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POWERS OF SEARCH AND SEIZURE - Forfeiture of items seized

Thursday, February 28, 2019 @ 8:40 AM  


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Appeal by the respondent from an order for civil forfeiture of property. In 2001, four individuals purchased and renovated a property and rented it to a chapter of the Hells Angels Motorcycle Club. The renovations included installing security cameras and fortifying the first-floor windows and door. Members of the Club's chapter paid dues used to pay bills associated with the property. In 2006, members of the Club, including one of the property's owners, Ward, were arrested for drug offences. The ensuing trial involved findings that the Club was a criminal organization. Ward pled guilty to the drug offences and was convicted of instructing commission of an offence for a criminal organization. In exchange for the guilty plea, the federal Crown lifted a restraint order against the property and seized vehicles and cash. However, the provincial Crown commenced civil forfeiture proceedings following the lifting of the restraint order. The judge ordered forfeiture of the property and paraphernalia therein on the basis that it was both proceeds and an instrument of unlawful activity. The decision relied upon the prior trial evidence supporting the finding that the Club was a criminal organization. The owners of the property appealed.

HELD: Appeal dismissed. The application judge erred in finding that expert evidence regarding whether the Club was a criminal organization was admissible within the participant exception, as the witness was not part of the investigation, and merely provided an opinion based on the Club's national profile. The error was of no import, as the evidence substantially complied with all of the informational requirements of Rule 53.03(2.1) and did not cause prejudice given that it was a mirror of the opinion tendered in the criminal proceeding. The evidence itself, by its nature, did not constitute inadmissible hearsay. The agreed statement of facts entered with the owner's plea constituted voluntary admissions admissible in the civil forfeiture proceeding. The application judge did not err in concluding that the premises constituted proceeds of unlawful activity, and in rejecting the legitimate owner exception. The evidence clearly established that Club dues paid the mortgage on the property during a period in which the owner and other Club members were convicted of offences related to drug trafficking. The plea agreement with the federal Crown did not address forfeiture of the premises.

Ontario (Attorney General) v. 855 Darby Road, Welland (In Rem), [2019] O.J. No. 246, Ontario Court of Appeal, P.S. Rouleau, D. Watt and D. Paciocco JJ.A., January 21, 2019. Digest No. TLD-February252019009