A man from North Bay, Ont., cannot reclaim $10,000 in suspected drug money that police seized after they found it in several wads stuffed in his pockets, a judge has ruled.
Jason Paquette at various times told police the source of the money was none of their business, that it was to buy a car and that it was his savings, and explained he didn't keep it in the bank because he didn't want any of it taken for child support, the Ontario Superior Court judge wrote in his ruling.
"I am not persuaded by Paquette's explanation as to why he kept the money on his person," Judge M. Gregory Ellies wrote.
"There are many safer places to keep $10,000 in cash other than in your pants."
A police officer spotted Paquette and his girlfriend in a heated argument in downtown North Bay close to midnight on Sept. 10, 2012. When the officer approached and asked if everything was all right, Paquette swore, took his dog's leash off and swung it over his head, saying "Come get some," according to Ellies' decision earlier this month.
Paquette was arrested and later charged with public intoxication. When he was searched police found $10,000 in five bundles held together with elastic bands, the judge wrote.
The police seized the money and the Crown went to court for a forfeiture order, arguing it was either the proceeds of unlawful activity, an instrument of unlawful activity, or both.
There was no direct evidence that the money came from a drug transaction or was going to be used for one.
But the judge wrote that he was satisfied from the Crown's circumstantial evidence — including Paquette's two previous drug possession convictions and his failure to "adequately explain the source and purpose of the funds" — that the money was either to be used in a crime or was the proceeds of a crime.
The judge said he couldn't accept Paquette's evidence that the $10,000 cash was his savings. His tax returns showed that in the previous four years he earned between $10,000 and $26,000.
"It is unusual, if not highly unusual, for someone to be carrying $10,000 in cash in his pant pockets in downtown North Bay late at night," Ellies wrote.
"The presence of such a significant amount of money, found late at night on Paquette's person after he had been in a bar in downtown North Bay, bundled the way it was, is strong circumstantial evidence from which an inference can be made that the money in question is proceeds of drug trafficking, an instrument of drug trafficking, or both."
Some lawyers have raised concerns about the laws, including that no criminal charge or conviction is needed for a government forfeiture.
Lawyers for the British Columbia Civil Liberties Association were in court Monday in that province intervening in just such a case.
RCMP found marijuana plants in David Lloydsmith's home in 2007 and seized them. He was arrested but never charged and nearly four years after the search, the government brought a forfeiture application on his home, the BCCLA says.
Lloydsmith argued that his Charter right to be free from unreasonable search or seizure was violated and a trial judge agreed that issue should be dealt with first, before a full trial on the forfeiture, but the director of civil forfeiture has appealed.
The BCCLA intervened in the appeal to argue that the issue should be considered at the outset of the case. If it is not addressed until the end, the government would be "well-positioned to leverage settlements from defendants so that stage is never reached," the organization wrote to the court.
"This will not be an acceptable result for the reputation of the administration of justice — civil forfeitures and forfeiture settlements must not become a consolation prize for criminal investigations that are failed or aborted because they are marred by serious Charter infringements," the BCCLA argues.
These cases can be an "end run" around the criminal process, said BCCLA counsel Raji Mangat.
"We may see situations in which evidence that was obtained in violation of the charter may be used to effect a forfeiture of somebody's property," she said.
"We see that these proceedings do have the potential for inducing people into settling because they simply don't have the resources to fight it all the way through to the end of a trial."
Fighting the government on these cases can be hard for people to do, said tax lawyer Richard Yasny, as the Crown's burden of proof is different than in criminal prosecutions.
In provinces such as Ontario and British Columbia cases are decided on a "balance of probabilities," as in other civil cases, instead of the "beyond a reasonable doubt" standard required for criminal convictions.
"We may find that Canadian courts control these rules well enough if you can afford the cost of defending yourself," he said.
"But the powers seem much broader than most people would expect in Canada. Though I have faith in our police and justice system, if the police abuse these rules it may be very hard for people to protect themselves."