Court of Appeal Decision of the Week

Attorney General Forfeits Cash en route out of Canada: Court of Appeal Affirms Decision

Case: Ontario (Attorney General) v. $104,877 in U.S. Currency (In rem), 2016 ONCA 71 (CanLII)

Keywords: Cash Courier; Civil Forfeiture; Legitimate Owner; Responsible Owner; Civil Remedies Act, 2001, SO 2001, C 28;

Synopsis:

Alexander Bourgeois is on his way to Panama City; using x-ray machine technology, airport security staff detects something suspicious in his backpack. A search reveals $100,000 USD in tightly-wound bundles stuffed into 22 socks. Police subsequently discover 2 more bundles – an additional $4,877 USD – in Mr. Bourgeois’ pockets, along with a small amount of cocaine.

Mr. Bourgeois states the money represents his combined earnings from tips, gambling winnings, and an insurance settlement arising from his mother’s death in a motor vehicle accident. The Application Judge grants the Attorney General of Ontario forfeiture of the $104,877 USD recovered pursuant to ss. 3 and 8 of the Civil Remedies Act.

On appeal, Mr. Bourgeois submits the Application Judge erred in determining the recovered money was the proceeds of unlawful activity or an instrument of unlawful activity; that he was not a legitimate owner.

The Court of Appeal concludes the Application Judge made no error; Mr. Bourgeois’ appeal is dismissed with further costs payable to the respondent in the amount of $6,000, including disbursements and HST.

Importance:

Citing Attorney General of Ontario v. $25,709.63, CV-06-0172 at para. 33, Mr. Bourgeois submitted there must be a factual context to determine the $104,877 USD were the proceeds of illegal activity. Moreover, it was argued the Application Judge should have granted relief based on the “interests of justice” exception.

The Court of Appeal rejected these arguments. The Civil Remedies Act mandates the following two-step process: “first, the Attorney General of Ontario must satisfy the court that the property is either the proceeds of unlawful activity or the instrument of unlawful activity and then, second, the respondent may seek protection from forfeiture under s. 3(3) or s. 8(3) as either a ‘legitimate owner’ or a ‘responsible owner’” (see para. 5).

For the Court of Appeal, the Application Judge’s finding – on a balance of probabilities – that Mr. Bourgeois was acting as a cash courier was based on factors beyond the mere discovery of the money. Rather, she relied on a “veritable laundry-list of evidence”. As such, the Application Judge’s findings at the first step of the test were entitled to deference from the Court of Appeal (see para. 6).

At the second step, the Court confirmed the Application Judge’s approach: evidence showing it was possible to earn the money without unlawful activity is simply not enough to discharge the onus to show Mr. Bourgeois was a legitimate or responsible owner (see para. 7).

Finally, with respect to the “interests of justice” exception, the Court of Appeal again affirmed the decision of the Application Judge, citing factors and guidance from Ontario v. McDougall, 2011 ONCA 363 (CanLII). Relief was not provided under the exception as Mr. Bourgeois was “not an innocent owner”, “his actions were not reasonable”, “it was not possible to distinguish the proceeds of crime from any other property”, and “the objectives of the legislation favoured forfeiture” (see para. 8).

Counsel for the Appellant: Glenroy Bastien (Bastien’s Professional Corporation, Toronto)

Counsel for the Respondent: Miriam Young and Anastasia Mandziuk (Min. of Attorney General (ON), Toronto)

Posted: Wednesday, May 18, 2016