Attorney General of Ontario v. $32,000 in Canadian Currency, 2025 ONSC 3414

Court File No.: CV-23-00 694256-0000
Date: 2025-06-16
Superior Court of Justice – Ontario
Before: Lorne Brownstone
Applicant Counsel: Brandon Fragomeni
Respondent (Interested Party): Nosakhare Ohenhen (self-represented)
Heard: 2025-05-20

Endorsement

Introduction

[1] The Attorney General applies under the Civil Remedies Act, 2001, SO 2001, c 28 for forfeiture of $32,000 in Canadian currency seized on April 22, 2022, by members of the Toronto Police Service from Mr. Ohenhen. It argues that the seized currency is proceeds of and/or an instrument of unlawful activity within the meaning of the Civil Remedies Act and should therefore be forfeited.

[2] Mr. Ohenhen opposes the application and seeks return of the funds.

Background Facts

[3] Mr. Ohenhen was a passenger in a car involved in a hit and run accident with a pedestrian on April 14, 2022. The pedestrian died. After the accident, the car entered the underground parking garage at 295 Dufferin Street, Toronto, where Mr. Ohenhen lived. Mr. Ohenhen came out of the car and handed something that appeared to be a set of keys to the driver. The two then sat in another car, which was registered in Mr. Ohenhen's name.

[4] The police state that Mr. Ohenhen provided the other person, the driver, with access to his car to enable the driver to escape after the hit-and-run. The next day, the driver was arrested for failure to stop at the scene of an accident that caused death, dangerous driving causing death, obstruction and public mischief, all offences under the Criminal Code.

[5] On April 22, 2022, Mr. Ohenhen was arrested as a result of the hit and run. TPS executed a search warrant at his residence where they found six cellular phones and $32,000 in cash, in $100 bills. There were three bundles that total $30,000 bound with elastics in the safe, and $2,000 in two bundles on a table.

[6] Mr. Ohenhen takes issue with how the search was conducted. He denies being provided his right to counsel and caution. The police state that he was read his right to counsel and caution, was arrested, and transported to traffic services. Mr. Ohenhen did not bring a motion in these proceedings to challenge the warrant and exclude the residence, but he did raise arguments about the search in his submissions.

[7] Mr. Ohenhen was charged with failure to stop at the scene after an accident resulting in death, obstructing a peace officer, public mischief, and being an accessory after the fact to commit an indictable offence, all offences under the Criminal Code. Those charges are pending.

[8] The Attorney General also refers to other charges from July 2021, in which Mr. Ohenhen was charged with possessing a weapon for a dangerous purpose, committing mischief or damage of property, possessing cocaine, possessing proceeds of property or things obtained by crime, and possessing a firearm while prohibited from doing so, offences against the Criminal Code or the Controlled Drugs and Substances Act. Those charges were withdrawn in November 2023.

[9] About six months after the April incident, Mr. Ohenhen was charged in a different incident with three counts of possession of a substance for the purpose of trafficking under the Controlled Drugs and Substances Act and one count of possession of proceeds of crime under the Criminal Code. Those charges are pending.

[10] The Attorney General also provides evidence that Mr. Ohenhen has an extensive criminal history involving convictions for possession for the purpose of trafficking, possession of schedule 1 substances, assault, assault with intent to resist arrest, failure to comply with a recognizance, possession of prohibited or restricted firearms, assault causing bodily harm, robbery, and conspiracy to commit an indictable offence.

[11] Analysis of substances seized related to the July 2021 and October 2022 arrests reveal them to contain cocaine and phenacetin.

Procedural History

[12] On October 25, 2022, Justice of the Peace Callaher signed a return order. On March 20, 2023, Chalmers J. issued an order preserving the seized currency until the completion of this application.

[13] In November 2024, Chalmers J. scheduled this application and its included steps, including the exchange of materials and cross-examinations. Issues arose in respect of the cross-examinations and they did not occur in accordance with the timetable, so Chalmers J. held a case conference on February 3, 2025. He amended the timetable. The respondent subsequently served, but did not file, a motion to adjourn the application and did not attend for his cross-examination. A certificate of non-attendance was issued. The Attorney General sought a further case conference. The respondent did not attend, advising the applicant but not the court that he was occupied in a criminal proceeding. Chalmers J. endorsed: “It is important that the forfeiture application proceed as scheduled on May 20, 2025. If the Respondent seeks to amend the timetable he will be required to request a case conference with me by April 11, 2025.” No case conference was requested.

[14] The applicant did not object to the admissibility of Mr. Ohenhen’s affidavit with respect to the source of his funds, even in the circumstances where he was not available for cross-examination. Rather, the applicant asserted that the affidavit did not support Mr. Ohenhen’s position.

The Statutory Scheme

[15] Under the Civil Remedies Act, 2001 the court is required to make an order forfeiting property that is the subject of a forfeiture proceeding if it is satisfied that the property is the proceeds of unlawful activity (s. 3) and/or an instrument of unlawful activity (s. 8), unless to so order would clearly not be in the interests of justice. The Attorney General must establish that the property is the proceeds of and/or an instrument of unlawful activity on a balance of probabilities. If it does so, the court considers whether it is clearly not in the interest of justice to order forfeiture.

[16] A person with a known interest in the property is entitled to notice and deemed to be party (s. 15.5).

[17] One of the purposes of the Civil Remedies Act is to prevent those who were engaged in unlawful activities from keeping property that was acquired as a result of those activities. Another purpose is to prevent property from being used to engage in certain unlawful activities.

[18] Proceedings are in rem, not in personam (s. 15.6). The Attorney General is not required to prove any particular offence against any particular offender, or even to identify the owner of the property with a particular offence: Chatterjee v. Ontario (Attorney General), 2009 SCC 19, [2009] 1 SCR 624 at paras. 21 and 47.

[19] The Act contains the following definitions:

• “Proceeds of unlawful activity” means property acquired, directly or indirectly, in whole or in part, as a result of unlawful activity… (s. 2)
• “Instrument of unlawful activity” means 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, in injury to the public or in serious bodily harm to any person, and includes any property that is realized from the sale or other disposition of such property. (s. 7)
• “Unlawful activity” means an act or omission that, (a) is an offence under an Act of Canada, Ontario or another province or territory of Canada, or (b) is an offence under an Act of a jurisdiction outside Canada, if a similar act or omission would be an offence under an Act of Canada or Ontario if it were committed in Ontario, whether the act or omission occurred before or after this Part came into force. (ss. 2 and 7)

Analysis

[20] The Attorney General argues that, on a balance of probabilities, the currency at issue here fits both definitions—it was likely acquired as a result of, and used in the commission of, the unlawful activity of trafficking and possession for the purpose of trafficking, and possession of the proceeds of crime. Funds can fall within both definitions when they are obtained from the sale of drugs and are, or could be, used to purchase more drugs: Ontario (Attorney General) v. $75,613 in Canadian Currency (In Rem), 2018 ONSC 7062 at para. 38.

[21] As Mr. Ohenhen points out, it is important to consider that “[t]here is a difference between suspecting that property may be the proceeds of unlawful activity and proving on a balance of probabilities that it is”: Attorney General of Ontario v. $8,740 in Canadian Currency, 2016 ONSC 3773 at para. 2. Further, individuals may decide to keep large amounts of cash in their residence as opposed to in a bank: $8,740 at paras. 39, 40 and 44.

[22] The Attorney General seeks to rely on the evidence of DC Tran, an experienced police officer, based on his experience and training, that the bundling of the currency, the maintenance of large sums in cash and not in a bank, and that unlawful activities such as drug trafficking are almost invariably cash-based.

[23] Evidence based on police officers’ training and experience has been admitted in criminal cases: R. v. Mackenzie, 2013 SCC 50 at paras. 56 and 99, and civil forfeiture applications. The courts regularly accept in civil remedies cases that drug trafficking is a cash business, where large amounts of funds are kept outside of a bank and bundled.

[24] Further, Mr. Ohenhen’s criminal history can be considered in a forfeiture application: Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363 at para. 46; Attorney General v. $5,545 in Canadian Currency (In Rem), 2011 ONSC 2827 at paras. 29-30; Ontario (Attorney General) v. $9,475 in Canadian Currency (In Rem), 2014 ONSC 3711 at para. 37; Attorney General of Ontario v. $9,616.98 in Canadian Currency, 2011 ONSC 3820 at paras. 4 and 7.

[25] In addition, in the civil forfeiture regime, criminal charges or convictions are not a pre-requisite. Rather than demonstrating the subject currency is related to a particular offence, the Attorney General need only demonstrate on a balance of probabilities that the currency is the proceeds and/or an instrument of crime.

[26] In this case, the significant amount of bundled cash found in Mr. Ohenhen’s residence in the circumstances described above raises a suspicious circumstance that supports an inference that the funds were not from a legitimate source. It requires a credible and reasonable answer: Attorney General of Ontario v. $543,515 in Canadian Currency (in rem). The absence of evidence documenting any legitimate source for the currency is a relevant factor for the court to consider: Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363; Attorney General of Ontario v. $9,616.98 in Canadian Currency, 2011 ONSC 3820 at para. 6.

[27] As Brown J. stated in Ontario (Attorney General) v. $44,215 in Canadian Currency (In Rem), 2018 ONSC 4001 at paras. 14 and 15:

[14] It is long recognized that drug trafficking is a cash business and that suspicious circumstances, such as the possession of large amounts of bundled currency require a credible and reasonable answer: Ontario (Attorney General) v. $1650 in Canadian Currency (In Rem), [2008] OJ no 2076; Ontario (Attorney General) v. $10,000 in Canadian Currency (In Rem), 2014 ONSC 944; Ontario (Attorney General) v. $9616.98 in Canadian Currency (In Rem), 2011 ONSC 3820; Ontario (Attorney General) v. $42,885 in Canadian Currency (In Rem), 2012 ONSC 4843.

[15] The storage of large sums of money in a residence is just such a suspicious circumstance: Ontario (Attorney General) v. $61,686 in Canadian Currency (In Rem), [2009] OJ No 3874.

[28] In the case before Brown J., the person opposing forfeiture had given “vague and changing” explanations for the legitimate source of the cash.

[29] In this case, Mr. Ohenhen states that the money comes from casino winnings and from his business.

[30] Mr. Ohenhen acknowledges that his casino winnings, which were from January 2021, were paid to him electronically. He states that the $100 bills found in his apartment were clearly from a bank machine. This assertion was not in evidence before the court. Moreover, the evidence that was before the court, in the form of the casino winning amounts, business records, and bank statements, do not show any cash withdrawals of amounts in $100 multiples. Mr. Ohenhen suggested the cash withdrawals were from his personal, not business, bank account, records of which were unavailable to him because the account was closed. Whatever the reason, there were no such records before the court.

[31] I agree with the applicant that the records provided do not in any way support Mr. Ohenhen’s statements that the cash was from his business or casino winnings. The records show that his business income, like his casino winnings, was received electronically, not in cash.

[32] I find there is no credible and reasonable answer for the suspicious circumstances in which the money was found.

The Search and Charter Issues

[33] Mr. Ohenhen also complains about the search. He argues that the police targeted him, that what was in fact a traffic violation became an investigation into him. He did not bring a motion to exclude the evidence in this proceeding. He did not advise Chalmers J. at the case conferences that he would seek to exclude the evidence.

[34] As a preliminary point, I do not accept Mr. Ohenhen’s characterization of the underlying incident as a traffic violation. Mr. Ohenhen was involved in a hit-and-run accident in which a pedestrian died. There is evidence that he assisted the driver in that accident to switch cars after the accident, to provide him with his car, presumably in an effort to evade being caught. As noted above, both the driver and Mr. Ohenhen have been charged in connection with that incident.

[35] The search warrant obtained by the police permitted, on its face, the seizure of a blue sweater and cell phones. The police also searched Mr. Ohenhen’s safe, from which they seized $30,000. Mr. Ohenhen argues the seized funds were not permitted to be seized under the warrant and are not connected to the investigation. He has brought a motion to exclude all evidence in the criminal proceedings as a result of various alleged Charter breaches.

[36] The Attorney General relies in part on s. 489 of the Criminal Code which provides:

489 (1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds
(a) has been obtained by the commission of an offence against this or any other Act of Parliament;
(b) has been used in the commission of an offence against this or any other Act of Parliament; or
(c) will afford evidence in respect of an offence against this or any other Act of Parliament.

[37] The Attorney General points out that there is no motion requesting to exclude the evidence or declare the search unconstitutional in this proceeding. Further, the test set out in s. 489 is satisfied by the evidence in this case.

[38] Mr. Ohenhen has argued, in the criminal proceedings, that the search violated his Charter rights. I asked the parties whether this application should be adjourned pending a decision in that matter. Mr. Ohenhen submitted that it should, since if the court in the criminal proceeding determines the evidence is inadmissible, the evidence would be “potentially inadmissible in this proceeding”.

[39] The Attorney General disagrees. It argues that any decision in the criminal context is interlocutory only and would not be res judicata or issue estoppel in this proceeding, and that the weighing of the admissibility of evidence even if there is a Charter breach is different in the civil and criminal contexts. The Attorney General also reiterates that Mr. Ohenhen has not brought a motion seeking to exclude the evidence in this proceeding.

[40] I understand a decision has been made but reasons not yet delivered about the search in the criminal case. However, I accept the Attorney-General’s position that whatever happens in the criminal proceedings in this case does not affect the result in this proceeding.

[41] There are two problems with Mr. Ohenhen’s argument about his Charter rights having been violated. First, Mr. Ohenhen did not bring a motion to exclude the evidence in these proceedings. Several case conferences were held before Chalmers J. and Mr. Ohenhen did not indicate he would be bringing a motion to exclude the evidence.

[42] Second, and perhaps more importantly, I do not find it appropriate to rely on Mr. Ohenhen’s affidavit evidence about the search for the following two reasons. First, Mr. Ohenhen failed or refused to be cross-examined on his affidavit. Second, the bodycam evidence that was available to the court did not support the version of events set forward in his affidavit.

[43] I therefore do not accept Mr. Ohenhen’s affidavit evidence about the search. I find no basis to make any findings about the search, and therefore no basis to exclude the evidence of the funds found at Mr. Ohenhen’s residence.

Conclusion on Forfeiture

[44] I am satisfied that the Attorney General has established on a balance of probabilities that the funds were proceeds of and an instrument of unlawful activity. There has been no “credible and reasonable” answer to the suspicious circumstances outlined above, that is, that the significant amount of funds was in 100-dollar bills, bundled together, in cash in Mr. Ohenhen’s home, not in a bank. Mr. Ohenhen’s criminal record also has some, but not dispositive, relevance. The documents Mr. Ohenhen produced do not support any reason or explanation for the cash. The absence of an innocent explanation for the significant amount of funds in the circumstances in which they were found here leads me to conclude, on a balance of probabilities, that the funds were the proceeds of and an instrument of unlawful activity.

[45] The second part of the civil forfeiture regime considers whether the forfeiture is clearly not in the interests of justice. The party who seeks relief from forfeiture bears the onus of demonstrating that in all the circumstances forfeiture would be a manifestly harsh and unjust result: Ontario (Attorney General) v. 1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (in rem), 2011 ONCA 363 at paras. 84-85.

[46] In assessing this factor, the court may consider a number of things, including the conduct of the party whose property is the subject of the forfeiture application, whether there is a disparity between the party’s interest in the property and the overall value of the property that is tainted by unlawful activity, and the interplay between the purposes of the Civil Remedies Act and the exercise of the discretion to relieve from forfeiture.

[47] The Attorney General submits, and I agree, that there are no known “interests of justice” considerations that would weigh against forfeiture in this case. The evidence supports the finding on a balance of probabilities that the seized funds were all proceeds of or an instrument of illegal activity. The purposes of the Civil Remedies Act, including making crime unprofitable and preventing property from being used to engage in unlawful activity, are promoted by forfeiture. Mr. Ohenhen argued that the forfeiture would impose an undue financial hardship, particularly as the funds represent legitimate business earnings and personal savings. I have rejected that evidence and found that there is no evidence that the funds have a legitimate source.

[48] I therefore grant the Attorney General’s application. I have signed the order provided.

Supplementary Issue: Fictitious Citations

[49] Mr. Ohenhen submitted a statement of legal argument to the court in support of his arguments. In those documents, he referred to at least two non-existent or fake precedent court cases, one ostensibly from the Court of Appeal for Ontario and another ostensibly from the British Columbia Court of Appeal. In reviewing his materials after argument, I tried to access these cases and was unable to find them. I asked the parties to provide them to me.

[50] Mr. Ohenhen responded with a “clarification”, providing different citations to different cases. I asked for an explanation as to where the original citations came from, and specifically, whether they were generated by artificial intelligence. I have received no response to that query.

[51] While Mr. Ohenhen is not a lawyer with articulated professional responsibilities to the court, every person who submits authorities to the court has an obligation to ensure that those authorities exist. Simple searches would have revealed to Mr. Ohenhen that these were fictitious citations. Putting fictitious citations before the court misleads the court. It is unacceptable. Whether the cases are put forward by a lawyer or self-represented party, the adverse effect on the administration of justice is the same.

[52] Mr. Ohenhen’s failure to provide a direct and forthright answer to the court’s questions is equally concerning.

[53] Court processes are not voluntary suggestions, to be complied with if convenient or helpful to one’s case. The proper administration of justice requires parties to respect the rules and proceed in a forthright manner. That has not happened here.

[54] I have not attached any consequences to this conduct in this case. However, should such conduct be repeated in any court proceedings, Mr. Ohenhen should expect consequences. Other self-represented litigants should be aware that serious consequences from such conduct may well flow.

Lorne Brownstone
Date: June 16, 2025