ATTY.-GEN. (ONT.) v. $51,000 CDN. (IN REM), 2013 ONSC 1321 – Forfeiture of Life Insurance Proceeds Not in the Interests of Justice Where Intent Not Criminal

Ved Dhingra had been prosecuted for the second degree murder of his wife, Kamlesh Dhingra. Mr. Dhingra was found not criminally responsible for the murder on the grounds of severe schizophrenia.

In an earlier decision, the Ontario Superior Court of Justice had found that there was a serious issue to be tried and that a finding that the accused is “not criminally responsible” is not, in itself, a bar to civil forfeiture.
At trial, however, Justice Stewart considered the matter in light of the “interests of justice,” as required by recent civil forfeiture decisions in other provinces, such as Crowley (in British Columbia) and Allen (in Nova Scotia).

Justice Stewart ultimately found that Mr. Dhingra’s lack of moral culpability was a factor that must be taken into account when considering the interests of justice:

“[48] Dhingra was found not criminally responsible for Kamlesh’s death on the basis of extensive psychiatric evidence. There is no suggestion whatsoever that he was capable at the time of forming an intent to kill his wife, and certainly no evidence that the possible availability of the life insurance proceeds played any role in these events or his conduct. I fail to see how the granting of the order would serve to deter others in any general sense from doing what Dhingra did. The very essence of having been found not criminally responsible for the offence denotes an absence of awareness or understanding of its meaning or consequences. Any person who might replicate Dhingra’s actions would, by definition and by reason of mental disorder, be impervious to any caution a forfeiture order in this instance could provide.”

Furthermore, Justice Stewart considered Mr. Dingra’s personal circumstances:

“[52] Dhingra is now an elderly psychiatric patient living alone in inexpensive rental accommodation in Toronto on very modest income from pension and old age security payments. He has no exigible property of any appreciable value. Legal representation was provided to him for the criminal and ensuing proceedings by Legal Aid or by amicus curiae appointed for that purpose. He is not named as a beneficiary under Kamlesh’s will which leaves whatever is in her estate to their two children. Although need is not a consideration for the purposes of applying the exemption under the Act, I am of the view that Dhingra’s personal circumstances may be taken into account when determining the factors of proportionality and fairness which comprise part of the exercise of deciding what the interests of justice require in any individual instance.”

As a result of these considerations, the court determined that forfeiture in the circumstances would be “manifestly harsh and therefore clearly not in the interests of justice,” and dismissed the Attorney General’s application for forfeiture.

Decided by the Ontario Superior Court of Justice on March 26, 2013, 2013.
Click here for the full text of the decision.

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