What is a responsible owner?

The Ontario Court of Appeal is expected to provide more clarity on the
scope of the Crown's forfeiture powers under the Civil Remedies Act in
an upcoming case involving claims that a renter used a private
residence for a marijuana grow operation.

The question of the steps a property owner must take in order to be
classified as a "responsible owner" under the act is also squarely
before the appeal court in Attorney General of Ontario v. 170
Glenville Road, King.

The hearing on June 2 is one of a small number of civil remedies cases
to reach the Court of Appeal since the Supreme Court of Canada upheld
the act in 2009.

A Toronto-area fish wholesaler is appealing a Superior Court ruling
that ordered the forfeiture of his Newmarket, Ont., property valued at
$425,000 after a large-scale marijuana grow-op was found inside the
residence.

York Regional Police obtained a search warrant in April 2006 after two
days of surveillance. It was later determined that $14,000 in hydro
had also been stolen. However, police never laid any charges and the
Crown didn't proceed with its forfeiture application until two years
after execution of the search warrant.

Wing Kwong Lee is arguing that the provincial Crown is using its
powers under the act as an "end run around the criminal standard of
proof" to seize the property.

In his forfeiture decision last year, Superior Court Justice Hugh
O'Connell found the residence was an "instrument of unlawful activity"
under the act. He described Lee's testimony that he rented the home to
someone named "Steven" who paid in cash and couldn't be located as
"fiction."

O'Connell concluded Lee was "directly involved" in the grow operation,
although this finding wasn't necessary to order forfeiture.

As well, Lee didn't meet the onus of showing he was a "responsible
owner" as an exception to the presumption of forfeiture, O'Connell
ruled.

The judge improperly used his credibility assessment to make findings
of criminal conduct, argues Lee's lawyer, Tom Curry, in written
arguments filed with the Court of Appeal. Lee co-operated with police,
made efforts to locate the tenant, and subsequently rented the
property, all of which was evidence he was a "responsible owner" under
the act, Curry wrote.

The Crown is seeking forfeiture after it "chose not to face the burden
of establishing Mr. Lee's involvement in the grow operation beyond a
reasonable doubt," something that "offends notions of fairness," said
Curry, a partner at Lenczner Slaght Royce Smith Griffin LLP.

In response, the Crown states that a judge under the act isn't
required to consider criminal involvement. "The act is a
non-conviction-based forfeiture regime," wrote Crown attorneys Robin
Basu and Leslie Zamojc. The inquiry for a court "relates to the
unlawful use of the property, not who was responsible for the unlawful
use," they noted.

Only when it is "clearly not in the interests of justice" does the act
allow for a court to decline to order forfeiture of property that was
an instrument of unlawful activity.

Exceptions "should not apply" based on "a consideration of competing
interests or notions of fairness," the Crowns argue. The "incredible
assertion" by Lee about a tenant named "Steven" isn't sufficient to
meet his burden of showing he was a "responsible owner" under the act,
they added.

In the written arguments, the Crowns stress several times that
compensation for victims is one of the "paramount justice interests"
of the act. Attorney General Chris Bentley proudly referred to the act
as "the Robin Hood legislation" in a media report earlier this year.

Data made public by the Ministry of the Attorney General in February
suggests that the largest beneficiaries of proceeds seized under the
act are police in Ontario. Almost $14 million in assets have been
forfeited since 2003. Of that total, $1.2 million went to victims of
unlawful activity.

Local police services received $5.7 million in grants over this period
for activities such as buying new surveillance equipment, interview
room renovations, and upgrading canine units.

York Regional Police, which investigated Lee, received a $300,000
grant in 2007 for its palm and fingerprint identification system.