'DIRTY MONEY' ACT CHALLENGED IN CLASS ACTION

Lawsuit Says Law Violates The Charter

Two Ontario men have launched a $100-million class action against the
provincial government, demanding that a controversial anti-crime law be
struck down because it violates the Charter.

At the centre of the looming court battle is legislation that gives the
province the power to confiscate suspected dirty money from people who have
not been convicted of any crime. If a person wants his money back, he must
appear in civil court and convince a judge that the cash is not linked to
anything illegal.

The legislation is unconstitutional, the lawsuit claims, because it breaks
a basic tenet of Canadian criminal justice -- that a person is innocent
until proven guilty beyond a reasonable doubt.

"The Respondent has the obligation to prove a negative," said James F.
Diamond, the Toronto lawyer who filed the class action. "That person is put
on the spot to satisfy what we say is a reverse onus."

Before the Remedies for Organized Crime and Other Unlawful Activities Act
was adopted in 2002, authorities could not forfeit proceeds of crime until
they first secured a criminal conviction.

But under the new law, commonly known as the Civil Remedies Act, the
province can now forfeit alleged dirty money by bringing the case to civil
court, where the burden of proof is much lower than in criminal proceedings.

The Crown has only to prove on a balance of probabilities -- not beyond a
reasonable doubt -- that the cash is indeed linked to crime. "Everything
you've learned in law school goes out the door," said Vincenzo Rondinelli,
an adjunct professor at York University's Osgoode Hall law school.

One of the plaintiffs in the lawsuit, Kam-Tim Tong, was a passenger in a
car that police pulled over in Nipigon during a R.I.D.E. program. When
officers opened the trunk, they found $78,000.

The Attorney-General applied under the Civil Remedies Act to forfeit the
money. Among the evidence were police affidavits that alleged Mr. Tong was
likely involved in drug trafficking because their was litter in the car,
minimal luggage and a cellphone.

Mr. Tong was not charged with a crime, but a civil court judge ruled that
on a balance of probabilities, the money was likely linked to drugs and
ordered the cash forfeited to the province.

The other plaintiff, Robin Chatterjee, was pulled over in Thornhill for
allegedly driving without a licence plate. As he sat in the back of a
cruiser, officers searching his car found $29,020 in cash, a light ballast,
a light socket and an exhaust fan.

Mr. Chatterjee was never charged with a drug-related offence, but two
months later, government lawyers asked a civil court judge to forfeit the
cash, arguing it was the proceeds of drug trafficking because his car "had
a strong odour of marijuana" and the other items found in the trunk are
typically used to grow pot.

His lawyer, Mr. Diamond, responded by filing a constitutional challenge,
which was heard in October by a Newmarket judge. He argued that the law
should be struck down because it treads on the federal government's territory.

Filed this month in Ontario Superior Court, the class action takes the
constitutional challenge one step further by demanding that the government
disclose the names of every person brought to court under the new act.

Jeff Simser, legal director of the Ontario Attorney-General's Civil
Remedies unit, said the act does not place an unfair burden on individuals
to prove they are innocent.

"There is no reverse onus in our statute at all," he said. "The onus is
completely on the Attorney-General in all cases. We have to satisfy the
court, and if we don't satisfy the court, we don't win the case. It is that
simple.

"In those cases where it's $10,000 and it's dusted with all kinds of
cocaine and it's beside drug money and you're given seven inconsistent
stories, those are the ones when you start to say: 'Hey, maybe this isn't
really this guy's RRSP money that he's taking to the bank.' "