This case involved appeals (by the Attorney General and the Defendants) of the decision in Ontario (Attorney General) v. 1140 Aubin Road, Windsor, 2008 CanLII 67887 (ON SC), in which three home shad been ordered forfeit and a fourth had been preserved from forfeiture on the grounds of insufficient evidence that the owner was aware of the illegal activity occurring there.
The Ontario Court of Appeal upheld the findings of fact by the trial judge and reaffirmed the result in respect to the three forfeitures, as well as in respect to the one exemption from forfeiture.
The Darlington case demonstrates the reluctance of the appeals court to interfere with a lower court finding of fact, even in circumstances where a contrary interpretation of the facts is possible. For example, in upholding the relief from forfeiture of Tuoi Le Thi Tran’s home, Mr. Justice Doherty of the Ontario Court of Appeal stated that:
“The application judge found that Tran did not participate in, and had no knowledge of Do’s unlawful activity at the Atwater property before the police raid in August 2004. She also found that Tran was unaware that Do was paying the rent with drug money. In making these findings, the trial judge relied on Tran’s evidence. There was considerable evidence to the contrary, indicating that at a minimum Tran was aware of the drug activity.
It was for the application judge to assess the evidence. I cannot describe her findings as unreasonable on the totality of the evidence. Those findings stand and are entitled to significant weight in assessing Tran’s claim for relief from forfeiture.”
Decided by the Ontario Court of Appeal on May 5, 2011.
Click here for the full text of the decision.