Ontario (Attorney General) v. 20 Strike Avenue et al., 2014 ONCA 395

• Judge: MacPherson, Cronk and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 25, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 395;(2014), 322 O.A.C. 31 (CA)

Ont. (A.G.) v. 20 Strike Avenue (2014), 322 O.A.C. 31 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JN.001

Attorney General of Ontario (applicant/appellant) v. 20 Strike Avenue, Bowmanville, Ontario (PIN #26932-0115 (L.T.)) and a 2005 Dodge Magnum (VIN #2D4GV58255H680471) (in rem) (respondent/respondent in appeal)

(C57014; 2014 ONCA 395)

Indexed As: Ontario (Attorney General) v. 20 Strike Avenue et al.

Ontario Court of Appeal

MacPherson, Cronk and Gillese, JJ.A.

May 16, 2014.

Summary:

A father rented a residential property to his son, who lived at the property at various intervals between 2004 and January 2011. A marijuana grow operation was found in the house in 2006. In 2008, 2010 and 2011, the son pled guilty to a number of drug-related offences. In February 2012, the Crown applied for forfeiture of the property as an instrument of unlawful activity under s. 8(1) of the Civil Remedies Act or as proceeds of unlawful activity under s. 3(1).

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 2130, dismissed the application. The Crown appealed.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: This decision was released concurrently with decisions in two other related cases. See 322 O.A.C. 50; 2014 ONCA 396 and  322 O.A.C. 54; 2014 ONCA 397.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - A father rented a residential property to his son, who lived at the property at various intervals between 2004 and January 2011 - A marijuana grow operation was found in the house in 2006 - In 2008, 2010 and 2011, the son pled guilty to a number of drug-related offences - In February 2012, the Crown applied for forfeiture of the property as an instrument of unlawful activity under s. 8(1) of the Civil Remedies Act or as proceeds of unlawful activity under s. 3(1) - The application judge found that the property was an instrument of unlawful activity under s. 7 of the Act but that the "interests of justice" exception under s. 8(1) applied due to the Crown's delay of six years in seeking forfeiture - The application was dismissed - The Ontario Court of Appeal, in dismissing the Crown's appeal, agreed with the Crown that the application judge's findings regarding delay were unsustainable - The determination of whether a civil forfeiture proceeding should be commenced was a multi-step process - The police first referred the case for an evaluation of a possible forfeiture proceeding in September 2011 - The forfeiture proceeding was commenced within five months of that - There was no evidence that the Crown had delayed - Other material defects in the application judge's decision included the finding that there was a backlog in forfeiture applications and that the father had suffered prejudice due to an appreciation of his equity in the property while the Crown delayed - See paragraphs 51 to 65.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - A father rented a residential property to his son, who lived at the property at various intervals between 2004 and January 2011 - A marijuana grow operation was found in the house in 2006 - In 2008, 2010 and 2011, the son pled guilty to a number of drug-related offences - In February 2012, the Crown applied for forfeiture of the property as an instrument of unlawful activity under s. 8(1) of the Civil Remedies Act or as proceeds of unlawful activity under s. 3(1) - The application judge found that the property was an instrument of unlawful activity under s. 7 of the Act but that the "interests of justice" exception under s. 8(1) applied due to the Crown's delay of six years in seeking forfeiture - The application was dismissed - The Ontario Court of Appeal, in dismissing the Crown's appeal, agreed with the Crown that the application judge had erred in his approach to s. 8(5) of the Act, under which there was no limitation period for a s. 8(1) application - Section 8(5) confirmed the legislature's clear intention that delay alone would not defeat a s. 8(1) application - By relying principally on his perception of the Crown's delay, notwithstanding s. 8(5), the application judge had improperly substituted his own discretion for that of the police and the Attorney General as to whether and when a s. 8(1) forfeiture proceeding was to be commenced - See paragraphs 66 to 69.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - A father rented a residential property to his son, who lived at the property at various intervals between 2004 and January 2011 - A marijuana grow operation was found in the house in 2006 - In 2008, 2010 and 2011, the son pled guilty to a number of drug-related offences - In February 2012, the Crown applied for forfeiture of the property as an instrument of unlawful activity under s. 8(1) of the Civil Remedies Act or as proceeds of unlawful activity under s. 3(1) - The application judge found that the property was an instrument of unlawful activity under s. 7 of the Act but that the "interests of justice" exception under s. 8(1) applied - The application was dismissed - The Ontario Court of Appeal dismissed the Crown's appeal - The connection between the property and the son's illegal activities was neither consistent nor overwhelming - There was no suggestion that the father intended to permit or was indifferent to the son's activities at the property - Nor was there evidence that the father was complicit in or had profited from the son's activities - While the connection between the property and the unlawful activity was sufficient to ground the finding that the property was an instrument of unlawful activity, that connection was limited and intermittent - See paragraphs 70 to 82.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - A father rented a residential property to his son, who lived at the property at various intervals between 2004 and January 2011 - A marijuana grow operation was found in the house in 2006 - In 2008, 2010 and 2011, the son pled guilty to a number of drug-related offences - In February 2012, the Crown applied for forfeiture of the property as an instrument of unlawful activity under s. 8(1) of the Civil Remedies Act or as proceeds of unlawful activity under s. 3(1) - The application judge found that the property was an instrument of unlawful activity under s. 7 of the Act but that the "interests of justice" exception under s. 8(1) applied - The application was dismissed - The Ontario Court of Appeal dismissed the Crown's appeal - Both the purposes of the Act and the definition of "instrument of unlawful activity" had a prospective, crime prevention and deterrence focus - Here, the property had been sold and the father was not himself implicated in any unlawful activity relating to the property's use - Forfeiture would not promote the deterrence and crime prevention goals of the Act - See paragraphs 83 to 87.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - A father rented a residential property to his son, who lived at the property at various intervals between 2004 and January 2011 - A marijuana grow operation was found in the house in 2006 - In 2008, 2010 and 2011, the son pled guilty to a number of drug-related offences - In February 2012, the Crown applied for forfeiture of the property as an instrument of unlawful activity under s. 8(1) of the Civil Remedies Act or as proceeds of unlawful activity under s. 3(1) - The application judge found that the property was an instrument of unlawful activity under s. 7 of the Act - While the father's conduct in relation to the property was insufficient to bring him within the "responsible owner exception" in s. 8(3) of the Act, the "interests of justice exception" under s. 8(1) applied due to the Crown's delay in seeking forfeiture - The application was dismissed - The Ontario Court of Appeal, in dismissing the Crown's appeal, discussed the father's conduct in relation to the "interests of justice" exception - While involvement in criminal activity was not a prerequisite to a forfeiture order under s. 8(1), forfeiture was not intended to penalize the undeserving or the innocent - Here, there was no evidence that the father sought to facilitate, encourage or sanction the son's unlawful activities - Further, the father had attempted for almost 25 years to assist the son in overcoming his addictions - He was not a compliant or uninvolved father and property owner - See paragraphs 88 to 101.

Cases Noticed:

Ontario (Attorney General) v. 8477 Darlington Crescent - see Ontario (Attorney General) v. 1140 Aubin Road, Windsor et al.

Ontario (Attorney General) v. 1140 Aubin Road, Windsor et al. (2011), 279 O.A.C. 268; 2011 ONCA 363, refd to. [para. 44].

Statutes Noticed:

Civil Remedies Act, S.O. 2001, c. 28, sect. 8(1), [para. 10]; sect. 8(3) [para. 12].

Counsel:

William J. Manuel and Dan Phelan, for the appellant;

Sharon E. Lavine and Peter R. Hamm, for the respondent.

This appeal was heard on February 25, 2014, by MacPherson, Cronk and Gillese, JJ.A., of the Ontario Court of Appeal. On May 16, 2014, Cronk, J.A., released the following reasons for judgment for the court.