HTTP/1.0 200 OK
Content-Type: text/html
Proceeds Of Crime Law Upheld
Pubdate: Wed, 30 May 2007
Source: Toronto Star (CN ON)
Copyright: 2007 The Toronto Star
Contact: http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Tracey Tyler, Legal Affairs Reporter
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
PROCEEDS OF CRIME LAW UPHELD
Ontario defence lawyers and a Thornhill man suspected of running a
marijuana grow operation have lost their battle to strike down a law
that gives the province power to seize property obtained through crime.
Robin Chatterjee and the Criminal Lawyers' Association argued that
the Civil Remedies Act, which took effect in 2002, is really an
attempt to punish offenders, not compensate crime victims.
The law imposes new civil consequences on offenders and complicates
the plea bargaining process because accused people have no way of
knowing what extra penalties they could face - in the form of
property loss - if they plead guilty, lawyers for Chatterjee and the
association argued earlier this month before the Ontario Court of Appeal.
"While this may be true, uncertainty as to the civil consequences of
a guilty plea has always existed," Justices Jean-Marc Labrosse,
Robert Sharpe and Paul Rouleau said in a ruling today, dismissing the
challenge brought under the Charter of Rights and Freedoms.
The court was ruling in an unusually-named case known as "Attorney
General of Ontario and $29,020 in Canadian Currency, Exhaust Fan,
Light Ballast, Light Socket and Robin Chatterjee."
Chatterjee was stopped by York Region police on March 27, 2003 after
he was seen driving a car missing its front licence plate. After he
was arrested for breaching bail conditions that required him to live
in Ottawa, police searched Chatterjee's car.
Inside they found $29,020 in cash, a light socket, a light ballast
and an exhaust fan, all commonly used in marijuana grow houses.
Although the money and equipment smelled strongly of marijuana, none was found.
Chatterjee was not charged with any drug-related offence because
police had no grounds to do so. Ontario's attorney-general, however,
applied to the Superior Court under the Civil Remedies Act to have
the car's contents seized.
Chatterjee argued the legislation violates the presumption of
innocence guaranteed under the Charter to all criminally accused
persons because property can be seized even if its owner has never
been convicted of crime. A court can order a person to forfeit their
property after finding on a balance of probabilities" they have
committed an offence - a less stringent standard than proof beyond a
reasonable doubt, required for a conviction.
But the appeal court said today the Charter's presumption of
innocence guarantees do not apply to the Civil Remedies Act, because
the law is not criminal in nature; property owners face no risk of
imprisonment and the forfeiture of their belongings doesn't carry the
stigma of a criminal conviction.
As for Chatterjee, an unemployed student, the court said there was
"overwhelming" evidence to support the Crown's contention that a
crime had been committed and that the contents of the car should be seized.
Among the 10 factors the court listed was Chatterjee's changing story
about the cash. He initially claimed the money belonged to his
sister, then said he didn't know who the cash belonged to. Later, he
said he won part of the money at a casino, but would not consent to
the release of casino records.
- ---
MAP posted-by: Beth Wehrman