that cash belonged to her — Evidence not establishing ownership of
cash — Parties reaching settlement which provided that $4,000 of seized
funds were to be returned to R and balance was to be forfeited to Crown
under Civil Remedies Act — Motion judge not erring in ordering forfeiture of entire amount of seized money — Forfeiture mandatory under
s. 3(1) of Act unless it would clearly not be in interests of justice —
Application judge reasonably finding that there was no reason to exercise court’s discretion to grant relief from forfeiture under s. 3(1) — Section 3(3) of Act giving court broad power to make any order it considers
necessary to protect legitimate owner’s interest in property — That
subsection not applying as legitimate owner of cash was unknown —
Civil Remedies Act, 2001, S.O. 2001, c. 28.
When called to the scene of a domestic dispute, police officers found a suitcase
in R’s driveway which contained $29,900 in cash along with a digital scale, a balaclava and a facemask. R claimed that the cash belonged to her and that it represented her life savings from legitimate sources. The Attorney General brought an
application for forfeiture of the seized money under the Civil Remedies Act, 2001.
Before the application was heard, the Crown and R entered into a settlement
which provided that $4,000 of the seized money was to be returned to R and the
rest was to be forfeited to the Crown. The application judge ordered that the
entire amount was to be forfeited to the Crown. The Attorney General appealed.
Held, the appeal should be dismissed.
In making any order under the Civil Remedies Act, 2001, the court has an obligation to ensure that the requirements and purpose of the statute are met,
because the court’s order affects the world at large, and not just the persons who
have reached a settlement. If the requirements of the Act are met, then a forfeiture order is mandatory subject to only two exceptions: ( i) where refusal of forfeiture is necessary to protect the interests of the legitimate owner (s. 3(3)); or
( ii) where forfeiture would clearly not be in the interests of justice (s. 3(1)). The
application judge found as a fact that the moneys were proceeds of unlawful
activity, so forfeiture was mandatory subject to the two exceptions. There was no
evidence to invoke the exception in s. 3(3), and the application judge reasonably
found no reason to exercise the court’s discretion to grant relief from forfeiture
under s. 3(1).
Other cases referred to
Ontario (Attorney General) v. $104,877 in U.S. Currency (in Rem) (2016),
129 O.R. (3d) 312,  O.J. No. 453, 2016 ONCA 71; Ontario (Attorney General) v. $29,900 in Canadian Currency (in Rem),  O.J. No. 5741, 2016
ONSC 6887 (S.C.J.); Poulin v. Nadon,  O.R. 219,  O.J. No. 433,
 2 D.L.R. 303 (C.A.)
Statutes referred to
Civil Remedies Act, 2001, S.O. 2001, c. 28, ss. 3, (1), (3), (5), 8 [as am.], 15.6(3)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.03(1), 7.08, 49, 49.09
APPEAL from a civil forfeiture order.
Lisa Will and Kateryna Toderishena, for appellant.