Ontario (Attorney General) v. Chatterjee, (2009) 387 N.R. 206 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.
CourtSupreme Court of Canada
Case DateNovember 12, 2008
JurisdictionCanada (Federal)
Citations(2009), 387 N.R. 206 (SCC);2009 SCC 19;EYB 2009-157414;242 CCC (3d) 129;[2009] 1 SCR 624;[2009] SCJ No 19 (QL);JE 2009-760;304 DLR (4th) 513;387 NR 206;249 OAC 355;65 CR (6th) 1

Ont. (A.G.) v. Chatterjee (2009), 387 N.R. 206 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2009] N.R. TBEd. AP.036

Robin Chatterjee (appellant) v. Attorney General of Ontario (respondent) and Attorney General of Canada, Attorney General of Quebec, Attorney General of Nova Scotia, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Criminal Lawyers' Association (Ontario), Canadian Civil Liberties Association and British Columbia Civil Liberties Association (intervenors)

(32204; 2009 SCC 19; 2009 CSC 19)

Indexed As: Ontario (Attorney General) v. Chatterjee

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.

April 17, 2009.

Summary:

Chatterjee was stopped by police because his car had no front licence plate. He was arrested for breach of a recognizance. The police searched his vehicle incident to the arrest and discovered $29,020 in cash, as well as an exhaust fan, a light ballast and a light socket. According to police, all of those items smelled of marijuana, although no marijuana was found. Chatterjee was never charged with any offence in relation to the money, items, or any drug related activity. The Attorney General of Ontario applied under ss. 3 and 8 of the Ontario Remedies for Organized Crime and Other Unlawful Activities Act (the "Civil Remedies Act" or "CRA") for forfeiture of the seized money as proceeds of unlawful activity and of the items as instruments of unlawful activity. Chatterjee challenged the CRA's constitutionality, arguing that the CRA's forfeiture provisions were ultra vires the province because they encroached on the federal criminal law power.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 592, held that the CRA was intra vires and valid provincial legislation. Chatterjee appealed.

The Ontario Court of Appeal, in a decision reported at 225 O.A.C. 40, dismissed the appeal, holding that the CRA was valid provincial legislation. Chatterjee appealed. The Chief Justice stated the following constitutional question: "Are ss. 1 to 6 and ss. 16 to 17 of the Remedies for Organized Crime and Other Unlawful Activities Act, 2001, S.O. 2001, c. 28, ultra vires the Province of Ontario on the ground that they relate to a subject matter which is within the exclusive jurisdiction of the Parliament of Canada under s. 91(27) of the Constitution Act, 1867". On the hearing of the appeal Chatterjee narrowed his challenge to argue that the CRA was ultra vires to the extent it provided for forfeiture of the proceeds of federal offences because to that extent the CRA was in pith and substance criminal law.

The Supreme Court of Canada dismissed the appeal, holding that the CRA was valid provincial legislation. The court answered "No" to the constiutional question. The court was of the view that this was a test case and made no order as to costs.

Constitutional Law - Topic 2511

Determination of validity of statutes or acts - General principles - Interjurisdictional immunity - At issue was whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act, 2001 ("Civil Remedies Act" or "CRA"), which authorized the forfeiture of proceeds of unlawful activity, was ultra vires the province of Ontario because it encroached on the federal criminal law power - The Supreme Court of Canada held that the CRA was valid provincial legislation - The court stated, inter alia, that "The argument that the CRA is ultra vires is based in this case on an exaggerated view of the immunity of federal jurisdiction in relation to matters that may, in another aspect, be the subject of provincial legislation. Resort to a federalist concept of proliferating jurisdictional enclaves (or 'interjurisdictional immunities') was discouraged by this Court's decisions in Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, [2007] 2 S.C.R. 86, and should not now be given a new lease on life. As stated in Canadian Western Bank, 'a court should favour, where possible, the ordinary operation of statutes enacted by both levels of government'" - See paragraph 2.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - The Supreme Court of Canada stated that "If the dominant purpose of the provincial enactment is in relation to provincial objects, the law will be valid, and if the enactments of both levels of government can generally function without operational conflict they will be permitted to do so. In factual situations where operational conflict does occur, the conflict will be resolved by the restrained view of federal paramountcy established by Multiple Access Ltd. v. McCutcheon" - See paragraph 36.

Constitutional Law - Topic 3504

Paramountcy of federal statutes - General principles - Requirement of conflict or repugnancy - [See third Criminal Law - Topic 7062 ].

Constitutional Law - Topic 3614

Paramountcy of federal statutes - Overlapping legislation - Conflict - What constitutes - [See first Criminal Law - Topic 7062 ].

Constitutional Law - Topic 6444

Federal jurisdiction (s. 91) - Criminal law - General - Matters not criminal - [See first Criminal Law - Topic 7062 ].

Constitutional Law - Topic 6499

Federal jurisdiction (s. 91) - Criminal law - Respecting particular matters - Forfeiture of seized property - [See all Criminal Law - Topic 7062 ].

Constitutional Law - Topic 6531

Federal jurisdiction (s. 91) - Criminal law - Sentencing - General - [See first and fourth Criminal Law - Topic 7062 ].

Constitutional Law - Topic 7300.8

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Organized crime or unlawful activity - Civil remedies (incl. forfeiture) - [See first and second Criminal Law - Topic 7062 ].

Criminal Law - Topic 7002

Civil remedies for unlawful activity (Civil Remedies Act) - General - Legislation - [See first and fourth Criminal Law - Topic 7062 ].

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act) - Remedies - Forfeiture - At issue was whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act, 2001 ("Civil Remedies Act" or "CRA"), which authorized the forfeiture of proceeds of unlawful activity, was ultra vires the province of Ontario because it encroached on the federal criminal law power - The Supreme Court of Canada held that the CRA was valid provincial legislation - The court stated that "The CRA was enacted to deter crime and to compensate its victims. The former purpose is broad enough that both the federal government (in relation to criminal law) and the provincial governments (in relation to property and civil rights) can validly pursue it. The latter purpose falls squarely within provincial competence. Crime imposes substantial costs on provincial treasuries ... It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot use deterrence to suppress it. Moreover, the CRA method of attack on crime is to authorize in rem forfeiture of its proceeds and differs from both the traditional criminal law which ordinarily couples a prohibition with a penalty ... and criminal procedure which in general refers to the means by which an allegation of a particular criminal offence is proven against a particular offender" - The court rejected the argument that the CRA invalidly interfered with the sentencing regime established by Parliament - The court stated that "forfeiture may have de facto punitive effects in some cases, but its dominant purpose is to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime and to help compensate private individuals and public institutions for the costs of past crime. These are valid provincial objects. There is no operational conflict between the forfeiture provisions of the Criminal Code and the CRA. It cannot reasonably be said that the CRA amounts to colourable criminal legislation" - See paragraphs 3 to 4.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act) - Remedies - Forfeiture - At issue was whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act, 2001 ("Civil Remedies Act" or "CRA"), which authorized the forfeiture of proceeds of unlawful activity, was ultra vires the province of Ontario because it encroached on the federal criminal law power - The Supreme Court of Canada held that the CRA was valid provincial legislation - The court stated, inter alia, "at what point does a provincial measure designed to 'suppress' crime become itself 'criminal law'? There will often be a degree of overlap between measures enacted pursuant to the provincial power (property and civil rights) and measures taken pursuant to the federal power (criminal law and procedure). In such cases it is necessary for the Court to identify the 'dominant feature' of an impugned measure. If, as is argued by the Attorneys General here, the dominant feature of the CRA is property and civil rights, it will not be invalidated because of an 'incidental' intrusion into the field of criminal law" - The court further stated that "I agree that the CRA was enacted 'in relation to' property and civil rights and may incidentally 'affect' criminal law and procedure without doing violence to the division of powers" - See paragraphs 29 to 30.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act) - Remedies - Forfeiture - At issue was whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act, 2001 ("Civil Remedies Act" or "CRA"), which authorized the forfeiture of proceeds of unlawful activity, was ultra vires the province of Ontario because it encroached on the federal criminal law power - The Supreme Court of Canada held that the CRA was valid provincial legislation - With respect to the concern that the federal forfeiture provisions would be displaced by the CRA with its lower threshold of proof, the court stated that "where no forfeiture is sought in the sentencing process, I see no reason why the Attorney General cannot make an application under the CRA. Where forfeiture is sought and refused in the criminal process, a different issue arises" - The court stated that the doctrines of res judicata, issue estoppel and abuse of process were adequate to prevent the prosecution from re-litigating the sentencing issue and that procedural options were available where a CRA judge considered that the conduct of the Attorney General was abusive of the processes of the court - Further, if in particular circumstances a conflict arose with the CRA to the extent that dual compliance was impossible, then the doctrine of paramountcy would render the CRA inoperable to the extent of the conflict - See paragraphs 49 to 52.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act) - Remedies - Forfeiture - At issue was whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act, 2001 ("Civil Remedies Act" or "CRA"), which authorized the forfeiture of proceeds of unlawful activity, was ultra vires the province of Ontario because it encroached on the federal criminal law power - The Supreme Court of Canada held that the CRA was valid provincial legislation - The court stated, inter alia, that "The Constitution permits a province to enact measures to deter criminality and to deal with its financial consequences so long as those measures are taken in relation to a head of provincial competence and do not compromise the proper functioning of the Criminal Code including the sentencing provisions. ... There is no general bar to a province's enacting civil consequences to criminal acts provided the province does so for its own purposes in relation to provincial heads of legislative power" - Further "the fact the CRA aims to deter federal offences as well as provincial offences and indeed offences committed outside Canada, is not fatal to its validity. On the contrary, its very generality shows that the province is concerned about the effects of crime as a generic source of social ill and provincial expense, and not with supplementing federal criminal law as part of the sentencing process" - See paragraphs 40 to 41.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - At issue on the appellant's appeal was whether the Ontario Remedies for Organized Crime and Other Unlawful Activities Act, 2001 ("Civil Remedies Act" or "CRA"), which authorized the forfeiture of proceeds of unlawful activity, was ultra vires the province of Ontario because it encroached on the federal criminal law power - The Supreme Court of Canada dismissed the appeal, holding that the CRA was valid provincial legislation - The court was of the view that this was a test case and it made no order as to costs - See paragraph 54.

Cases Noticed:

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, appld. [para. 2].

British Columbia (Attorney General) v. Lafarge Canada Inc., [2007] 2 S.C.R. 86; 362 N.R. 208; 241 B.C.A.C. 1; 399 W.A.C. 1; 2007 SCC 23, appld. [para. 2].

Burrardview Neighbourhood Association v. Vancouver (City) et al. - see British Columbia (Attorney General) v. Lafarge Canada Inc.

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 161 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 4].

Starr et al. v. Houlden, [1990] 1 S.C.R. 1366; 110 N.R. 81; 41 O.A.C. 161, refd to. [para. 15].

Scowby et al. v. Glendinning et al., [1986] 2 S.C.R. 226; 70 N.R. 241; 51 Sask.R. 208, refd to. [para. 15].

R. v. Morgentaler, [1993] 3 S.C.R. 463; 157 N.R. 97; 125 N.S.R.(2d) 81; 349 A.P.R. 81, refd to. [para. 19].

Martineau v. Ministre du Revenu national, [2004] 3 S.C.R. 737; 328 N.R. 48; 2004 SCC 81, refd to. [para. 25].

Bédard v. Dawson, [1923] S.C.R. 681, consd. [para. 26].

Switzman v. Elbling, [1957] S.C.R. 285, consd. [para. 27].

Dupond v. Montreal (City), [1978] 2 S.C.R. 770; 19 N.R. 478, consd. [para. 28].

Di Iorio and Fontaine v. Warden of the Common Jail of Montreal (City) et al., [1978] 1 S.C.R. 152; 8 N.R. 361, refd to. [para. 28].

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. 30].

Industrial Acceptance Corp. v. R., [1953] 2 S.C.R. 273, consd. [para. 32].

Johnson v. Alberta (Attorney General), [1954] S.C.R. 127, dist. [para. 32].

Reference Re Validity of the Combines Investigation Act and of s. 498 of the Criminal Code, [1929] S.C.R. 409, refd to. [para. 32].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 36].

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. 36].

M & D Farm Ltd. et al. v. Manitoba Agricultural Credit Corp., [1999] 2 S.C.R. 961; 245 N.R. 165; 138 Man.R.(2d) 161; 202 W.A.C. 161, refd to. [para. 36].

R. v. Zelensky, Eaton (T.) Co. and Canada (Attorney General) et al., [1978] 2 S.C.R. 940; 21 N.R. 372, consd. [para. 39].

Prince Edward Island (Provincial Secretary) v. Egan, [1941] S.C.R. 396, refd to. [para. 40].

Ross v. Registrar of Motor Vehicles and Ontario (Attorney General), [1975] 1 S.C.R. 5; 1 N.R. 9, refd to. [para. 40].

Ontario (Attorney General) v. Cole-Watson - see Ontario (Attorney General) v. $14,750 in Canadian Currency et al.

Ontario (Attorney General) v. $14,750 in Canadian Currency et al., [2007] O.T.C. Uned. 809 (Sup. Ct.), refd to. [para. 50].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 51].

Statutes Noticed:

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

Constitution Act, 1867, sect. 91(27), sect. 92(13), sect. 92(14), sect. 92(15), sect. 92(16) [para. 8].

Criminal Code, R.S.C. 1985, c. C-46, sect. 462.37 [para. 8].

Remedies for Organized Crime and Other Unlawful Activities Act, S.O. 2001, c. 28, sect. 1, sect. 2, sect. 3(1), sect. 3(3), sect. 6(3) [para. 8].

Authors and Works Noticed:

Gallant, Michelle, Ontario (Attorney General) v. $29,020 in Canadian Currency: A Comment on Proceeds of Crime and Provincial Forfeiture Laws (2006), 52 Crim. L.Q. 64, p. 83 [para. 49].

Ontario (Attorney General), Civil Forfeiture in Ontario 2007 - An Update on the Civil Remedies Act, 2001 (2007), generally [para. 19].

Counsel:

Richard Macklin and James F. Diamond, for the appellant;

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

Cheryl J. Tobias and Ginette Gobeil, for the intervenor, the Attorney General of Canada;

Jean-Vincent Lacroix, for the intervenor, the Attorney General of Quebec;

Written submissions only by Edward A. Gores, Q.C., for the intervenor, the Attorney General of Nova Scotia;

Michael Conner, for the intervenor, the Attorney General of Manitoba;

J. Gareth Morley and Bryant A. Mackey, for the intervenor, the Attorney General of British Columbia;

Graeme G. Mitchell, Q.C., for the intervenor, the Attorney General for Saskatchewan;

Roderick Wiltshire and Donald Padget, for the intervenor, the Attorney General of Alberta;

Thomas G. Mills, for the intervenor, the Attorney General of Newfoundland and Labrador;

Paul Burstein and Louis P. Strezos, for the intervenor, the Criminal Lawyers' Association (Ontario);

Bradley E. Berg and Allison A. Thornton, for the intervenor, the Canadian Civil Liberties Association;

David G. Butcher and Anthony D. Price, for the intervenor, the British Columbia Civil Liberties Association.

Solicitors of Record:

Levine, Sherkin, Boussidan, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent;

Department of Justice Canada, Vancouver, British Columbia, for the intervenor, the Attorney General of Canada;

Attorney General of Quebec, Quebec, Quebec, for the intervenor, the Attorney General of Quebec;

Department of Justice, Halifax, Nova Scotia, for the intervenor, the Attorney General of Nova Scotia;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, the Attorney General of Manitoba;

Ministry of the Attorney General, Victoria, B.C., for the intervenor, the Attorney General of British Columbia;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Alberta Justice, Edmonton, Alberta, for the intervenor, the Attorney General of Alberta;

Department of Justice, St. John's, Newfoundland and Labrador, for the intervenor, the Attorney General of Newfoundland and Labrador;

Louis P. Strezos, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario);

Blake, Cassels & Graydon, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Wilson, Buck, Butcher & Sears, Vancouver, B.C., for the intervenor, the British Columbia Civil Liberties Association.

This appeal was heard on November 12, 2008, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Binnie, J., on April 17, 2009.

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