The Defendant, Alexander Bourgeois, was subject to criminal charges for over ten years after he was intercepted at Pearson International Airport carrying a small quantity of cocaine and $104,877 in US cash. He claimed that the cash was lawfully acquired and the criminal charges were eventually dropped.
The Civil Remedies Act, of course, allows the provincial government to proceed against an individual and justify their claim on the “balance of probabilities” rather than proving that the Defendant is guilty. In 2012, after the criminal charges were dropped, the Attorney General of Ontario decided to take a second run at Mr. Bourgeois under the Civil Remedies Act.
Unfortunately, given that Mr. Bourgeois’ life savings had been confiscated in 2001 and he had had difficulty maintaining employment ever since, he was unable to afford counsel to oppose the civil forfeiture action. Mr. Bourgeois attempted to prove this, but the Attorney General objected on the basis of not having provided full financial disclosure.
The court found that Mr. Bourgeois had provided financial disclosure in good faith:
“[35] A person bringing a motion under sections 5 or 10 of the Civil Remedies Act, 2001 is confronted with the difficulty of trying to prove a negative, i.e. that he or she does not have property or financial resources. It is never an easy thing to prove a negative, and in the case at bar, I do not think it is procedurally fair for the Attorney General, practically speaking, to set the standard of disclosure by serving a demand for disclosure of documents that goes beyond the needs of section 5 and far into the merits of the forfeiture application.
[36] I wish to be clear. It was fair game for the Attorney General to serve the Notice of Examination and to extensively cross-examine Mr. Bourgeois on his affidavit on the section 5 motion and to gain ground on the forfeiture application. However, the section 5 issues are different from the issues for the forfeiture application, and I do not think that it is procedurally fair on a section 5 application to set a standard of disclosure that goes beyond the issues of the section 5 motion. Further, I do not think, it is necessary for Mr. Bourgeois to show that he applied for and was not able to obtain legal aid or a lawyer who would take the case on based on a contingency fee arrangement or pro bono services.”
Mr. Bourgeois was therefore allowed to take $6,000 out of the $104,000 in seized funds to pay for his legal defence, pursuant to Section 5 of the Civil Remedies Act.
Decided by the Ontario Superior Court of Justice on May 21, 2013.
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