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9/1/2010
Canada: Court Faults Police Cash Grab
Ontario, Canada superior court justice slams provincial attorney general and police for unauthorized attempt to pocket $46,078.

Courthouse photo by Tom Flemming/Flickr
An Ontario, Canada judge in July faulted the Ontario Provincial Police (OPP) and Attorney General of Ontario for attempting to confiscate $46,078 contrary to the law. Officer Paul Barkley had pulled over a 2000 Mazda traveling on Highway 401 near Morrisburg just after midnight on October 16, 2009. Barkley had assumed the driver, Remus Petran, might have been drunk because he was driving below the speed limit. After speaking to Petran, who was sober, Barkley decided to search the vehicle.

In the Mazda's trunk, Barkley found a gym bag containing CDN $74,980. Petran explained that he worked in construction and was paid in cash. For this, Petran was arrested for possession of property obtained by crime and his car towed away. After police found no evidence of a crime, Petran was unconditionally released with his car and without any charges filed -- but police kept the cash.

"It was money associated with drug trafficking or some other profit-motivated unlawful activity and that, on the night of October 16, 2009, Remus Petran was acting as a courier engaged in profit-motivated criminal enterprise," OPP Detective Constable Richard Weekes said in a deposition.

An order to seize the money gave police three months to keep the money while criminal charges were investigated. That order expired in January, and no charges were ever laid. By April 16 the Canada Revenue Agency decided it was entitled to $28,901 in unpaid taxes on the funds. Weekes and the attorney general filed with the Ontario Superior Court to keep the remaining $46,078.46. Justice David M. Brown was not impressed with the request.

"First, I am troubled by the five month delay in bringing this motion," Brown wrote. "The Criminal Code creates a regime for the detention of seized property. The Civil Remedies Act establishes a civil regime to deal with property, including seized property, that is the proceeds of, or an instrument of, unlawful activity. These regimes enable prosecutors, peace officers or the Attorney General of Ontario to apply for the continued detention or the interlocutory preservation of seized property. However, they do not permit those government actors to detain seized property without some form of legal authorization."

When OPP applied to keep the money, it failed to inform the court that it gave away some of the cash to Canada Revenue. Brown scolded the police for acting without clear legal authority.

"Would Mr. Petran, as taxpayer, have enjoyed a basis to resist payment of a demand from the Canada Revenue Agency?" Brown asked. "One cannot tell because the materials are silent on the point. For one government agency to distribute to another property it did not own, without notice to the purported owner of the property or without the sanction of a court order, may strike those agencies as an efficient, uncluttered way in which to collect tax. But the Attorney General of Ontario should understand that such conduct, absent adequate explanatory evidence, will raise questions in the mind of a court about the propriety and legality of such conduct."

Despite not buying Petran's story, Brown found he had no choice but to dismiss the confiscation request with prejudice and order the reasons for this denial to be delivered to Petran.

The decision is available in a 40k PDF file at the source link below.

Source: PDF File Attorney General of Ontario v. CDN. $46,078.46 (Superior Court of Justice, Ontario, Canada, 7/5/2010)

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