Despite errors, still manifestly harsh and inequitable to order forfeiture

CIVIL FORFEITURE

Despite errors, still manifestly harsh and inequitable to order forfeiture

Civil Remedies Act, 2001 (Ont.), establishes civil forfeiture scheme providing for forfeiture of property used to engage in unlawful activity (s. 8(1)). Forfeiture subject to “Responsible Owner Exception”, where party seeking to avoid forfeiture establishes he is “responsible owner”, and “Interest of Justice Exception”, which grants courts discretion to relieve against forfeiture if order clearly not in interest of justice. Attorney General of Ontario applied for s. 8(1) forfeiture of single-family, private residence used to engage in unlawful activity. Owner rented residence to son who had long-standing and serious addiction to drugs and lengthy criminal record. While son lived in residence, he was convicted of various drug and trafficking offences. Application judge dismissed application, finding that Responsible Owner Exception did not apply, but that Interest of Justice Exception did apply because Attorney General inexplicably delayed, thereby prejudicing owner and rendering forfeiture order unfair. Attorney General’s appeal dismissed. Evidentiary record did not support finding of delay attributable to Attorney General. Forfeiture proceeding commenced within five months of initial police referral and three months of submission to Attorney General. Application judge erred by failing to assess undue delay claim in context of full record and by failing to give effect to s. 8(5) Act which provides there is no limitation period for s. 8(1) forfeiture proceeding. Application judge improperly substituted own discretion. Despite errors, still manifestly harsh and inequitable and clearly not in interests of justice to order forfeiture. Connection between property and son’s illegal activities neither consistent nor overwhelming; forfeiture order would not promote deterrence and crime prevention goals. Application judge failed to consider evidence as whole regarding reasonableness of owner’s conduct in relation to property and son’s activities when addressing Interest of Justice Exception. Owner entirely innocent of any involvement in and derived no benefit from unlawful activities and attempted to assist son in overcoming drug addiction. Owner made diligent efforts to monitor activities at property. Court justified in exercising discretion to refuse forfeiture.
Ontario (Attorney General) v. 20 Strike Avenue (May. 16, 2014, Ont. C.A., J.C. MacPherson J.A., E.A. Cronk J.A., and E.E. Gillese J.A., File No. CA C57014) Decision at 228 A.C.W.S. (3d) 420 was affirmed.  240 A.C.W.S. (3d) 378.