CASH SEIZED WITHOUT CONVICTION IN MARIJUANA SMELL CASE

It began with a missing front licence plate in 2003 and ended at the
Supreme Court of Canada in April 2009. Because of the missing front
plate, police pulled over a vehicle and discovered a single occupant,
Robin Chatterjee. A police computer search showed Chatterjee was out
on bail and in violation of a court recognizance.

Police arrested Chatterjee for this violation and searched his
vehicle. The search resulted in the seizure of $29,020 in cash along
with several items associated with a grow op -- an exhaust fan, a
light ballast and a light socket. Unfortunately for Chatterjee, there
was a strong smell of marijuana on the cash and the other items,
although no marijuana was found either in the vehicle or on Chatterjee.

No drug charges were laid. No charges were laid regarding the money
or the grow op items, but the Ontario Attorney General applied for an
order forfeiting the seized money as proceeds of unlawful activity
and the grow op items as instruments of unlawful activity.

It shouldn't surprise anybody that property obtained through criminal
activity may be seized by the government and ordered to be forfeited.
What is surprising is the so-called proceeds of crime may be
forfeited even if there's been no conviction. Indeed, there needn't
be any criminal charges filed.

In Ontario, the government need only establish that the property was
probably "acquired, directly or indirectly, in whole or in part, as a
result of unlawful activity" and it is game over. This is the civil
standard of proof, namely proof on a balance of probabilities, rather
than the criminal standard of proof beyond a reasonable doubt.
Forfeiture laws have also been enacted in British Columbia, Alberta,
Saskatchewan, Manitoba, Quebec and Nova Scotia.

Last month the Supreme Court of Canada declared the Ontario
forfeiture legislation to be valid legislation. Chatterjee initially
challenged Ontario's forfeiture legislation as being contrary to the
Canadian Charter of Rights and Freedoms but he lost that battle
before a lower court. The Charter challenge was doomed to fail
because the Charter doesn't protect economic or property rights.

Before the Supreme Court he argued the legislation was beyond the
legislative power of a provincial government. The top court concluded
the provincial government does have the power to enact civil
forfeiture legislation under its property and civil rights
jurisdiction and this legislation does not fall under the federal
government's exclusive jurisdiction over criminal law.

It's all very cut and dried constitutional law with little thought
given to the merits or fairness of the legislation. The decision has
been attacked as allowing provinces to legislate criminal law
"through the back door," but really the point of the legislation is
not to create new crimes but to make crime unprofitable. That would
be a laudable goal but without protection for due process, the
legislation is flawed and can be applied to achieve unfair results.

Was it fair for Chatterjee to lose the $29,020? If the money was
indeed derived from criminal drug activity it should be forfeited.
After all, crime shouldn't pay.

But Chatterjee wasn't even charged with a criminal offence and there
was no firsthand evidence concerning the origin of the money. So
where's the criminal activity from which the cash was derived?

Absent any reasonable explanation, it is probably a safe assumption
that the money was derived from some criminal activity. After all,
who walks around or drives around with that kind of cash?

I know there's no law prohibiting anyone from possessing large sums
of cash, but still it's a lot of cash and remember it did smell of marijuana.

Surely, if there was a credible explanation for the cash it would
have been raised. But should we be deciding these important issues
based on inferences or probabilities? Isn't it funny how small,
seemingly insignificant things can make such a difference. But for
the missing front plate, Chatterjee wouldn't have been pulled over
and he wouldn't have become the subject of a forfeiture order.

It's like your mother told you, "take care of the small things and
the big things will take care of themselves."