COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. 20 Strike Avenue,
    2014 ONCA 395

DATE: 20140516

DOCKET: C57014

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Attorney General of Ontario

Applicant

(Appellant)

and

20 Strike Avenue, Bowmanville, Ontario
    (PIN #26932-0115 (L.T.)
and a

2005 Dodge Magnum (VIN # 2D4GV58255H680471) (
in rem
)

Respondent

(Respondent in Appeal)

William J. Manuel and Dan Phelan, for the appellant

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

Heard: February 25, 2014

On appeal from the order of Justice John R. McCarthy, of
    the Superior Court of Justice, dated April 10, 2013, with reasons reported at 2013
    ONSC 2130.

Cronk J.A.:

A.

introduction

[1]

This Crown appeal arises from the dismissal of an application by the
    Attorney General of Ontario (AGO) for forfeiture of a residential property in
    Bowmanville, Ontario under the
Civil Remedies Act, 2001
, S.O. 2001, c.
    28 (
CRA
).  The
CRA
establishes a civil forfeiture of
    property scheme, distinct from the forfeiture provisions of the
Criminal
    Code
, aimed at deterring crime, compensating victims of crime, and
    remedying the societal effects of criminality.  The statute provides for the forfeiture
    of certain kinds of property in Ontario to the provincial Crown in specific
    circumstances, including property that constitutes proceeds of unlawful
    activity (s. 3(1)) and property that is used to engage in unlawful activity (s.
    8(1)).

[2]

Forfeiture under the
CRA
, however, is subject to statutory
    exceptions, two of which are relevant to requests under s. 8(1) for forfeiture
    of property that is used to engage in unlawful activity.

[3]

The first exception, found in s. 8(3) of the
CRA
, applies where
    the party seeking to avoid forfeiture establishes that he or she is a
    responsible owner of the property sought to be forfeited (the Responsible
    Owner Exception).  In this event, the court is required to make an order that
    protects the owners interest in the property, unless the AGO demonstrates that
    such an order would clearly not be in the interests of justice.

[4]

The second exception, provided for under s. 8(1) itself, affords the
    courts discretion to relieve against forfeiture where a forfeiture order would
    clearly not be in the interests of justice (the Interests of Justice
    Exception).

[5]

This appeal was heard at the same time as
Ontario (Attorney General)

v. 51 Taylor Avenue
, 2014 ONCA 396 and
Ontario (Attorney General)

v. 714 Railton Avenue
, 2014 ONCA 397, released concurrently with these
    reasons.  Each case involves a s. 8(1) application by the AGO for forfeiture of
    property used to engage in unlawful activity, defined under the
CRA
as
    property that is an instrument of unlawful activity.

[6]

In this case, the application judge concluded that the property owner
    could not rely on the Responsible Owner Exception to avoid forfeiture of the
    targeted residence.  However, he also held that the Interests of Justice
    Exception to forfeiture applied in all the circumstances.  In particular, he
    found that the AGO had delayed for six years in commencing a forfeiture
    proceeding, without adequate explanation and to the prejudice of the property
    owner.  In the application judges view, this rendered forfeiture unfair and a
    manifestly harsh and inequitable result.  He therefore dismissed the AGOs forfeiture
    application.

[7]

The Crown appeals, arguing that the application judges analysis of the
    Interests of Justice Exception to forfeiture is infected by palpable and
    overriding factual errors, as well as errors of law.

[8]

The respondent defends the application judges reliance on the Interests
    of Justice Exception to deny forfeiture.  However, it submits that the
    application judge erred by holding that the Responsible Owner Exception to
    forfeiture did not apply on the facts here.  The respondent says that both
    exceptions to forfeiture under s. 8(1) are engaged in this case.

B.

relevant statutory provisions

[9]

Section 1 of the
CRA
contains the following description of the purpose
    of the
CRA
:

1.
The purpose of this Act is to provide
    civil remedies that will assist in,

(a) compensating persons who suffer pecuniary or non-pecuniary
    losses as a result of unlawful activities;

(b) preventing persons who engage in unlawful activities and
    others from keeping property that was acquired as a result of unlawful
    activities;

(c) preventing property, including vehicles as defined in Part
    III.1, from being used to engage in certain unlawful activities; and

(d) preventing injury to the public that may result from
    conspiracies to engage in unlawful activities.

[10]

Section
    8(1) of the
CRA
authorizes the forfeiture of property that is an instrument
    of unlawful activity.  It reads:

8. (1)
In a proceeding commenced by the
    Attorney General,
the Superior Court of Justice shall, subject to
    subsection (3) and except where it would clearly not be in the interests of
    justice, make an order forfeiting property
that is in Ontario to the Crown
    in right of Ontario
if the court finds that the property is an instrument
    of unlawful activity
.  [Emphasis added.]

[11]

Section
    7(1) of the
CRA
defines the phrases instrument of unlawful activity
    and unlawful activity in this fashion:

instrument of unlawful activity
 means
    property that is likely to be used to engage in unlawful activity that, in
    turn, would be likely to or is intended to result in the acquisition of other
    property or in serious bodily harm to any person, and includes any property
    that is realized from the sale or other disposition of such property;

unlawful activity
 means an act or omission
    that,

(a) is an offence under an Act of
    Canada, Ontario or another province or territory of Canada, or

(b) is an offence under an Act of a
    jurisdiction outside Canada, if a similar act or omission would be an offence
    under an Act of Canada or Ontario if it were committed in Ontario,

whether the act or omission occurred before or after this Part
    came into force.

[12]

Forfeiture
    under s. 8(1) is expressly subject to the Responsible Owner Exception
    established by s. 8(3) of the
CRA
.  Section 8(3) states:

8. (3)  If the court finds that property is an instrument of
    unlawful activity and a party to the proceeding proves that he, she or it is a
    responsible owner of the property, the court, except where it would clearly not
    be in the interests of justice, shall make such order as it considers necessary
    to protect the responsible owners interest in the property.

[13]

The
    term responsible owner is defined in s. 7(1) of the
CRA
in these
    terms:

responsible owner means, with respect to property that is an
    instrument of unlawful activity, a person with an interest in the property who
    has done all that can reasonably be done to prevent the property from being
    used to engage in unlawful activity, including,

(a)

promptly notifying appropriate
    law enforcement agencies whenever the person knows or ought to know that the
    property has been or is likely to be used to engage in unlawful activity, and

(b)

refusing or withdrawing any
    permission that the person has authority to give and that the person knows or
    ought to know has facilitated or is likely to facilitate the property being
    used to engage in unlawful activity.

[14]

As
    I have said, forfeiture of an instrument of unlawful activity is also subject
    to the Interests of Justice Exception created by s. 8(1).  The
CRA
contains no definition of the broad phrase interests of justice.  Instead, it
    is left to the court to determine, on a case-by-case basis, whether the
    applicable circumstances justify granting relief from forfeiture.

[15]

Finally,
    by operation of s. 8(5) of the
CRA
, no statutory limitation period
    applies to a s. 8 forfeiture proceeding.

C.

Facts

(1)

Ownership and Occupancy of the Property

[16]

On
    February 24, 2012, the AGO applied to the Superior Court of Justice for
    forfeiture of a single-family, private residence located at 20 Strike Avenue,
    in Bowmanville (the Property).  At all material times, Roger Parker (Roger),
    the president and principal shareholder of Parker Brothers Textile Mills (Parker
    Brothers), was the registered owner of the Property.

[17]

Roger
    purchased the Property in 2003 for $159,900, assuming a mortgage in the
    approximate amount of $147,000 in partial satisfaction of the purchase price.  Roger
    honoured his mortgage obligations in the normal course, from his own funds,
    until the date of the AGOs forfeiture application.

[18]

It
    was Rogers evidence that he acquired the Property for reasons related to his
    textile business.  He expected that it would serve as his residence if he were
    required to attend the Parker Brothers facility in Bowmanville for significant
    periods of time.  As it happened, Roger never resided at the Property.
    Instead, he rented the Property to his son, Fred Parker (Fred), at various
    intervals between 2004 and late January 2011.  Fred worked at the Parker
    Brothers textile plant in Bowmanville.  Roger charged Fred rent for his
    occupancy of the Property, in the amounts of $800 and, later, $1,310 per
    month.  He arranged for the rental payments to be automatically deducted from
    his sons salary at Parker Brothers.

[19]

At
    the time of the forfeiture hearing, Fred was 43 years old.  It is common ground
    that he has battled a long-standing and serious addiction to drugs since he was
    about 18 years of age.  For decades, with Rogers assistance and that of other
    family members, Fred repeatedly attempted to overcome his drug habit.
    Unfortunately, his efforts were unsuccessful.

[20]

Fred
    also has a lengthy criminal record, consisting of approximately 36 criminal
    convictions dating from 1989, including at least nine convictions for the
    possession of drugs or possession of drugs for the purposes of trafficking.  He
    also has 14 convictions for failing to comply with court orders.  In several
    instances, Roger acted as Freds bail surety in respect of his criminal
    charges, and paid his legal bills.

(2)

Criminal Activity at the Property

(a)

March 2006 Police Investigation

[21]

On
    March 10, 2006, the police executed a search warrant at the Property.  They
    found an indoor marijuana grow operation in three rooms in the basement of the
    home, with 86 marijuana plants having an estimated street value of up to $86,000.
    They also discovered various drug-related paraphernalia, 117.8 grams of packaged
    marijuana, 147 grams of cocaine, small amounts of cannabis resin, oxycodone and
    ecstasy, and $2,549.15 in cash located in various rooms of the house.  Fred,
    who was then residing at the Property, was arrested.

[22]

Later
    the same month, the police executed a search warrant at the Parker Brothers
    plant in Bowmanville, where Fred worked.  At the plant, the police discovered a
    sophisticated, industrial-scale marijuana grow operation in a hidden room, with
    895 marijuana plants having an estimated street value of $895,000.

[23]

From
    March 10, 2006 until May 2, 2006, Fred was detained in custody.  On the latter
    date, he was released on bail with Roger acting as surety.  While on bail, he
    resided with his father.

[24]

On
    January 7, 2008, Fred pleaded guilty to production of marijuana and possession
    of cocaine for the purposes of trafficking.  He was sentenced to two years and
    six months imprisonment.

(b)

July 2010 Police Investigation

[25]

In
    September 2009, Fred was released on parole.  He resumed living at the
    Property, together with his girlfriend and son.

[26]

In
    late June or early July 2010, having received information that Fred was selling
    drugs from the Property while on parole, the police placed Fred under
    surveillance.  During the surveillance, the police saw Fred attending a known
    crack house located near the Property.  They also observed significant traffic
    at the crack house and at the Property, when Fred was present, consistent with
    drug trafficking activity.

[27]

On
    the afternoon of July 2, 2010, Fred was arrested outside the crack house.  He
    was found in possession of $1,610 in cash, eight grams of cocaine, 33 oxycodone
    pills of varying strength, and a vial containing five grams of hash
    oil/cannabis resin.

[28]

Later
    the same day, the police executed a search warrant at the Property.  They
    seized a variety of pills, including a bottle of 15 oxycocet pills (in part containing
    oxycodone) and two tablets containing the controlled substance nabilone,
    together with a digital scale and marijuana grinder, from the kitchen of the
    house.

[29]

On
    July 20, 2010, Fred pleaded guilty to possession for the purposes of
    trafficking (cocaine) and possession of a controlled substance (oxycodone).  He
    was sentenced to five months in jail, plus two years probation.

[30]

As
    a result of these convictions, Fred was in custody from early July 2010 to
    October 2010.  On his release from jail, he returned to live at the Property.

(c)

January 2011 Police Investigation

[31]

In
    December 2010 and January 2011, the police received information that Fred and
    his girlfriend were trafficking in prescription drugs.  On January 19 and 20,
    2011, the police observed the couple leaving the Property and meeting with
    various individuals for short periods of time in their vehicle, engaging in what
    the police believed was a series of drug transactions.  These encounters included
    a brief meeting with an individual who, on subsequent arrest, was found in
    possession of three oxycodone pills and 2.4 grams of crack cocaine.

[32]

On
    January 22, 2011, the police monitored Fred throughout the day.  Later that
    evening, when the police conducted a traffic stop of the car that Fred was
    driving, Fred and his girlfriend were arrested for trafficking.  During a
    search of the vehicle incident to arrest, the police discovered small
    quantities of drugs and drug-related items on Freds person or in the car,
    including 0.02 grams of crack cocaine, 178 marijuana seeds, seven vials of
    cannabis resin, a spoon with cocaine residue, two crack pipes, two needles containing
    an unknown substance, a butane torch, and $1,335 in cash.

[33]

The
    next day, January 23, 2011, the police again executed a search warrant at the
    Property.  On this occasion, they found five 30 milligram Benzodiazapine
    tablets, 30 milligrams of marijuana and 73 unknown pink tablets, plus a spoon
    containing 0.4 grams of cocaine residue, a digital scale and a stun taser.  Virtually
    none of these items was in plain view.

[34]

On
    May 18, 2011, Fred pleaded guilty to possession of a controlled substance,
    possession of a prohibited weapon, and three counts of breach of recognizance.
    He was sentenced to approximately 11 months in jail and two years probation.

[35]

After
    his arrest on January 22, 2011, Fred never again resided at the Property.  On
    his release from custody in December 2011, he resumed living with his father.

(3)

Forfeiture

Proceeding and Sale of the Property

[36]

On
    February 24, 2012, the AGO applied for an order forfeiting the Property as an
    instrument of unlawful activity under s. 8(1), or as the proceeds of unlawful
    activity under s. 3(1), of the CRA.
[1]
On the same day, the AGO obtained a 30-day preservation order concerning the
    Property.  The preservation order was subsequently continued until the hearing
    of the forfeiture application or further court order.

[37]

At
    the time of the forfeiture application, the Property was listed for sale.  It
    was Rogers evidence that he had attempted to sell the Property as early as
    2007, without success.  By court order dated June 20, 2012, Roger was
    authorized to sell the Property, subject to various conditions, including the
    requirement that the net proceeds of sale be paid into court pending the
    determination of the AGOs forfeiture application.  The Property was
    subsequently sold on consent of the parties and the net proceeds of sale, in
    the amount of $123,269.54, were paid into court.

(a)
Parties Positions at the Forfeiture
    Hearing

[38]

In
    his application for forfeiture, the AGO identified Roger as the registered
    owner of the Property.  The AGO asserted that Roger purchased the Property for
    Freds benefit or, alternatively, that Fred was a nominee owner of the
    Property.  The AGO also alleged that, based on the numerous times that Roger
    had acted as Freds bail surety, he appeared to be fully aware of Freds drug
    trafficking and criminal activity.  Indeed, the AGO maintained that Roger
    facilitated and condoned his sons criminal activities at the Property and
    the Parker Brothers Bowmanville plant.

[39]

At
    the forfeiture hearing, the AGO argued that Roger had failed to prevent Fred from
    repeatedly using the Property to engage in unlawful activity.  As a result, Roger
    could not demonstrate that he was a responsible owner of the Property within
    the meaning of the Responsible Owner Exception to forfeiture under s. 8(3) of
    the
CRA
.  Similarly, according to the AGO, Roger could not bring
    himself within the Interests of Justice Exception to forfeiture under s. 8(1)
    of the
CRA
.  Neither exception to forfeiture having been triggered, a
    forfeiture order was therefore mandatory.

[40]

The
    respondent conceded that the Property could be considered an instrument of
    unlawful activity, as defined under s. 7 of the
CRA
.  The respondent argued,
    however, that Roger was a responsible owner of the Property within the meaning
    of ss. 7 and 8(3) of the
CRA
, with the result that the Responsible
    Owner Exception to forfeiture applied.  The respondent also maintained, based
    on the circumstances as a whole, that the Interests of Justice Exception to
    forfeiture applied.  In support of this submission, the respondent emphasized the
    limited connection between the Property and Freds unlawful activities, and Rogers
    own limited connection to his sons unlawful activities.  These considerations,
    the respondent urged, compelled the conclusion that forfeiture should be denied
    based on the Interests of Justice Exception.

(b)
Application Judges Decision

[41]

The
    application judge reviewed the relevant provisions of the
CRA
, the
    purposes of the
CRA
, and the parties positions.  He concluded that
    the Property was an instrument of unlawful activity within the meaning of s. 7 of
    the
CRA
.

[42]

The
    application judge then considered whether the statutory exceptions to
    forfeiture applied in the circumstances.  He first addressed the Responsible
    Owner Exception, holding as follows:

(1)

Roger failed
    to establish that he had taken reasonable steps to ensure that the Property was
    not used as an instrument of unlawful activity;

(2)

Rogers
    evidence that he made regular visits to the Property to determine if his son
    was engaged in drug activity and that, during these visits, the house was clean
    and free of drug paraphernalia, must be rejected;

(3)

Roger was
    aware, prior to 2011, of his sons problems with substance abuse and law
    enforcement authorities.  He was also aware, on at least two occasions (as a
    result of Freds 2006 and 2010 convictions), of Freds unlawful activity at the
    Property; and

(4)

nonetheless,
    Roger failed to take any steps to terminate his sons use of the Property.
    Moreover, he also failed to take the type of extraordinary measures (such as
    unscheduled or surprise visits) that a reasonably diligent property owner, in
    the circumstances, would undertake.

[43]

Based
    on these findings, the application judge held that the respondent could not
    avail itself of the Responsible Owner Exception.

[44]

The
    application judge then turned to the Interests of Justice Exception to
    forfeiture.  He considered certain of the principles relating to forfeiture described
    by this court in
Ontario (Attorney General) v. 8477 Darlington Crescent
,
    2011 ONCA 363, 279 O.A.C. 268 (
Darlington
)
[2]
,
    in particular, whether Rogers conduct, as owner of the Property, assisted the
    respondent.  He found that:

(1)

there was
    no suggestion that Roger was complicit in, or profited from, his sons unlawful
    activities at the Property;

(2)

contrary
    to the AGOs contention, Roger was the sole and exclusive beneficiary of the
    Property, having purchased it for legitimate reasons; and

(3)

Roger rented
    the Property to his son for legitimate reasons connected with his sons employment
    by Parker Brothers.

[45]

However,
    the application judge also held that:

(4)

since
    Roger had failed to act as a responsible owner in relation to the Property, his
    conduct alone was insufficient to trigger the Interests of Justice Exception to
    forfeiture.

[46]

Having
    considered Rogers conduct, as owner of the Property, the application judge
    then reviewed what he termed the entire circumstances of the case, in
    particular, the AGOs conduct, to determine whether the Interests of Justice
    Exception should be invoked.  He made the following key findings:

(1)

although the
    AGO had grounds to bring a forfeiture application as early as March 2006, the
    AGO delayed six years  until late February 2012  before commencing the
    application;

(2)

it was clearly
    not in the interests of justice to allow the AGO to bide his time in
    commencing proceedings under the
CRA
, while Roger, as an unsuspecting
    property owner continued to maintain the Property and to use his own funds to pay
    down his mortgage, thereby increasing his equity in the Property over time;

(3)

the only
    reason offered by the AGO for the six-year delay was a backlog in prospective
    forfeiture applications; and

(4)

in the
    absence of an adequate explanation for the delay and in light of the prejudice
    to the property owner, the Interests of Justice Exception to forfeiture applied
    to prevent the AGO from delaying beyond a reasonable period from the date when
prima facie
grounds for forfeiture existed.

[47]

The
    application judges conclusion on the Interests of Justice Exception is set out
    in this succinct passage, at para. 19 of his reasons:

I cannot imagine that reasonable members of the community would
    not find it troubling, perhaps even shocking, for a court to order forfeiture
    in these circumstances.  Fairness requires a balancing of the competing
    interests of the [appellant] and the property owner.  An unexplained six year
    delay in bringing a forfeiture application under s. 8(1) of the [
CRA
],
    while an unsuspecting owner of the property builds up his equity in a property
    for the benefit of the [AGO], is unfair to the point of offensive. To grant
    forfeiture in these circumstances would, in my view, be a manifestly harsh and
    inequitable result.

[48]

Accordingly,
    relying on the s. 8(1) Interests of Justice Exception to forfeiture, the
    application judge dismissed the AGOs forfeiture application.

D.

issues

[49]

The
    Crown argues that the application judges analysis of the Interests of Justice
    Exception to forfeiture is fatally flawed in several respects.  It submits that
    the application judge erred:

(1)

by finding
    that the AGO delayed for six years, without adequate explanation and to the
    prejudice of the Property owner, in commencing the forfeiture application;

(2)

by
    imposing a judicially-created limitation period for forfeiture applications
    under s. 8(1) of the
CRA
;

(3)

by

improperly

substituting

his

discretion

for

that

of

the
    police and the AGO regarding whether, and when,

a

forfeiture

application should be commenced; and

(4)

by
    adopting a broad and liberal construction of the Interests of Justice Exception
    under s. 8(1) of the
CRA
.

[50]

The
    respondent raises an additional issue, arguing that the application judge
    erred:

(5)

by
    concluding that the
CRA
s. 8(3) Responsible Owner Exception to
    forfeiture does not apply in this case.

E.

analysis

(1)

Interests of Justice Exception to Forfeiture

[51]

The
    interpretation of the Interests of Justice and Responsible Owner Exceptions to
    forfeiture under ss. 8(1) and (3) of the
CRA
are matters of first
    impression for this court.

[52]

However,
    this court has considered similar issues under the
CRA
, in the context
    of forfeiture applications relating to property that constitutes the proceeds
    of crime.  Section 3(1) of the
CRA
provides for relief from forfeiture
    of such property where a forfeiture order would clearly not be in the
    interests of justice.  In
Darlington
, this court considered this
    exception to forfeiture and commented, at para. 84:

The interests of justice exception to forfeiture recognizes
    that, given the very broad definition of proceeds of unlawful activity and
    the narrow exception to forfeiture carved out by the definition of legitimate
    owner, there will be cases that fall within the scope of the forfeiture power
    where, on any reasonable view, forfeiture would be a draconian and unjust
    result.

[53]

These
    comments are equally applicable to the Interests of Justice Exception under s.
    8(1) of the
CRA
and should guide this courts approach to relief from
    forfeiture under that provision.  I will return to the holdings in
Darlington
later in these reasons.

(a)

Findings of Unexplained,
    Prejudicial and Unfair Delay

[54]

The
    Crowns primary submission on appeal is that the application judges analysis
    of the Interests of Justice Exception under s. 8(1) rests on several factual
    findings that are tainted by palpable and overriding errors.  It contends that the
    application judges core finding that the AGO delayed for six years in seeking forfeiture
    of the Property, together with his associated findings regarding the reason for
    the delay and the ensuing prejudice to the Property owner, are fatally flawed.
    These errors, the Crown says, led the application judge to further err by
    invoking the Interests of Justice Exception to deny forfeiture of the Property.
    Since these submissions are inter-related, I will address them together.

[55]

First,
    the finding of a six-year delay.  The application judge held, in effect, that
    the AGO knowingly delayed  bide[d] his time  for six years in commencing
    the forfeiture application.  This finding comes very close to a holding of
    abuse of process or bad faith by the AGO.  I agree with the Crown that, on this
    record, this serious finding is unsustainable.

[56]

Simply
    put, the evidentiary record does not support the finding of a six-year delay
    attributable to the AGO.  The record details the staged process followed in
    Ontario under O. Reg. 91/02 for the determination whether a civil forfeiture
    proceeding should be commenced under the
CRA
.  In brief, this process
    involves an investigation by the police into suspected unlawful activity at a
    property, a referral by the police to an asset forfeiture unit officer for
    assessment, a referral by that officer to the Crown Law Office  Criminal to
    perform a gatekeeping function concerning potential civil forfeiture
    proceedings and, if a forfeiture submission is to proceed, a referral by that
    office to the Civil Remedies for Illicit Activities Office (CRIA)  the office
    within the Ontario Ministry of the Attorney General (MAG) responsible for
    proceedings under the
CRA
.  The CRIA then provides an opinion to the
    AGO about whether a forfeiture proceeding should be commenced.

[57]

As
    a result of this multi-step process, the AGO is generally not in a position to
    decide whether to approve the initiation of
CRA
forfeiture proceedings
    until a forfeiture submission has been received and evaluated by the CRIA and
    provided, with advice, to the AGO.  The decision whether to advance a
    forfeiture submission is made initially by the police and then by officials in
    the Crown Law Office  Criminal of the MAG.  Only then is a forfeiture
    submission potentially forwarded to the CRIA and, from it, to the AGO.

[58]

The
    record here reveals that the police first referred this case for evaluation of
    a possible
CRA
forfeiture proceeding in September 2011.  Prior to that
    date, the police acted independently in the enforcement of the criminal law
    during their investigations of potential unlawful activities at the Property.  It
    appears that it was not until approximately November 2011 that the forfeiture
    submission was forwarded by the CRIA to the AGO for consideration.

[59]

In
    these circumstances, I do not think it can fairly be said that the AGO delayed
    six years in initiating the forfeiture application.  The forfeiture submission
    did not even reach the MAG from the police until September 2011.  Measured from
    that date, the forfeiture proceeding was commenced within five months of the
    initial police referral and within approximately three months of the CRIA
    submission to the AGO.

[60]

Contrary
    to the application judges finding, therefore, there is no evidence that the
    AGO bide[d] his time in commencing the forfeiture application, let alone for
    six years.  Lacking any evidentiary footing, this finding is tainted by
    palpable and overriding error.

[61]

I
    note that the respondent made no complaint of undue and unfair delay in its
    materials on the forfeiture application.  Nor does it advance such a claim
    before this court.  The issue of excessive delay appears to have been raised by
    the application judge, of his own motion, during submissions at the forfeiture
    hearing.

[62]

I
    would not foreclose the possibility that, in a proper case, the timeliness of a
    forfeiture application may be relevant to the analysis whether the Interests of
    Justice Exception to forfeiture is implicated.  Indeed, the AGO acknowledged as
    much during oral argument at the appeal hearing.  However, an undue delay claim
    must be assessed in the context of the full record.  This did not occur in this
    case.  The application judges reasons make no mention of the
CRA
referral process or of the critical dates on which the forfeiture submission
    was first received by the MAG and subsequently forwarded to the AGO.

[63]

There
    is a second material defect in the application judges findings regarding delay.
    In one part of his reasons, the application judge stated that a six-year delay
    in commencing the forfeiture application arose because of a backlog in prospective
    forfeiture applications.  Later in his reasons, the application judge suggested
    that the cause of the delay was unexplained and that this unexplained delay
    and ensuing prejudice to the Property owner resulted in unfairness to the
    point of [being] offensive.  I take these seemingly conflicting statements to
    mean that, in the application judges view, the AGO failed to offer an
    acceptable explanation for what the application judge regarded as an unwarranted
    and prejudicial delay in commencing the forfeiture proceeding.

[64]

This
    finding is also infected by palpable and overriding error.  Before this court,
    both parties acknowledge that there was no evidence, and no party even
    suggested before the application judge, that the timing of the commencement of
    the forfeiture application was driven by a backlog in forfeiture applications.

[65]

Finally,
    the application judges dismissal of the forfeiture application was based in
    part on his finding of prejudice to Roger, as the unsuspecting Property owner,
    due to the appreciation of Rogers equity in the Property prior to the
    commencement of the forfeiture application.  I have already concluded that the
    application judges findings of unexplained and unfair delay attributable to
    the AGO are unsustainable.  It follows that any increase  or decrease  in Rogers
    equity in the Property prior to the date of the forfeiture application was
    largely irrelevant.  At its highest, this was but one factor to be considered
    in the analysis whether the court should exercise its discretion under the
    Interests of Justice Exception to shelter the Property from forfeiture.

(b)
Application Judges Approach to Section 8(5) of the
CRA

[66]

The
    Crown also argues that the application judge erred in his approach to s. 8(5)
    of the
CRA
.  Some forfeiture applications under the
CRA
are
    subject to a statutory limitation period, as for example, where forfeiture of
    property that constitutes proceeds of unlawful activity is sought under s. 3(1):
    see s. 3(5) of the
CRA
.  This stands in stark contrast to forfeiture
    requests under s. 8(1).  Section 8(5) of the
CRA
provides that there
    is no limitation period for a s. 8(1) forfeiture proceeding concerning property
    that is an instrument of unlawful activity.

[67]

The
    application judge was clearly cognizant of this important statutory provision, referring
    to it at least three times in his reasons.  The Crown submits that the
    application judge nonetheless erred by, in effect, applying a judicially
    imposed limitation period in respect of s. 8(1) forfeiture applications.  In
    so doing, the Crown contends, the application judge improperly substituted his
    own discretion for that of the police and the AGO as to whether, and when, a
CRA
s. 8(1) forfeiture proceeding should be commenced.

[68]

I
    agree that the application judge erred by failing to give effect to s. 8(5) of
    the
CRA
.  The legislative direction afforded by s. 8(5) exists for a
    reason.  It is designed to prevent the use of property for unlawful activity,
    whenever such use is discovered.  Section 8(5) confirms the legislatures clear
    intention that delay alone will not defeat a s. 8(1) forfeiture application
    concerning property that is used to engage in unlawful activity.  It follows
    that by relying principally, if not exclusively, on his perception of the AGOs
    delay in this case to deny forfeiture of the Property, notwithstanding the
    plain language of s. 8(5), the application judge further erred.

[69]

Moreover,
    s. 8(5) of the
CRA
signals the legislatures intention to provide the
    AGO with wide discretion in determining whether, and when, to commence a s. 8(1)
    forfeiture application under the
CRA
.  The application judge held that
    the AGO had grounds, as early as March 2006, to bring a forfeiture application
    and that the AGOs decision to proceed with forfeiture only in February 2012 was
    unfair and manifestly harsh and inequitable.  I agree with the Crowns
    submission that, in so holding, the application judge essentially substituted
    his discretion under s. 8(1) of the
CRA
to consider whether forfeiture
    of the Property was clearly not in the interests of justice for the discretion
    of the police and the AGO regarding the timing for commencement of a s. 8(1) forfeiture
    application.  With respect, this was not the application judges role.

(c)

Fresh Consideration of the Interests of Justice Exception

[70]

In
    light of the application judges errors, described above, it is unnecessary to
    consider the AGOs other complaints regarding the application judges exercise
    of his discretion to relieve against forfeiture of the Property.  As the
    application judges reliance on the Interests of Justice Exception rests on a
    flawed foundation, it cannot stand.  It therefore falls to this court to
    determine whether the courts discretion to relieve against forfeiture under the
    Interests of Justice Exception should be exercised.

[71]

The
    test for relief from forfeiture under the Interests of Justice Exception in s.
    8(1) of the
CRA
is a high one.  As the
Darlington
court noted,
    relief from forfeiture on this ground may only be granted where forfeiture is
    clearly not in the interests of justice.  Justice Doherty explained in
Darlington
,
    at para. 85:

Section 3(1) does not contemplate that the question of
    forfeiture will be decided based on a mere balancing of the pros and cons of
    making a forfeiture order.  The word clearly modifies the phrase interests
    of justice and must be given some meaning.  I think the word clearly speaks
    to the cogency of the claim advanced for relief from forfeiture.  The party
    seeking relief must demonstrate that, in the circumstances, the forfeiture order
    would be a manifestly harsh and inequitable result.

[72]

After
    careful consideration of the record and in light of the undisputed findings of
    the application judge, I conclude that forfeiture of the Property would be manifestly
    harsh and inequitable in the circumstances of this case and, hence, that it is
    clearly not in the interests of justice.  Accordingly, the courts discretion
    to relieve against forfeiture should be exercised.  I reach this conclusion for
    the following reasons.

[73]

In
Darlington
, this court analogized the discretion to refuse forfeiture
    under s. 3(1) of the
CRA
to the private law remedy of relief from
    forfeiture.  Citing the Supreme Courts decision in
Saskatchewan River
    Bungalows Ltd. v. Maritime Life Assurance Co
., [1994] 2 S.C.R. 490, at p.
    504, the
Darlington
court noted, at para. 87, that the power to
    relieve from civil forfeiture is both discretionary and fact-specific.
    Further, a court asked to grant relief from forfeiture under the
CRA
must consider all factors that are relevant to the interests of justice:
Darlington
at para. 97.

[74]

In
Darlington
, at para. 97, this court recognized that it is not possible
    to list all the factors that could properly be considered by the court in
    evaluating the interests of justice in a particular case.  However, Doherty
    J.A. identified the following factors as relevant:

(1) the closeness of the connection between the property and
    the illegal activity (para. 97);

(2) the reasonableness of the conduct of the party whose
    property is the subject of the forfeiture application as it relates to the
    unlawful activity (paras. 98 and 99);

(3) the interplay between the purposes of the
CRA
and
    the exercise of the discretion to relieve against forfeiture (paras. 98 and
    107); and

(4) the value of the property owners interest in the property
    compared to the value of the property that is tainted by the unlawful activity
    (paras. 98 and 104).

[75]

The
    first three factors listed above are pertinent in this case.  In my opinion,
    the evaluation of these factors on the facts here yields several compelling
    reasons that militate in favour of relief from forfeiture of the Property.

[76]

First,
    the connection between the Property and Freds illegal activities is neither
    consistent nor overwhelming.  There is no doubt that there was a connection
    between the Property and Freds drug activities in 2006, when a marijuana grow
    operation was found at the premises.  However, after that discovery, Fred did
    not reside at the Property for three and one-half years.  Indeed, when the
    six-year period between Freds arrest in March 2006 and the date of the
    forfeiture application is viewed as a whole, Fred did not live at the Property
    for almost four years and ten months.  And, when Fred was released from jail in
    2011, Roger did not permit him to resume living at the Property. Instead, he
    was required to reside with his father.

[77]

Further,
    there is no suggestion of drug activity at the Property after Fred returned to
    live there in September 2009, until the summer of 2010.  Even then, Fred was
    arrested at the nearby crack house, not at the Property.  Further, the
    drug-related items discovered at the Property were consistent with personal
    drug use.

[78]

Fred
    did suffer a relapse, and return to drug activity in late 2010 and January 2011.
    However, Fred and his girlfriend were arrested in late January 2011 in their
    vehicle, from which they were conducting drug transactions.  No arrests took
    place as a result of activities at the Property, notwithstanding police
    surveillance of Fred at the home, and no trafficking charges concerning drug
    transactions at the Property proceeded.  On the evidence before the application
    judge, it appears that Fred was living at the Property while engaging in drug
    activities, rather than using the Property to carry on those activities.

[79]

It
    is also relevant that, following Freds 2006 arrest, Roger attempted to sell
    the Property, albeit without success.  On the application judges findings,
    Rogers reasons for owning the Property were entirely and legitimately related
    to his business.  There was evidence that, in 2007, Roger listed the Property
    for sale, and he testified that he put it up for sale three or four times.
    Although his efforts to sell the Property were unsuccessful, they do reflect conduct
    consistent with placing the Property beyond Freds use for unlawful purposes.
    At a minimum, they undermine any suggestion that Roger intended to permit or
    was indifferent to his sons activities at the Property.

[80]

Moreover,
    by the time of the forfeiture application, the Property had been vacant for
    about one year and was again listed for sale.  As I have indicated, it was
    eventually sold, with court approval, in 2012.  There is no claim that it was
    available after January 2011 for any unlawful activity.

[81]

Finally,
    throughout his occupancy of the Property, Fred paid rent, deducted at source by
    his employer, Parker Brothers, from his salary.  This is not a case where
    rental payments were generated from the profits of drug-related activities.  Nor
    is this a case where the property owner acquired or maintained the Property
    utilizing funds from unlawful activities.  On the application judges findings,
    supported by the evidence, Roger was the exclusive beneficiary of the Property,
    having acquired it with his own funds for a
bona fide
business-related
    purpose.  He also maintained the Property and honoured his mortgage obligations
    utilizing his own funds.  Notwithstanding the AGOs more sweeping allegations
    in his materials on the forfeiture application, there was no evidence at the
    forfeiture hearing that Roger was complicit in, or profited from, his sons
    unlawful activities.

[82]

In
    all these circumstances, while the evidence established a connection between
    the Property and unlawful activity sufficient to ground the uncontested finding
    that the Property was an instrument of unlawful activity, that connection was
    limited and intermittent.

[83]

The
    second important factor to be considered is the interplay between the purposes
    of the
CRA
and the application of the Interests of Justice Exception
    in s. 8(1).  In
Darlington
, this court confirmed, at para. 95, that
    forfeiture orders under the
CRA
are intended to further the purposes
    of the statute, as set out in s. 1.  As a result, in deciding whether to grant
    relief from forfeiture under the
CRA
, the court must have regard to
    the effect of granting such relief on the achievement of the purposes of the
CRA
.

[84]

However,
    the
Darlington
court also held, at para. 96, that the broad concept of
    interests of justice contemplated under the
CRA
is not synonymous
    with the purposes of the
CRA
identified in s. 1.  Rather, those
    purposes form but part of the concept of interests of justice:
Darlington
at paras. 96 and 107.  Justice Doherty explained, at para. 96:

[The phrase interests of justice] is a broad one and includes
    maintaining public confidence in the civil justice process.  That confidence is
    promoted by orders that are, broadly speaking, in accord with the communitys
    sense of fairness.  A forfeiture order made in circumstances where any
    reasonable person would regard the order as excessive, while perhaps serving
    the purposes of the
CRA
in the narrow sense, would do a real disservice
    to the administration of justice and thereby undermine rather than promote the
    interests of justice.

[85]

The
    purposes of the
CRA
include compensating the victims of crime, crime
    prevention and deterrence.  Section 1(c) of the
CRA
provides that
    forfeiture is intended to assist in preventing property from being used to
    engage in certain unlawful activities.  Under s. 7(1) of the
CRA
, the
    term instrument of unlawful activity is defined as property that is likely
    to be used to engage in unlawful activity.  Thus, with respect to property
    that is used to engage in unlawful activity, both the purposes of the
CRA
and the definition of instrument of unlawful activity have a prospective,
    crime prevention and deterrence focus.

[86]

I
    again emphasize that by the time of the forfeiture application, the Property
    had been vacant for some time, Fred was residing with his father, Roger was
    attempting to sell the Property, and the Property, in fact, was sold shortly
    thereafter.  Further, Roger was not himself implicated in any unlawful activity
    relating to the use of the Property.

[87]

In
    these circumstances, an order requiring forfeiture of the Property would not
    promote the deterrence and crime prevention goals of the
CRA
.  There
    is also a strong argument that, by February 2012 (when the forfeiture
    application was commenced), the Property no longer constituted an instrument
    of unlawful activity.  I note that the application judge does not appear to
    have factored these considerations into his analysis.

[88]

I
    turn now to the third factor relevant to the analysis of the Interests of
    Justice exception in this case  the reasonableness of the property owners
    conduct in relation to unlawful activity at the property.

[89]

The
    application judge considered the reasonableness of Rogers conduct primarily under
    the rubric of his analysis of the Responsible Owner Exception to forfeiture.  With
    respect to this exception, he held that Roger knew of Freds problems with
    substance abuse and the law.  He also found that Roger failed to take: (1)
    reasonable steps to ensure that the Property was not used as an instrument of
    unlawful activity; (2) any steps to terminate Freds use of the Property; and
    (3) the type of extraordinary measures (such as unscheduled or surprise
    visits) that a reasonably diligent property owner, in the circumstances, would
    undertake.  In so holding, the application judge rejected Rogers evidence of
    regular visits to the Property to ensure that his son was not engaging in drug
    activity.

[90]

The
    application judge failed to undertake any analysis regarding the reasonableness
    of Rogers conduct in relation to his sons unlawful activities for the purpose
    of determining whether the Interests of Justice Exception to forfeiture should
    be invoked.  Instead, based on his findings with respect to the Responsible
    Owner Exception, he found that Rogers conduct alone was insufficient to
    warrant the protection of the Interests of Justice Exception.  As I have
    explained, he then concluded that the AGOs delay in commencing the forfeiture
    application justified the denial of forfeiture.

[91]

In
    my view, there are several difficulties with this approach to the analysis of
    the Interests of Justice Exception.  I accept that it was the application
    judges task to assess the evidence.  Absent palpable and overriding error, the
    application judges factual findings attract deference from this court.

[92]

But,
    for the purpose of determining whether to invoke the Interests of Justice
    Exception to forfeiture, the reasonableness of Rogers conduct must be
    evaluated in the context of the full evidentiary record.  It bears repetition
    that when relief from forfeiture is sought, all factors relevant to the
    interests of justice must be considered:
Darlington
at para. 97.

[93]

Moreover,
    as this court emphasized in
Darlington
, at para. 100, elementary
    justice requires that care be taken on a
CRA
forfeiture application to
    distinguish between a property owner who had no involvement in the criminal
    activity, was unaware of that activity, had acted reasonably throughout and did
    not profit from the activity and a property owner who was involved in and
    directly profited from the unlawful activity.

[94]

While
    involvement in criminal activity is not a prerequisite to a forfeiture order
    under s. 8(1) (
Darlington
at paras. 99 and 100), forfeiture under the
CRA
is not intended to penalize the undeserving or the innocent.  Justice Doherty put
    it this way in
Darlington,
at para. 101:

[T]aking a persons property away from that person has a
    punitive component.  The interests of justice require that punitive orders made
    by the courts be reasonably perceived by the community as being deserved by
    those against whom they are made.

I agree.

[95]

In
    this case, while the application judge identified aspects of the evidence that
    supported the conclusion that Roger could not rely on the Responsible Owner
    Exception to forfeiture, he failed to consider the evidence as a whole
    regarding the reasonableness of Rogers conduct in relation to the Property and
    his sons activities when addressing relief from forfeiture under the Interests
    of Justice Exception.

[96]

I
    agree that Rogers conduct, by itself, does not meet the threshold articulated
    in
Darlington
for discretionary

relief from forfeiture under
    the Interests of Justice Exception.  But that is not the end of the matter.  Assuming,
    as the application judge held, that the Responsible Owner Exception did not
    apply, the reasonableness of Rogers conduct in relation to the Property and
    his sons unlawful activities remained a critical, separate consideration in
    the determination whether discretionary relief from forfeiture should be
    granted under the Interests of Justice Exception to forfeiture.

[97]

It
    is not axiomatic that because a property owners conduct does not meet the
    statutory requirements of the Responsible Owner Exception to forfeiture, his or
    her conduct is also unreasonable for the purposes of the Interests of Justice
    exception.  This may, but need not, be so.  The requisite inquiries under these
    exceptions are different and discrete.

[98]

Consider
    that, in this case, on the application judges unchallenged findings, Roger was
    entirely innocent of any involvement in and derived no benefit from his sons
    unlawful activities.  As the application judge found, there was no suggestion
    that Roger was complicit in, or profited from, Freds unlawful activities.

[99]

Furthermore,
    contrary to the AGOs contention at the forfeiture hearing, the application
    judge accepted that the Property was acquired for a legitimate purpose, that
    Roger was the sole and exclusive beneficiary of it, and that Roger rented the
    Property to his son  deducting the rental payments from his sons salary  for
    legitimate reasons connected with his sons lawful employment by Parker
    Brothers.  There was simply no evidence that Roger sought to facilitate,
    encourage or sanction Freds unlawful activities.  To the contrary, the
    evidence established that Roger furnished the Property to Fred to provide him,
    as well as his grandchild and his sons girlfriend, with a place to live.

[100]

Importantly,
    there was also no evidence that Roger turned a blind eye to his sons drug
    problems.  Indeed, there was uncontradicted evidence to the contrary.  The
    record reveals that Roger attempted, for almost 25 years, to assist his son in
    overcoming his serious and long-standing addiction to drugs.  The evidence
    indicates that Roger was steadfast in his efforts to support Freds repeated
    attempts at rehabilitation, by his own account devoting hundreds of hours and
    expending thousands of dollars on these efforts.  Roger was not a compliant or
    uninvolved father and property owner.  Further, there is no evidence that he
    knowingly countenanced the criminal activities that flowed from Freds drug
    addiction.  The application judges reasons make no mention of these critical
    contextual factors.

[101]

Finally, it was
    open to the application judge to reject Rogers evidence of his efforts to
    detect any drug-related activities by his son at the Property.  However, both
    Fred and his sister gave evidence confirming diligent monitoring activities by
    their father at the Property.  The application judge made no mention of their
    evidence on this important issue in his reasons.

(d)

Conclusion on Interests of Justice Exception

[102]

In all the
    circumstances, I conclude that the three factors discussed above, in
    combination, engage the Interests of Justice Exception and justify this courts
    exercise of its discretion under s. 8(1) of the
CRA
to refuse
    forfeiture.

(2)

Responsible Owner Exception to Forfeiture

[103]

Since I am
    persuaded that it would clearly not be in the interests of justice to order forfeiture
    of the Property in this case, I would deny forfeiture on the basis of the s.
    8(1) Interests of Justice Exception to forfeiture.  Accordingly, I need not
    address the respondents argument that forfeiture should also be denied on the
    basis of the Responsible Owner Exception to forfeiture.

F.

Disposition

[104]

For the reasons
    given, I would dismiss the appeal.  I would award the respondent its costs of
    the appeal, fixed in the amount of $10,000, inclusive of disbursements and
    H.S.T.

[105]

The costs of the
    forfeiture hearing have yet to be fixed.  In the circumstances, I would direct
    that the respondent file brief written submissions concerning the costs of that
    hearing with the Registrar of this court within 14 days from the release of
    these reasons.  The AGO may file its brief responding costs submissions within
    14 days thereafter.

Released:

JCM                                                E.A.
    Cronk J.A.

MAY 16 2014                          I agree J.C.
    MacPherson J.A.

I agree
    E.E. Gillese J.A.

[1]
The AGO also sought forfeiture of the vehicle in which Fred and his girlfriend
    were observed, on January 22, 2011, to be engaged in what the police concluded
    were drug transactions.  The vehicle was registered to Freds sister.
    Forfeiture of the vehicle was denied by the application judge.  That ruling is
    not at issue on this appeal.

[2]
Also reported as
Ontario (Attorney General) v. 1140 Aubin Road, Windsor and
    3142 Halpin Road, Windsor (In Rem)
.


COURT OF APPEAL FOR ONTARIO

CITATION: Ontario (Attorney General) v. 51 Taylor Avenue, 2014
    ONCA 396

DATE: 20140516

DOCKET: C56421

MacPherson, Cronk and Gillese JJ.A.

BETWEEN

Attorney General of Ontario

Applicant (Respondent)

and

51 Taylor Avenue, Chatham, Ontario (PIN:
    00550-1103(R))

Respondent (Appellant)

Craig Bryson, for the appellant

William J. Manuel and Dan Phelan, for the respondent

Heard: February 25, 2014

On appeal from the order of Justice Bruce G. Thomas of
    the Superior Court of Justice, dated November 27, 2012, with reasons reported
    at 2012 ONSC 6355.

MacPherson
    J.A.:

A.

INTRODUCTION

[1]

The appellant, 51 Taylor Avenue, Chatham, Ontario (51 Taylor or the Property)
    appeals from the forfeiture order of Thomas J. of the Superior Court of Justice
    dated November 27, 2012.  The order provides:

1. THIS COURT ORDERS that, pursuant to section 8(1) of the
Civil
    Remedies Act
, the subject property, 51 Taylor Avenue, Chatham, [PIN:
    00550-1103(R)], is forfeited to the Crown in Right of Ontario.

[2]

The appeal involves the interpretation of several sections of the
Civil
    Remedies Act
,
2001
, S.O. 2001, c. 28 (
CRA
), including
    the terms responsible owner and interests of justice in the context of possible
    exceptions to making a forfeiture order.

B.

FACTS

(1)

The parties and events

[3]

51 Taylor is a 12-unit residential apartment building in Chatham. The
    Property is owned by Marlowe and Patricia Van Dusen.  The Van Dusens also own a
    number of other properties in the Chatham area.

[4]

Marlowe purchased the Property on March 10, 1995 for $308,000.  There is
    currently no mortgage on the Property and its present value is estimated at
    about $400,000.

[5]

On May 1, 2002, Marlowe transferred the Property to his wife for two
    dollars and natural love and affection.  Marlowes evidence was that this was
    done for estate planning and income tax purposes.  In their evidence, both Van
    Dusens stated that Marlowe continued to be responsible for managing the Property.
     Marlowe asserted that his wife has a 50 per cent interest in the Property.

[6]

Between 1989 and 1995, before Marlowe purchased the Property, the police
    attended at 51 Taylor on only two recorded occasions.

[7]

Between March 10, 1995 and May 1, 2002, while Marlowe was the registered
    owner, there were 81 documented police occurrences.  Between May 1, 2002 and
    August 13, 2007, when the respondent Attorney General of Ontario (AGO)
    obtained a preservation order, there were 311 documented police occurrences.
    During the same period, 21 search warrants were executed at the Property,
    primarily at three apartments, resulting in 49 arrests, with 119 charges being
    laid.  Most of the arrests related to drug charges.

[8]

In contrast, two neighbouring properties that were similar multi-unit
    residential buildings had five and 12 police occurrences during the May 1, 2002
    to August 13, 2007 period.

[9]

On August 10, 2007, the AGO brought an application seeking forfeiture of
    51 Taylor.  In support of the application, the AGO filed affidavit evidence
    from property owners on Taylor Avenue.  They deposed that the Property has had
    a negative impact on neighbouring owners and residents.  They reported constant
    foot traffic on the Property, the continual presence of people who were
    slurring their speech and staggering and conducting what appeared to be drug
    transactions, incidents of vandalism and drug use, and threats, intimidation
    and violence.

(2)

The application judges decision

[10]

The
    application judge held that the Property was an instrument of unlawful
    activity pursuant to s. 7(1) and (2) of the
CRA
.  Indeed, he
    described the unlawful activity at the Property (mainly drug transactions) as
    permeat[ing] the entire building inside and out.

[11]

The
    application judge also held that Marlowe Van Dusen was not a responsible
    owner within the meaning of s. 7(1) and therefore could not avail himself of
    the forfeiture exception in s. 8(3) of the
CRA
.

[12]

Finally,
    the application judge held that the appellant had not established, under s. 8
    of the
CRA
, that it would clearly not be in the interests of justice
    to make a forfeiture order.

[13]

The
    appellant contests the application judges second and third findings.

C.

ISSUES

[14]

The
    appellant raises two issues on the appeal:

(1)

Did the application judge err by
    concluding that the Van Dusens were not responsible owners within the meaning
    of s. 7(1) of the
CRA
?

(2)

Did the application judge err by
    concluding that the appellant had not established that it was clearly not in
    the interests of justice to order forfeiture of the Property?

D.

Analysis

(1)

The responsible owner exception to forfeiture

[15]

The
    appellant challenges the application judges reasoning that the Van Dusens were
    not responsible owners on two bases.

[16]

First,
    the appellant contends that the legal owner of the Property was Patricia Van
    Dusen, Marlowes wife, and that the application judge failed to consider her
    interest in the Property and her conduct relating to the use of the Property.

[17]

I
    do not accept this submission.  In my view, the appellant is precluded from
    arguing on appeal that Patricia was
the
relevant responsible owner of
    the Property.  The appellants own evidence was that Patricia was a mere
    nominee owner and its counsel asserted that its a jointly held property
    This was done for tax planning purposes In Marlowe and Patricias mind, they
    own the property equally.  I also note that the appellant did not argue at the
    forfeiture hearing that forfeiture should be denied because of Patricias
    interest in the Property.  Instead, the appellant seeks to advance this
    argument for the first time on appeal.

[18]

Second,
    the appellant submits that the application judge erred in finding that Marlowe
    did not take sufficient steps to evict the tenants who were engaging in
    criminal activities.

[19]

I
    disagree.  The application judge expressly rejected Marlowes evidence that he
    did not know about the criminal activity taking place at the Property.  In my
    view, there was strong, even overwhelming, evidence to support this
    conclusion.  Given the volume of police occurrences at the Property and
    Marlowes role as property manager, it was impossible that he did not know of
    the extensive criminal activity at the Property.  Indeed, a police sergeant
    gave evidence that the police spoke to Marlowe after the execution of each of
    the 21 search warrants at the Property.

[20]

Despite
    being aware of the criminal activity taking place at the Property, Marlowe took
    no meaningful steps to evict the problematic tenants.  For example, he did not
    seek police assistance to evict any of the tenants.  Accordingly, it cannot be
    said that Marlowe did all that could reasonably be done, in the language of s.
    7 of the
CRA
, to prevent the property from being used to engage in
    unlawful activity.

(2)

The interests of justice exception to forfeiture

[21]

The
    appellant submits that the application judge erred by concluding that the
    appellant could not bring itself within the language of the forfeiture exception
    in s. 8(1) of the
CRA
, namely, that it would clearly not be in the
    interests of justice to make a forfeiture order.  In support of this position,
    the appellant points out that the owners, the Van Dusens, were not found to
    have committed any crime on the Property, that the Property is a multi-unit residence
    where the criminal activity took place in only some of the units, and that the Property
    is worth $400,000.

[22]

I
    do not accept this submission.  The application judge explicitly addressed this
    courts interpretation of the interests of justice exception to forfeiture
    under the
CRA
in the leading case,
Ontario (Attorney General) v.
    1140 Aubin Road, Windsor and 3142 Halpin Road, Windsor (In Rem) et al.
,
    2011 ONCA 363, 279 O.A.C. 268, including the relevant factors to consider in
    the context of the exception.  As relevant here, those factors were the
    connection between the property and the illegal activity, the reasonableness of
    the conduct of the party whose property is the subject of the forfeiture
    application, and the value of that partys interest in the property compared to
    the overall value of the property that is tainted by the unlawful activity.

[23]

The
    reality here is that the Van Dusens are the exclusive owners of a relatively
    small apartment building where several units were used for a substantial amount
    of criminal activity over many years.  In my view, the application judge was
    entitled to describe the unlawful activity as permeat[ing] the entire building
    inside and out and to conclude, as he did, that the community, armed with the
    same information available to me, would see this as a deserving forfeiture.

E.

Disposition

[24]

I
    would dismiss the appeal.  I would award the respondent its costs of the appeal
    fixed at $10,000, inclusive of disbursements and HST.

Released: May 16, 2014 (J.C.M.)

J.C. MacPherson J.A.

I agree. E.A. Cronk J.A.

I agree.
E.E.
    Gillese J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Petruzziello v. Albert, 2014 ONCA 393

DATE: 20140513

DOCKET: C56458

Gillese, van Rensburg and Hourigan JJ.A.

BETWEEN

Edmondo Petruzziello

Applicant (Respondent)

and

Viktoria Albert

Respondent (Appellant)

Enio Zeppieri and Gregory T.A. Gryguc, for the appellant

Steven S. Sands, for the respondent

Heard: May 9, 2014

On appeal from the order of Justice Jayne E. Hughes of
    the Superior Court of Justice, dated September 1, 2011.

ENDORSEMENT

[1]

Viktoria Albert (the appellant) and Edmondo Petruzziello (the
    respondent) entered into a cohabitation agreement (the Contract) dated
    April 25, 2006.  After their relationship ended, they entered into Minutes of
    Settlement on October 26, 2007 (the Minutes).

[2]

During the legal proceedings that ensued, the appellant called into
    question the validity of both documents.

[3]

By order dated September 1, 2011 (the Order), the Contract was
    declared invalid and unenforceable but the Minutes were declared to be valid
    and enforceable.  In the associated costs order dated May 23, 2013 (the Costs
    Order), the trial judge ordered that no costs, beyond the splitting of the
    funds held as security for costs, be paid by either party.

[4]

On appeal, the appellant contends that the trial judge erred in finding
    the Minutes to be valid and enforceable.

[5]

By way of cross-appeal, the respondent seeks leave to appeal the Costs Order.

[6]

For the reasons that follow, the appeal is dismissed and leave to appeal
    the Costs Order is refused.

BACKGROUND IN BRIEF

[7]

The parties were never married.  Though the length of their cohabitation
    was disputed, the trial judge accepted the appellants evidence that the
    parties had a continuous relationship spanning six years.  The parties have one
    child, born in 2002.

[8]

In September 2003, the appellants visa lapsed and she was denied return
    access to Canada following a European holiday.  The parties prepared an immigration
    application to Canada and, of necessity, lived in separate residences while the
    application was processed.  The sponsorship portion of the immigration
    application included a contractual obligation that the respondent would provide
    financial support to the appellant for a period of three years from the date that
    the appellant was granted landed immigrant status.

[9]

The parties separated on May 1, 2007.

[10]

The
    respondent began proceedings, seeking access to their child.  In her answer,
    the appellant claimed spousal support.

[11]

On
    October 26, 2007, a case conference on all issues took place.  As a result of
    meetings between counsel and the parties that took place at the court that day,
    the Minutes were executed.  Both parties were separately represented during
    this process.

[12]

The
    Minutes deal with spousal support on a final basis, but the other issues dividing
    the parties were dealt with on a temporary basis and adjourned for further
    consideration.

[13]

The
    Minutes were incorporated into a consent order that same day (i.e. October 26,
    2007).

[14]

In
    September 2008, the respondent moved to have his child support obligation
    reduced.  The appellant brought a cross-motion in which she raised the validity
    of the Contract and the Minutes.

[15]

The
    parties agreed to a bifurcation of the issues.  A trial to determine the
    validity of the Contract and the Minutes would proceed first.  Subject to the
    results of the first trial, the claim for spousal support would proceed
    thereafter.

[16]

This
    appeal follows the trial at the first stage of the bifurcated proceedings.

THE TRIAL DECISION

[17]

The
    trial judge set aside the Contract, pursuant to s. 56(4) of the
Family Law
    Act
.

[18]

In
    relation to s. 56(4)(a), the trial judge found that the respondents failure to
    disclose the details of the support obligations arising from the sponsorship
    agreement was a significant and material failure in disclosure.

[19]

The
    appellant also established that s. 56(4)(b) was engaged.  The trial judge also found
    that respondent made it impossible for the appellant to obtain meaningful independent
    legal advice at the time that she entered into the Contract and, therefore, that
    the appellant did not understand the nature or consequences of the Contract at
    that time.

[20]

Based
    on two further findings of the trial judge, s. 56(4)(c) was also engaged.
    First, the trial judge found that the respondent failed to negotiate in good
    faith by not disclosing everything relevant to the purpose of the Contract.  The
    trial judge found this non-disclosure was deliberate and intended to mislead
    the appellant and the lawyers involved in negotiating the Contract.  Second, the
    spousal support provisions in the Contract were such an extreme departure
    from the appellants statutory entitlement as to be unconscionable, in part
    because they obligated the appellant to be in full-time school as a condition
    of receiving any form of spousal support.

[21]

However,
    the trial judge found the Minutes to be valid and enforceable.  Relying on
Geropulos
    v. Geropoulos
(1982), 35 O.R. (2d) 763 (C.A.), she stated that as a
    general rule, settlements of pending litigation between counsel, acting within
    the scope of their retainer, will be upheld by the courts in order to maintain
    the integrity of the settlement process.  The trial judge found that in
    negotiating the Minutes, the appellants lawyer acted within the scope of his
    retainer and that he had the authority to settle the spousal support claim on a
    final basis.  She further found that the appellant accepted her lawyers
    advice.

[22]

In
    addition, the trial judge found that the appellant failed to meet the onus
    imposed on her by s. 56(4) of the
Family Law Act
.

[23]

In
    relation to s. 56(4)(a), the trial judge found that the appellant failed to pursue
    further disclosure from the respondent, despite having requested further
    disclosure in her case conference brief and despite having had the benefit of
    independent legal advice throughout the negotiations leading up to the
    Minutes.  She noted that nothing precludes a litigant from entering into a
    final and binding settlement where only partial financial disclosure has been
    made.  In any event, the trial judge found that the respondent had
    overestimated his income during the negotiation of the Minutes and, therefore,
    whatever shortcomings there were in respect of disclosure did not cause
    prejudice to the appellant.

[24]

The
    trial judge rejected the appellants claim that she failed to understand the
    nature and consequences of the Minutes, noting that she was free, following
    separation, to retain any lawyer that she wished.  The trial judge accepted the
    evidence of the appellants lawyer that he reviewed with the appellant, in
    detail, each provision of the Minutes and that the appellant understood the
    nature and consequences of the Minutes when she executed them.

[25]

Finally,
    the trial judge found that both parties had had independent legal advice, the
    Minutes reflected their genuine mutual desire to finalize their spousal support
    arrangements and there was no evidence of exploitation or material
    misinformation.  While the Minutes were not overly generous in the trial
    judges view, she did not find them to be unconscionable.  In reaching this
    conclusion, the trial judge adverted to certain payments that the respondent
    made to the appellant or third parties on her behalf.

[26]

As
    a consequence of these findings, the trial judge found that she was without
    jurisdiction to set aside the Minutes.

[27]

The
    trial judge ordered that no costs, beyond the splitting of the funds held as
    security for costs, be paid by either party.  She found that the respondent had
    not made any enforceable offers to settle since his lawyer did not sign the
    offers as required by Rule 18(4) of the
Family Law Rules
.  Further,
    she noted that success was divided because the Contact was set aside but the
    Minutes were found to be valid.  The trial judge also considered the other
    factors required by Rule 24(11) of the
Family Law Rules
, including
    that neither party acted unreasonably in the course of the proceeding.  She did
    note that neither party had been alert to the case law indicating that deference
    is owed where minutes of settlement have been negotiated between counsel,
    saying that because that matter was a significant issue in the trial, this
    omission may have prolonged the trial.

[28]

The
    trial judge also found that there were a number of other relevant matters that
    the court had to take into consideration in making a costs determination.
    First, she considered the financial condition of the parties after their
    relationship ended and their ability to pay a costs award.  She found that
    while the respondent continued to earn a substantial income, the appellant was
    unemployed and primarily responsible for their young child. Second, she found
    that the child would be adversely affected if a costs award were made against
    the appellant, as it would reduce her already limited resources.

THE APPEAL

[29]

The
    appellant argues that the trial judge erred in finding the Minutes to be valid
    and enforceable.  She says that like the Contract, the Minutes were
    unconscionable and that it was an error for the trial judge to have failed to
    allow the matter to proceed to the second step of the bifurcated process in
    which a full hearing about the parties finances may have illustrated that unconscionability.

[30]

We
    do not accept this submission.  We see no error in the decision below nor in
    the reasons for decision.

[31]

The
    trial judge correctly articulated and applied the legal principles that guide a
    court when considering the validity of a settlement agreement, such as the
Minutes
.
    One significant consideration, which the trial judge fully recognised, is the
    established policy that the courts are to encourage the settlement of disputes
    by recognizing the validity of settlements of pending litigation that parties
    freely and properly enter into, with the benefit of legal advice.

[32]

In
    the present case, the trial judge found that the appellants situation, when
    the Minutes were negotiated and executed, was materially different than when
    she executed the Contract.  It will be recalled that the Minutes were signed
    during the course of a case conference when both parties had separate,
    independent and experienced legal counsel.  On the facts as the trial judge
    found them, the appellants lawyer was acting within the scope of his retainer
    when he negotiated a final resolution of the spousal support issue.  Her lawyer
    prepared materials for the case conference, as well as her answer and claim in
    the proceedings.  The trial judge accepted the appellants lawyers evidence
    that he had discussed the risks and benefits of trying to set aside the spousal
    support provisions in the Contract.  The appellant heeded her lawyers advice,
    and agreed to the Minutes.

[33]

We
    see no merit in the submission that the Minutes should be held to be
    unconscionable pursuant to s. 56(4)(c).  The trial judge gave cogent, leally
    correct, reasons for finding that the appellant failed to discharge her burden
    in this regard and we adopt those reasons.

[34]

Accordingly,
    there is no basis for disturbing the trial judges determination that the
    Minutes are valid and enforceable.

THE CROSS-APPEAL

[35]

Leave
    to appeal a costs order will not be granted save in obvious cases where the
    party seeking leave convinces the court that there are strong grounds upon
    which the appellate court could find that the trial judge had erred in the
    exercise of his or her discretion:  see
Brad-Jay Investments Ltd. v.
    Szijjarto

(2006), 218 O.A.C. 315 (C.A.), at para. 21.  An appellate
    court should set aside a costs order only if the trial judge has made an error
    in principle or if the costs award is plainly wrong: see
Hamilton v. Open
    Window Bakery Ltd.
, [2004] 1 S.C.R. 303, at para. 27.

[36]

We
    see nothing in the costs decision below which rises to this high threshold and,
    accordingly, would not grant leave to appeal the Costs Order.

[37]

The
    trial judge correctly referred to the relevant factors to be considered in
    awarding costs under Rule 24(11), including the fact that success was divided, the
    issues were complex, the lawyers rates were appropriate and the time spent
    proper.  Further, the trial judge considered the means of the parties and
    concluded that it would not be in the childs best interest to make a large
    cost award.

[38]

A
    trial judge exercises discretion when awarding costs.  That exercise of
    discretion is entitled to considerable deference.  Though a party cannot use
    their limited financial circumstances as a shield against cost orders, the
    ability to pay when children are involved, is a relevant factor.

DISPOSITION

[39]

Accordingly,
    the appeal is dismissed and, leave to appeal the Costs Order having been
    refused, the cross-appeal is also dismissed, with costs to the respondent fixed
    at $5,000, all inclusive.

E.E. Gillese
    J.A.

K. van Rensburg J.A.

C.W. Hourigan J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Qaraan v.
    Qaraan, 2014 ONCA 401

DATE: 20140515

DOCKET: C56483

Doherty, Epstein and Benotto JJ.A.

BETWEEN

Amneh Qaraan

Applicant (Respondent)

and

Abdelaziz Qaraan (also known as Aziz Qaraan)

Respondent (Appellant)

Norman A. Pizzale, for the
    appellant

Monique Rae Bennett, for the
    respondent

Heard: May 12, 2014

On appeal from the order of
    Justice Victor Mitrow of the Superior Court of Justice, dated December 13,
    2012, with reasons reported at 2012 ONSC 6017, [2012] O.J. No. 5938.

ENDORSEMENT

[1]

The appellant appeals the trial judges findings that:

1.

Disallowed a deduction for property in Al Taibeh, Jordan owned at the
    date of marriage;

2.

Fixed the value of date of marriage investments at $75,000 instead of
    the $215,000 claimed by the appellant;

3.

Imputed income to the appellant for child support and made orders
    pursuant to the
Child Support Guidelines,
SOR//97-175 including an
    order for the oldest child, Fatima, who was born in 1992;

4.

Awarded the respondent spousal support.

[2]

For the reasons that follow, the appeal is dismissed.

BRIEF BACKGROUND

[3]

The parties were married on September 27, 1990, and separated on February
    28, 2007.  The parties have three children who were ages 20, 19 and 7 at the
    time of trial.

[4]

The appellants income was derived from ownership and rental of
    apartment buildings.  Some of these buildings were owned by the appellants
    corporation, however, all rental income from apartments owned by the
    corporation was treated as the appellants personal income.  Likewise, sales of
    apartments owned by the corporation were reported on the appellants personal
    income tax returns.

[5]

During the marriage, the respondent did not work outside of the home.

THE APPEAL

Date of Marriage Deductions:

[6]

Section 4(3) of the
Family Law Act
R.S.O. 1990, CHAPTER F. 3, provides
    that the onus of proving a deduction under the definition of net family
    property rests with the person claiming it.  The trial judge did not accept
    the appellants evidence with respect to either the property in Jordan or the
    value of the investments.  He allowed no deduction for the former and reduced
    the amount claimed for the latter.

[7]

The appellant testified that an approximate 28 percent interest in the
    Jordan property had been given to him by his grandmother prior to the date of
    marriage. He did not produce evidence to corroborate what percentage of the
    land was owned by him at the date of marriage and did not obtain a proper
    valuation of the property.  Absent documentation or corroboration, the trial
    judge held that the onus had not been discharged.

[8]

The appellants claim to a deduction of $215,000 for investments at the
    date of marriage was based on benefits received as a result of the death of his
    first wife, and to the appellants inheriting their joint investments. Again,
    the appellant did not produce documentation to support his claim.  However, the
    trial judge determined that his interest income could be used to substantiate
    the value of the investment.  The trial judge accepted the appellants evidence
    that he earned 13 percent interest on his investments in the year of marriage.
    Using the analysis provided by the appellant's accountant, the trial judge
    found, at para. 150, that this translates to a capital investment of
    $77,346.  The amount of $75,000 was allowed as a deduction.

[9]

At para. 146, the trial judge explains why he rejected the appellants
    testimony that the amount of the investment was larger than that awarded. Key
    reasons included: the trial judge did not accept the appellants evidence that
    he did not spend any of the amount received; most of the amounts received would
    have been invested for almost the entire year and there was no evidence that
    the appellant must have invested the money in a one year guaranteed
    certificate.

[10]

We
    agree with the trial judge that the appellant failed to discharge the onus
    required to obtain deductions claimed in his net family property.  The
    appellant did not provide sufficient documentation to justify these deductions.
    In these circumstances, the limited deduction allowed by the trial judge was
    appropriate.

Income for Child Support:

[11]

The
    trial judge imputed income to the appellant for several of the years after
    separation. The most significant amount in issue is the year 2007 when the
    trial judge found that the appellants income for child support purposes was
    1.3 million dollars. This raised two issues: the amount of income determined by
    the trial judge and whether using the table amount to calculate support was
    inappropriate.

[12]

The
    appellants line 150 income was $592,125.  The trial judge added to that figure
    the non-taxable capital gain received in the year.  Section 19(1) (h) of the
Child
    Support Guidelines
provides that these capital gains may be imputed as
    income.  The trial judge was correct to do so.

[13]

The
    appellant argues that the table amount of the
Guidelines
should not
    have been awarded on this income since the amount is too high. The trial judge
    addressed s. 4 of the
Guidelines
and found that, despite the high
    amount of the child support award, the table amount was not inappropriate in all
    the circumstances: see
Francis v. Baker
[1999] 3 S.C.R. 250. We see no
    reason to interfere.

[14]

With
    respect to the years 2010-2012 the trial judge imputed income to the appellant
    in the amount of $75,000 for 2010 and $100,000 for each of 2011 and 2012.  The
    appellant submits that, for each of these years, the income should be limited
    to his pension income of $40,000.  In rejecting this submission, the trial
    judge made specific findings that the appellants income tax returns for these
    years did not reflect his true income, that he was not living only on capital,
    and that he had not explained how he was covering his deficit. The
Guidelines
provide wide discretion to the trial judge to impute income as is appropriate
    in the circumstances.  It was open to the trial judge to make these findings.

[15]

The
    trial judge awarded child support for Fatima, having found that up until March
    1, 2012 she was a child of marriage because she was attending school.  This
    finding was open to him on the evidence.

Spousal Support:

[16]

The
    trial judge found that the respondent was entitled to spousal support on a
    compensatory basis and a non-compensatory basis.  The appellant argues that she
    should be entitled to neither.  She left the marriage with a significant
    equalization payment and has now remarried.

[17]

The
    trial judge concluded that compensatory support was warranted based on the
    respondents economic disadvantage as a result of childcare obligations but
    that the amount to which she was entitled was not large.  In dealing with
    non-compensatory support, the trial judge, focusing on the fact that the
    respondent not only remarried but also failed to disclose her new husbands
    financial circumstances, concluded that the spousal support award should
    primarily be based on her entitlement to limited compensatory support.

[18]

The
    trial judge summarized his assessment of the respondents entitlement to
    support at para. 369, as follows:

Given that the primary component of [the respondents] support
    entitlement is non-compensatory and, given [her] non-disclosure regarding her
    husbands income, financial circumstances and contribution to household
    expenses, I find that the support obligation should be reflective primarily of
    the compensatory portion of [her] spousal support entitlement

[19]

The
    trial judge then awarded the relatively modest amount of $500 per month for 2011
    and $400 per month for 2012.  These amounts were a mere fraction of the amounts
    suggested by the
Spousal Support Advisory Guidelines
and reflect a
    significant discount as a result of the issues raised by the appellant.

[20]

The
    determination of spousal support is highly individual and discretionary.  On
    the basis of the evidence and the trial judges analysis, we see no reason to
    interfere with the exercise of his discretion in this regard.

DISPOSITION

[21]

The
    appeal is dismissed with costs to the respondent fixed at $15,000 inclusive of
    all applicable taxes and interest.

Doherty
    J.A.

Gloria
    Epstein J.A.

M.L.
    Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Quintem Holdings Inc. v. McLennan, 2014 ONCA 387

DATE: 20140512

DOCKET: C57999

Gillese, Van Rensburg and Hourigan JJ.A.

BETWEEN

Quintem Holdings Inc., Ozz Holdings Inc., and
    Orchard Park Professional Business Corporation

Plaintiffs (Respondents)

and

Alec McLennan

Defendant (Appellant)

Alec McLennan, appearing in person

D. Schatzker, for the respondents

Heard: May 8, 2014

On appeal from the judgment of Justice Cory A. Gilmore of
    the Superior Court of Justice, dated October 15, 2013.

APPEAL BOOK ENDORSEMENT

[1]

On consent, matter to go as per the signed order.

[2]

We have been advised that no other agreements have been reached in
    respect of the property.


AVERTISSEMENT

Le président du comité qui entend cet
    appel ordonne que lordonnance suivante soit jointe au dossier :

Lordonnance limitant la publication
    dans cette instance, en vertu des paragraphes 486.4 (1), (2), (3) ou (4) ou en
    vertu des paragraphes 486.6 (1) ou (2) du
Code criminel
, est
    maintenue. Ces dispositions du
Code criminel
stipulent ce qui suit :

486.4(1) Sous réserve du paragraphe
    (2), le juge ou le juge de paix qui préside peut rendre une ordonnance
    interdisant de publier ou de diffuser de quelque façon que ce soit tout
    renseignement qui permettrait détablir lidentité dun plaignant ou dun
    témoin dans les procédures relatives à :

a) lune des infractions
    suivantes;

(i) une infraction prévue aux
    articles 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1,
    173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 ou 347,

(ii) une infraction prévue aux
    articles 144 (viol), 145 (tentative de viol), 149 (attentat à la pudeur dune
    personne de sexe féminin), 156 (attentat à la pudeur dune personne de sexe
    masculin) ou 245 (voies de fait ou attaque) ou au paragraphe 246(1) (voies de
    fait avec intention) du
Code criminel
, chapitre C-34 des Statuts
    révisés du Canada de 1970, dans leur version antérieure au 4 janvier 1983,

(iii) une infraction prévue aux
    paragraphes 146(1) (rapports sexuels avec une personne de sexe féminin âgée de
    moins de 14 ans) ou (2) (rapports sexuels avec une personne de sexe féminin
    âgée de 14 à 16 ans) ou aux articles 151 (séduction dune personne de sexe
    féminin âgée de 16 à 18 ans), 153 (rapports sexuels avec sa belle-fille), 155
    (sodomie ou bestialité), 157 (grossière indécence), 166 (père, mère ou tuteur
    qui cause le déflorement) ou 167 (maître de maison qui permet le déflorement)
    du
Code criminel
, chapitre C-34 des Statuts révisés du Canada de 1970,
    dans leur version antérieure au 1 er janvier 1988

b) deux infractions ou plus dans
    le cadre de la même procédure, dont lune est une infraction visée aux
    sous-alinéas a)(i) à (iii).

(2) Dans les procédures relatives à
    des infractions visées aux alinéas (1)a) ou b), le juge ou le juge de paix qui
    préside est tenu :

a) daviser dès que possible les
    témoins âgés de moins de dix-huit ans et le plaignant de leur droit de demander
    lordonnance;

b) de rendre lordonnance, si le
    poursuivant, le plaignant ou lun de ces témoins lui en fait la demande.

(3) Dans les procédures relatives à
    une infraction visée à larticle 163.1, le juge ou le juge de paix rend une
    ordonnance interdisant de publier ou de diffuser de quelque façon que ce soit
    tout renseignement qui permettrait détablir lidentité dun témoin âgé de
    moins de dix-huit ans ou dune personne faisant lobjet dune représentation,
    dun écrit ou dun enregistrement qui constitue de la pornographie juvénile au
    sens de cet article.

(4) Les ordonnances rendues en vertu
    du présent article ne sappliquent pas à la communication de renseignements
    dans le cours de ladministration de la justice si la communication ne vise pas
    à renseigner la collectivité. 2005, ch. 32, art. 15; 2005, ch. 43, al. 8(3)b).

486.6(1) Quiconque transgresse une
    ordonnance rendue conformément aux paragraphes 486.4(1), (2) ou (3) ou 486.5(1)
    ou (2) est coupable dune infraction punissable sur déclaration de culpabilité
    par procédure sommaire.

(2) Il est entendu que les
    ordonnances mentionnées au paragraphe (1) visent également linterdiction, dans
    les procédures pour transgression de ces ordonnances, de diffuser ou de publier
    de quelque façon que ce soit tout renseignement qui permettrait détablir
    lidentité de la victime, du témoin ou de la personne associée au système
    judiciaire que lordonnance vise à protéger. 2005, ch. 32, art. 15.

COUR DAPPEL DE LONTARIO

Référence
: R. c. Pagé, 2014 ONCA 412

DATE: 20140520

DOSSIER: C56321

Les juges Weiler, van Rensburg
    et Pardu

ENTRE

Sa Majesté La Reine

Intimée

et

David Pagé

Appelant

Marc Gauthier, pour lappelant

Philippe G. Cowle, pour lintimée

Date de laudience : le 14 mai 2014

Décision rendue séance tenante

Sur lappel de la condamnation prononcée
    le 29 juin 2012 par la juge Maria T. Linhares de Sousa de la Cour supérieure de
    justice.

INSCRIPTION

[1]

Lappelant, qui avait 21 ans au moment des
    infractions, a été déclaré coupable de trois crimes sexuels envers la
    plaignante, M.D., qui avait 15 ans. La déclaration de culpabilité reposait sur
    deux fondements indépendants :

(1)

lappelant avait eu des relations sexuelles avec
    une enfant âgée de moins de 16 ans, sans avoir pris toutes les mesures
    raisonnables pour sassurer de son âge; et

(2)

lappelant avait eu des rapports sexuels avec la
    plaignante sans quelle lui donne son consentement.

[2]

Nous sommes davis que la juge de première
    instance na pas commis derreur dans ses conclusions ni dans sa manière dutiliser
    la preuve de faits similaires.

[3]

Les arguments présentés ne suggèrent aucune
    erreur qui serait capable de remettre en question la détermination par la juge que
    lappelant navait pas pris toutes les mesures raisonnables pour sassurer de
    lâge de la plaignante. Lappel est donc rejeté.

« Karen
    M. Weiler j.c.a. »

« K.
    van Rensburg j.c.a. »

« G. Pardu j.c.a. »