The Civil Remedies Act – The New Proceeds of Crime Regime

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The Civil Remedies Act is a powerful tool that can be used by law enforcement to take monies and/or property that are suspected to be derived from crime. The legal community and police community calls this illicit money “proceeds of crime”.  A recent case has critics concerned that the Civil Remedies Act is too powerful.

“The Jason Paquette Case” decided January of 2014

The Facts

Close to midnight on September 10, 2012, Jason Paquette (“Paquette”) was observed by a North Bay Police Officer arguing with his girlfriend.  The officer tried to calm the situation down by asking if “everything was alright”.  Mr. Paquette cursed at the officer and swung his dog’s leash over his head while taunting the officer.  Not surprisingly – Mr. Paquette was tasered and arrested for assaulting the police officer.

The search of Paquette after his arrest led to the discovery of a significant amount of Canadian currency located in the pockets of Paquette’s jeans. The money found on Paquette was already separated into five bundles, four of which were held together by elastic bands and one by a hairband.  The bills were of various denominations.

Paquette was later released from custody after being charged with the provincial offence of public intoxication.

The Attorney General (“AG”) sought forfeiture of the monies seized from Paquette using the Civil Remedies Act (the “Act”).   The AG argued that the money was either proceeds of crime, to be used for crime, or both.

Expert Evidence

The AG filed an affidavit of a police officer that stated he had experience and training in drug investigations.  Paquette responded by filing his income tax records, pay records, and print outs of his bank information.  Both the police officer expert and Paquette were cross examined.

The AG relied on circumstantial inferences to establish its case.  The way the money was discovered, the criminal record of Paquette, Paquette’s refusal to assist police regarding the source of the money, and an inadequate explanation regarding the source and purpose of the seized money were all factors used by the AG to establish an inference that the money was tied to unlawful activity.

The Judge’s Finding

The AG was required to prove that the money was proceeds of unlawful activity or an instrument of unlawful activity.  Unlawful activity according to the Act is an act or omission that would be an offence in Canada, any province, or even outside of Canada if that act or omission would be an offence in Ontario.

The judge relied on the expert police officer evidence that money is bundled like Paquette’s cash to speed up drug transactions. The fact that Paquette had such a large amount of money with him late at night in North Bay’s downtown area led the judge to conclude an inference existed that the money was the proceeds or instrument of drug trafficking.

The judge also found Paquette’s criminal record was probative of the source or purpose of the monies being tied to drugs. Paquette’s record included dated convictions for theft, fraud, violence and two drug possession convictions entered in 2007.

In the civil remedies context the failure to co-operate can be used as a negative inference against the accused person with respect to the source of the funds. In the criminal context silence or failure to cooperate cannot be used against an accused.  In almost every criminal case, things will go better for an accused if they remain silent. In this case, the judge did not place much weight on Paquette failing to cooperate because of his negative history with North Bay police.

The judge rejected Paquette’s explanation for legitimately having the money by finding it was unlikely that the money was saved based on Paquette’s evidence about his income and expenses. Paquette’s evidence may have been inconsistent with tax filings and other documentation he provided to the Court.

What does this Case Mean?

This case has legal critics and commentators concerned.  The concern being rooted in the fact that Paquette was not found with drugs or caught doing anything drug-related when the police found the cash. The idea that police can just take your money and that the government can keep it is an unsettling idea for any person that believes in freedom and democracy.

The Civil Remedies Act does give the government an extreme amount of power.  The government can seize people’s money and property without proof beyond a reasonable doubt that they are guilty of a particular or specific crime.  The government just needs to establish it is “more likely than not” that the money or property is derived from unlawful activity or is to be used for unlawful activity.  The government does not even need to prove a specific crime occurred or is going to occur.

From the case you can conclude that garnering police attention is not a great idea, when you are:

  1. Out late at night;
  2. Have a criminal record for drugs;
  3. Holding thousands and thousands of dollars bundled in specific amounts; and
  4. You are not able to convincingly show where you got that money.

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