Ontario (Attorney General) v $205,100 In Canadian Currency (In Rem), 2015 ONSC 2097 – Ontario Court Rubber-Stamps Speculative Forfeiture Claim

The Attorney General of Ontario applied for a preservation order pertaining to $205,100 in cash, seized from the Defendant’s apartment. The money was allegedly “tainted with the odour of controlled substances,” although the Attorney General presented no direct evidence as to the origin of the money.

The Court noted that “the threshold to meet for a preservation Order is reasonable grounds,” and “this is a lower standard of proof than that of balance of probabilities.” On this standard, it was determined that the Attorney General had satisfied the necessary standard for a preservation order.

This decision represents a frightening level of deference by the courts to the speculative judgments of police officers and bureaucrats. The Attorney General articulated some grounds for suspicion, but as Justice Macaulay of the BC Supreme Court noted in the Trimble case, “suspicions are not evidence.”

Justice Whitaker’s decision in Ontario v. $205,100 appears to shift the onus of proof onto Defendants to provide a credible explanation regarding the origin of money. Inevitably, this will lead to what the BC Supreme Court has referred to as “zealous measures outside the proper bounds of [civil forfeiture legislation] with the unfortunate effect of depriving [citizens] of lawful possession and use of … property.”

Regrettably, even as British Columbia’s courts have sought to reign in the civil forfeiture process and impose a degree of fairness, Ontario’s courts remain willing to rubber-stamp even the most speculative attempts at forfeiture.

Decided by the Ontario Superior Court of Justice on March 24, 2015.
Click here for the full text of the decision.

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