



COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. $104,877 in U.S.
    Currency (In rem), 2016 ONCA 71

DATE: 20160125

DOCKET: C59589

Doherty, Pardu and Benotto JJ.A.

BETWEEN

Attorney General of Ontario

Applicant

(Respondent in Appeal)

and

$104,877 in U.S. Currency (In rem)

Respondent

(Appellant)

Glenroy Bastien, for the appellant

Miriam Young and Anastasia Mandziuk, for the respondent

Heard: January 20, 2016

On appeal from the order of Justice Sandra Chapnik of the
    Superior Court of Justice, dated September 30, 2014.

ENDORSEMENT

[1]

This is an appeal from the order of the application judge which granted
    the Attorney General of Ontario forfeiture of $104,877 in US currency under
    sections 3 and 8 of the
Civil Remedies Act
.

[2]

Alexander Bourgeois was on his way to Panama City when an airport
    security employee operating an x-ray machine detected something suspicious in
    his backpack. A search of his bag revealed $100,000 USD in tightly-wound
    bundles stuffed into twenty-two socks. Upon arrest, police officers found two
    more bundles totaling $4,877 USD in Mr. Bourgeois pockets, and a small amount
    of cocaine in his wallet.

[3]

On the application, the appellant said that the money was a combination
    of earnings from tips when he worked in a casino, gambling winnings and an
    insurance settlement arising from the death of his mother in a motor vehicle
    accident.

[4]

The appellant submits that the application judge erred in determining
    that the funds were proceeds of an unlawful activity or an instrument of
    unlawful activity and that he was not a legitimate owner.  He submits that
    there must be a factual context  in addition to the discovery of the cash  in
    order for the application judge to find that the monies were the proceeds of an
    unlawful activity. He relies on
Attorney General of Ontario v. $25,709.63
,
    CV-06-0172 at para 33.  He submits that this error on the part of the
    application judge amounted to an error of law reviewable on the correctness
    standard. He further submits that, in any event, the application judge should
    have granted relief from forfeiture in accordance with the interests of
    justice exception.

[5]

We conclude that, in rejecting the appellants submissions, the application
    judge made no error.  She correctly applied the two-step process mandated by
    the
Civil Remedies Act
: first, the Attorney General of Ontario must
    satisfy the court that the property is either the proceeds of unlawful activity
    or the instrument of unlawful activity and then, second, the respondent may
    seek protection from forfeiture under s. 3(3) or s. 8(3) as either a
    legitimate owner or a responsible owner.

[6]

At the first step, the application judge found that, on a balance of
    probabilities, Mr. Bourgeois was acting as a cash couriereither for drug
    trafficking or other profit-motivated unlawful activity. She specified that her
    conclusion was based on compelling evidence. In this regard, we conclude that
    she did consider the totality of the evidence and based her decision on factors
    in addition to the discovery of the money. She relied on and accepted a
    veritable laundry-list of evidence and those findings are entitled to
    deference. In addition she found that Mr. Bourgeois did not provide any cogent
    explanation for his behaviour or the amount of money in his possession. These
    findings by the application judge were reasonable on the evidence before her
    and no error has been shown.

[7]

At the second step, the application judge noted that at most Mr. Bourgeois
    evidence showed that it was possible for him to earn the money without unlawful
    activity. That was not sufficient for the appellant to discharge his onus.

[8]

We do not agree that the application judge erred by not providing relief
    under the interests of justice exception. She considered the three factors
    provided in this courts decision in
Ontario v. McDougall
, 2011 ONCA
    363 and concluded that the appellant was not an innocent owner; as the
    appellant was likely a participant in unlawful activity, his actions were not
    reasonable, it was not possible to distinguish the proceeds of crime from any
    other property, and the objectives of the legislation favoured forfeiture.

[9]

Lastly, we see no error in her decision to order partial indemnity costs
    of $15, 367.15 payable to the Attorney General.

[10]

The
    appeal is therefore dismissed with costs payable to the respondent in the
    amount of $6,000.00, inclusive of disbursements and HST.

Doherty J.A.

G. Pardu J.A.

M.L. Benotto
    J.A.


