Ontario (Attorney General) v. Chatterjee,

• Jurisdiction: Ontario
• Judge: Labrosse, Sharpe and Rouleau, JJ.A.
• Neutral Citation: 2007 ONCA 406
• Date: 30 May 2007
• Court: Court of Appeal (Ontario)

Ont. (A.G.) v. Chatterjee (2007), 225 O.A.C. 40 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.091

Attorney General of Ontario (applicant/respondent) v. $29,020 in Canadian Currency, Exhaust Fan, Light Ballast, Light Socket (In Rem) and Robin Chatterjee (respondent/appellant)

(C45601; 2007 ONCA 406)

Indexed As: Ontario (Attorney General) v. Chatterjee

Ontario Court of Appeal

Labrosse, Sharpe and Rouleau, JJ.A.

May 30, 2007.

Summary:

Chatterjee was arrested for breach of a recognizance. The police searched his vehicle incident to the arrest and discovered $29,020 in cash and some equipment commonly used in marijuana grow operations. Although the money and equipment smelled strongly of marijuana, no marijuana was found. Chatterjee was not charged with any drug-related offence. The Attorney General of Ontario brought an application in rem for forfeiture of the cash and equipment under the Remedies for Organized Crime and Other Unlawful Activities Act (the "Civil Remedies Act" or "CRA"). Chatterjee argued that the CRA was ultra vires the province and that it violated ss. 7, 8, 9 and 11(d) of the Charter. He also questioned the validity of the particular order made under the CRA.

The Ontario Superior Court, in a decision at [2006] O.T.C. 491,  rejected the constitutional challenge and the Charter arguments and allowed the Attorney General's application. Chatterjee appealed.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 4905

Presumption of innocence - General principles - When applicable - Chatterjee was arrested for breach of a recognizance - A search of his vehicle revealed $29,020 in cash and some equipment commonly used in marijuana grow operations - No marijuana was found - Chatterjee was not charged with any drug- related offence - The Attorney General of Ontario successfully applied for forfeiture of the cash and equipment under the Civil Remedies Act (CRA) - Chatterjee appealed - Chatterjee argued that the CRA violated the presumption of innocence guaranteed by s. 11(d) of the Charter because, under the CRA, the finding that an offence had been committed was made on a balance of probabilities - He further contended that the CRA placed a reverse onus on a person to establish that he or she was the legitimate owner of the property - The Ontario Court of Appeal held that Chatterjee was not a "person charged with an offence" and s. 11 of the Charter did not apply - See paragraphs 39 to 44.

Civil Rights - Topic 8305.1

Canadian Charter of Rights and Freedoms - General - Application - Section 11 - [See Civil Rights - Topic 4905 ].

Civil Rights - Topic 8545

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Charged with an offence - [See Civil Rights - Topic 4905 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Constitutional Law - Topic 28 ].

Constitutional Law - Topic 28

Raising constitutional issues - Status of party to raise constitutional issue - Chatterjee was arrested for breach of a recognizance - A search of his vehicle revealed $29,020 in cash and some equipment commonly used in marijuana grow operations - No marijuana was found - Chatterjee was not charged with any drug-related offence - The Attorney General of Ontario applied for forfeiture of the cash and equipment under the Civil Remedies Act (CRA) - Chatterjee argued that the CRA was ultra vires the province and that it violated several sections of the Charter - Chatterjee had only claimed a proprietary interest in the cash - The application judge held that Chatterjee did not have standing to challenge Part III of the CRA (forfeiture of instruments of unlawful activity) - The judge noted that none of the arguments focused on Part III and that Chatterjee had not argued against the forfeiture of the seized equipment - The Ontario Court of Appeal held that the application judge was correct in refusing Chatterjee standing to challenge those provisions of the CRA - See paragraphs 7 to 14.

Constitutional Law - Topic 1766

Extent of powers conferred - Necessarily incidental doctrine - Legislation necessarily incidental to provincial powers - Chatterjee was arrested for breach of a recognizance - A search of his vehicle revealed $29,020 in cash and some equipment commonly used in marijuana grow operations - No marijuana was found - Chatterjee was not charged with any drug-related offence - The Attorney General of Ontario applied for forfeiture of the cash and equipment under the Civil Remedies Act (CRA) - Chatterjee argued that the CRA was ultra vires the province - The application judge rejected Chatterjee's argument and allowed the Attorney General's application - Chatterjee appealed, arguing that the application judge erred in finding that the CRA's intrusions into the criminal law were merely incidental to its purposes and did not render the CRA ultra vires - The Ontario Court of Appeal rejected the argument - See paragraphs 31 to 36.

Constitutional Law - Topic 6441

Federal jurisdiction (s. 91) - Criminal law - General - Criminal law defined - Chatterjee was arrested for breach of a recognizance - A search of his vehicle revealed $29,020 in cash and some equipment commonly used in marijuana grow operations - No marijuana was found - Chatterjee was not charged with any drug-related offence - The Attorney General of Ontario applied for forfeiture of the cash and equipment under the Civil Remedies Act (CRA) - Chatterjee argued that the CRA was ultra vires the province - The application judge rejected Chatterjee's argument that the purpose of the CRA was to punish offenders by seizing and forfeiting their property - He found that the true purpose of the legislation was to require the disgorgement of financial gains obtained through unlawful activities, to compensate victims of crime, and to suppress the conditions that led to unlawful activities by removing the financial incentives for engaging in such behaviour - The Ontario Court of Appeal agreed with the application judge's assessment of the pith and substance of the CRA - The CRA was not a colourable attempt to legislate in relation to criminal law - See paragraphs 20 to 21.

Constitutional Law - Topic 6441

Federal jurisdiction (s. 91) - Criminal law - General - Criminal law defined - [See first Constitutional Law - Topic 7300.8 ].

Constitutional Law - Topic 6499

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Forfeiture of seized property - [See first Constitutional Law - Topic 6441 and first Constitutional Law - Topic 7300.8 ].

Constitutional Law - Topic 7300.8

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Organized crime or unlawful activity - Civil remedies (incl. forfeiture) - Chatterjee was arrested for breach of a recognizance - A search of his vehicle revealed $29,020 in cash and some equipment commonly used in marijuana grow operations - No marijuana was found - Chatterjee was not charged with any drug-related offence - The Attorney General of Ontario applied for forfeiture of the cash and equipment under the Civil Remedies Act (CRA) - Chatterjee argued that the CRA was ultra vires the province - The application judge rejected the argument and allowed the Attorney General's application - The Ontario Court of Appeal held that the application judge did not err in failing to classify the CRA as criminal law - The CRA dealt with: (1) the civil and property law consequences of unlawful activity; (2) the compensation of victims of crime; and (3) the suppression of conditions likely to produce crime - Those were matters that fell within the province's power to legislate under s. 92(13) in relation to property and civil rights in the province and s. 92(16) in relation to matters of a merely local or private nature in the province - See paragraphs 22 to 25.

Constitutional Law - Topic 7300.8

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Organized crime or unlawful activity - Civil remedies (incl. forfeiture) - The Ontario Court of Appeal stated that "the civil and property law consequences of unlawful activity fall squarely within provincial power under s. 92(13) in relation to 'property and civil rights'. There are well-established, long-standing principles of common law that a wrong-doer cannot profit from his or her own wrong and that there is no title to goods or property illegally obtained. It follows, therefore, that legislative competence to modify or extend these rules of property law falls within provincial legislative competence. Simply put, legislation providing for the property rights to and forfeiture of the proceeds of unlawful activity is legislation in relation to rights of property within the province" - See paragraph 26.

Constitutional Law - Topic 7504

Provincial jurisdiction (s. 92) - Matters of local or private nature - Unlawful activity - Civil remedies (incl. forfeiture) - [See first Constitutional Law - Topic 7300.8 ].

Criminal Law - Topic 7002

Civil remedies for unlawful activities - General - Legislation - [See Constitutional Law - Topic 1766 , first Constitutional Law - Topic 6441 and both Constitutional Law - Topic 7300.8 ].

Criminal Law - Topic 7062

Civil remedies for unlawful activities - Remedies - Forfeiture - Chatterjee was arrested for breach of a recognizance - A search of his vehicle revealed $29,020 in cash, and a light socket, a light ballast and an exhaust fan, items which were commonly used in marijuana grow operations - Although the money and equipment smelled strongly of marijuana, no marijuana was found - Chatterjee was not charged with any drug-related offence - The Attorney General of Ontario successfully applied for forfeiture of the cash and equipment under the Civil Remedies Act (CRA) - Chatterjee appealed, arguing that the application judge improperly shifted the onus of proof onto him to show that he was the "legitimate owner" pursuant to the CRA - The Ontario Court of Appeal dismissed the appeal - The application judge's finding that the money constituted proceeds of unlawful activity necessarily involved rejecting Chatterjee's explanation as to how he allegedly became the "legitimate owner" - It was open to the application judge to prefer the evidence of the police officers over that of Chatterjee and to find that his explanations regarding the origin of the cash were not credible - See paragraphs 46 to 51.

Cases Noticed:

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 9].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 9].

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1; 124 D.L.R.(4th) 129, refd to. [para. 11].

Phillips v. Nova Scotia (Commission of Inquiry in the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Magder (Paul) Furs Ltd. et al. v. Ontario (Attorney General), [1993] 3 S.C.R. 675; 160 N.R. 161; 67 O.A.C. 81, refd to. [para. 11].

Canadian Egg Marketing Agency v. Pineview Poultry Products Ltd. et al., [1998] 3 S.C.R. 157; 231 N.R. 201; 223 A.R. 201; 183 W.A.C. 201, refd to. [para. 13].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 13].

Ontario Public Service Employees' Union et al. v. Ontario (Attorney General) et al., [1987] 2 S.C.R. 2; 77 N.R. 321; 23 O.A.C. 161, refd to. [para. 17].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 22].

R. v. Westendorp, [1983] 1 S.C.R. 43; 46 N.R. 30; 41 A.R. 306, refd to. [para. 24].

Martineau v. Ministre du Revenu national, [2004] 3 S.C.R. 737; 328 N.R. 48, refd to. [para. 27].

Walsh v. Director of the Assets Recovery Agency, [2005] N.I.C.A. 6, refd to. [para. 28].

R. v. Zelensky, Eaton (T.) Co. and Canada (Attorney General) et al., [1978] 2 S.C.R. 940; 21 N.R. 372; 41 C.C.C.(3d) 97, refd to. [para. 29].

R. v. Raponi (W.), [2004] 3 S.C.R. 35; 323 N.R. 373; 354 A.R. 292; 329 W.A.C. 292; 185 C.C.C.(3d) 338, refd to. [para. 29].

Bedard v. Dawson, [1923] S.C.R. 681, refd to. [para. 30].

Dupond v. Montreal (City), [1978] 2 S.C.R. 770; 19 N.R. 478, refd to. [para. 30].

City National Leasing Ltd. v. General Motors of Canada Ltd., [1989] 1 S.C.R. 641; 93 N.R. 326; 32 O.A.C. 332, refd to. [para. 32].

Rio Hotel Ltd. v. Liquor Licensing Board (N.B.), New Brunswick (Attorney General) and Saskatchewan (Attorney General), [1987] 2 S.C.R. 59; 77 N.R. 104; 81 N.B.R.(2d) 328; 205 A.P.R. 328, refd to. [para. 33].

R. v. Wigglesworth, [1987] 2 S.C.R. 541; 81 N.R. 161; 61 Sask.R. 105; 24 O.A.C. 321, refd to. [para. 40].

R. v. Shubley, [1990] 1 S.C.R. 3; 104 N.R. 81; 37 O.A.C. 63, refd to. [para. 41].

Personal Service Coffee Corp. v. Beer et al. (2005), 200 O.A.C. 282; 256 D.L.R.(4th) 466 (C.A.), refd to. [para. 52].

Statutes Noticed:

Civil Remedies Act - see Remedies for Organized Crime and Other Unlawful Activities Act.

Remedies for Organized Crime and Other Unlawful Activities Act, S.O. 2001, c. 28, generally [para. 1].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (1992 Looseleaf Ed.), ss. 15.5(i) [para. 16]; 18.11(b) [para. 29].

Counsel:

James Diamond and Messod Boussidan, for the appellant;

Robin K. Basu and James McKeachie, for the respondent;

Paul Burstein and Louis P. Strezos for the intervener, The Criminal Lawyers' Association.

This appeal was heard on May 15 and 16, 2007, before Labrosse, Sharpe and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was released on May 30, 2007.