with the draft order filed and signed by me.

Date: March 20, 2023