Monday, May 16, 2011

This Week At The Ontario Court of Appeal: 11-05-13

Each week, Wise Law Blog reviews recent decisions from the Ontario Court of Appeal.

Runnalls (Re). Regarding the disposition of a 2010 review hearing of Mr. Runnalls, who was found not criminally responsible due to a mental disorder on a number of charges in 2004 and has since been detained at a psychiatric hospital. At his review hearing, Mr. Runnalls' detention was continued conditionally after the Ontario Review Board turned down his application for adjournment; Mr. Runnalls appealed without counsel. He had refused counsel at his hearing as well, and none had been appointed for him.

An amicus curiae appointed on Mr. Runnalls' behalf argued that the Ontario Review Board's failure to appoint counsel for Mr. Runnalls constituted cause to set aside the Board's disposition. The Criminal Code demands that where the interests of justice require it, the Board shall appoint counsel in circumstances such as Mr. Runnalls'. The Court noted that the language of the statute made appointment of counsel in these circumstances mandatory.

The Court, however, also felt that Mr. Runnalls' situation was not necessarily one where the interests of justice demanded he be represented by counsel. The Board had suggested to him that he have counsel; he declined. The Board had been aware that he had previously represented himself and further that prior to this hearing he had had private discussions with counsel about it. The Court therefore felt that the Board had sufficiently considered Mr. Runnalls' situation and whether the interests of justice demand they appoint him counsel.

Amicus curiae also suggested that the Board erred by not sufficiently explaining to Mr. Runnalls how the hearing would proceed. The Court agreed that the Board has the essential duty of making sure an unrepresented individual understands the process and was able to participate as is proper. However, despite the Board's failure to explain to Mr. Runnalls in detail as to how events would proceed, the Court found that this was not of import since the transcript demonstrated that Mr. Runnalls clearly understood his role in the process, and that the Board obviously anticipated this given his history of self-representation at such reviews.

Mr. Runnalls, meanwhile, appealed on the grounds that his continued detention was unreasonable. The Court dismissed this appeal as the Board's decision set out many reasons for continued detention, including his history of aggressive and violent behaviour, his likelihood of self-medication prompting further outbursts, and his refusal of counselling for substance abuse. Read-the-whole-case rating: 2.

Ontario (Attorney General) v. 8477 Darlington Crescent. An appeal on an application where the Attorney General successfully sought forfeiture of three residences, one of which was 8477 Darlington Crescent, on the basis that the residences contained large marijuana grow-ops - they unsuccessfully also attempted to get an order for forfeiture on a fourth property. The Attorney General appealed the order on the fourth property; the owners appealed the order on the three successfully seized properties. Additionally, one of the owners appealed on the basis that the Attorney General should have paid costs on the application and that the application judge refused to grant a costs order.

In respect of the three seized properties, the appellant owners challenged the application judge's finding that their properties were used for unlawful purposes (namely the cultivation of marijuana for large-scale commercial sale). The Court, however, felt that the application judge had not erred in establishing that the properties were "the proceeds of unlawful activity," as although there was no evidence that any of the owners had purchased the property with money derived from marijuana sale or other criminal activity, that the mortgages on the house that had been paid down over time were very likely paid down on a monthly basis from monies received from the sale of marijuana - and therefore the houses had become the proceeds of criminal activity. (One of the applicants claimed he had a job, but refused to produce evidence of that job or explain what that job was, and paid out over $600,000 in gambling debts to a Windsor casino from his income from this supposed job.)

The appellant owners also suggested that the Civil Remedies Act's requirement of proving on a balance of probabilities that properties were the proceeds of unlawful activity was contra s.7 of the Charter of Rights and Freedoms as it was inconsistent with the principles of fundamental justice and that the standard of proof beyond a reasonable doubt should apply. The Court flatly rejected this, stating that s.7 "does not protect economic interests." The Court also swiftly rejected appeals that onus on the appellant owners to prove their legitimate ownership was incorrect on the basis that the appellants had misread the CRA and that the Attorney General was not estopped from pursuing forfeiture due to the appellants' related crimina proceedings.

In regards to the Attorney General's appeal, the Court again dismissed the appeal. The fourth property, which the application judge refused to grant forfeiture, was owned by the former girlfriend of one of the other owners, who continued to rent the property to her boyfriend after they had broken up, and who claimed to have no idea of the marijuana grow-op taking place therein. Although the application judge granted that the rental income stemming from unlawful activity made the property the proceeds of unlawful activity, she also granted that the former girlfriend was the legitimate owner of the property and therefore exempt from forfeiture. She also stated that a forfeiture order in this instance would be contrary to the interests of justice.

The Court of Appeal upheld this ruling, but did not agree with it entirely. A "legitimate owner" under the CRA must not have acquired the property as a result of unlawful activity, must have been the owner of the property before unlawful activity occurred on it, and must have been deprived of possession or control of the property by means of the unlawful activity. The Court stated that although the former girlfriend satisfied the first two requirements, her breakup with her drug-dealing boyfriend did not satisfy the third and therefore she was not a legitimate owner.

However, they agreed with the trial judge that the interests of justice demanded that she not forfeit her property. Although the Court accepted that civil forfeiture need not be confused with criminal liability, it also stated that punitive orders - such as forfeiture - must be perceived by the public to be made against deserving individuals, and the application judge found - and the Attorney General did not contest - that the former girlfriend had no knowledge of or participation in the grow-op. (There was evidence that she was at least aware of it, but this part of the application judge's decision was not appealed.)

The Court concluded this argument as follows:
Directing forfeiture of the property of a person who had no involvement in, knowledge of, or responsibility for the relevant criminal activity would hardly seem to further the deterrence objective of the CRA. There is no need to deter the innocent and responsible property owner by seizing his or her property. Indeed, it could be argued that disregarding the property owner’s lack of involvement in or knowledge of the criminal activity when deciding the question of forfeiture could well undermine the deterrence goals of the CRA. If forfeiture falls indiscriminately on the innocent and the complicit, there may seem to be little value in avoiding involvement in criminal activity.
The Court also dismissed the former girlfriend's appeal on the costs order as it felt the Attorney General's appeal, despite being rejected, was of merit as the question of forfeiture had only arisen in her favour as a result of the relatively rare "interest of justice" exception. Read-the-whole-case rating: 3.

- Christopher Bird, Toronto
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