Ontario (Attorney General) v. 714 Railton Avenue, 2014 ONCA 397 – Criminal Sentencing Relevant to “Interests of Justice” Defence

The Railton Avenue appeal involved judicial consideration of the scope of the “interests of justice defence,” and specifically the implications of the criminal sentencing process in determining whether a given forfeiture application is “contrary to the interests of justice.”

The Defendant owner of the Railton Avenue property had pleaded guilty to a marijuana production offence and paid a fine of $10,000, on the understanding that the Crown would not seek forfeiture of his home. Almost three years after the guilty plea, the Attorney General of Ontario applied for forfeiture of the home under the province’s Civil Remedies Act.

The Ontario Court of Appeal upheld the trial judge’s decision that forfeiture in the circumstances was contrary to the interests of justice:

“In this case, the federal Crown obtained restraint and management orders, prosecuted and obtained a conviction, and formally agreed to an order lifting the restraint order, and did so in language that a reasonable person could assume meant that although he would have to pay a $10,000 fine and forfeit chattel property worth about $8,000, at least his house was safe.”

Railton Avenue highlights the disturbing double jeopardy issues which arise when the civil forfeiture process is used to take a second shot at an accused after criminal sentencing. Similar concerns arose in the British Columbia case of Director of Civil Forfeiture v. Wolff. Both Railton and Wolff involved the invocation of the “interests of justice” defence to avert what could otherwise have amounted to an unconstitutional form of double punishment.

Decided by the Ontario Court of Appeal on May 16, 2014.
Click here for the full text of the decision.

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