Professional Documents
Culture Documents
Cl-11-10-1234
THE QUEEN’S BENCH
Winnipeg Center
BETWEEN:
-and-
Daniel Grice
Graham Durrant-Taylor
File No. Cl-11-10-1234
THE QUEEN’S BENCH
Winnipeg Center
BETWEEN:
-and-
INDEX
Statement of Facts 3
PART I
4. such further and other documents as counsel may submit and this Honourable Court may
permit.
2
PART II
Statutes
Manitoba Criminal Property Forfeiture Act, CSM C306 [Plaintiff’s Brief. Excerpts Tab 1]
Cases
Ontario (Attorney General) v 746064 Township Road No 4; 2008 CarswellOnt 582 165 ACWS
R v Connolly, 275 DLR (4th) 609, 262 Nfld & PEIR 281, 216 CCC (3d) 306, 2007 CarswellNfld
16 [Tab 5]
Ontario (Attorney General) v McDougall, 2008 CarswellOnt 7790, [2008] OJ No 5209 (Ont SCJ
PART III
POINTS TO BE ARGUED
STATEMENT OF FACTS
1. Mrs X submits the following motion to receive a protection order to secure her interest in
piece of property located at 123 Mulberry Bay that the Director of the Criminal Property
Forfeiture Unit (the Director) is currently seeking to have forfeited. She also moves that
it is clearly in the interests of justice for the court to prevent forfeiture of the property, or
in lieu, dismiss the application until criminal allegations against her husband are
concluded.
2. Mrs X is a registered as a joint tenant in the home and land at 123 Mulberry Bay, having
purchased the home in 2000, and has resided at the house for over ten years.
3. Mrs X has an office in the house that is required for her employment as a marketing
4. Mrs X has not been charged with any criminally offence and the plaintiff has presented
no evidence that she was complicit in any of the alleged offences or was aware of their
existence.
5. Mrs X has been married to the accused for 15 years, verily believes his statement, and
has not had the benefit of hearing the viva voce evidence in court from the complainant
6. Mrs X has not witnessed any behavior between her husband and the children in the past
that would have given her grounds to suspect her property was potentially being used for
unlawful activities.
7. Mrs X’s financial situation and partial interest in a sale would make it difficult to purchase
8. Mrs X’s realtor has advised her that property availability in the area is limited.
9. The risk of flooding in the spring may prevent potential buyers from offering full value for
the property.
10. The Criminal Property Forfeiture Act relied upon by the Director expressly instructs
judges to issue protection orders for the interests of responsible third parties. The
(a) acquired the property or an interest in the property before notice of the
application under section 6 was filed against the property; and
(b) did all that he or she could reasonably have done in the circumstances
to prevent the property from being used to engage in unlawful activity.
11. Mrs X fully meets the requirements of subsection A. She obtained her interest in the
property around 10 years prior to when the application was filed. She retains that
12. Mrs X did everything under the circumstance that an ordinary person would have
requirements of subsection B.
13. There is no evidence that Mrs X would have known about any of the alleged activities as
she is out of town for legitimate business reasons every two weeks and she has no
reasonable grounds to suspect that any unlawful activity would or could happen in her
absence. She has been married to Mr X for 15 years and had no reason to suspect that
14. There is no evidence or reasonable grounds to establish that Mrs X ought to have known
about any alleged unlawful activity. Mrs X’s observation of Mr X and the children on his
soccer team show no reasonable grounds to raise suspicion that lawful activity was likely
or probable. It would be unreasonable to draw any inference from the fact that she knew
that her husband acted as a role model for children in his position as soccer coach and
reached out to them via modern networking technology such as Facebook. Many
children as well as adults today use Facebook for their exclusive means of
communicating and reminding each other of events. In Jacobi v Griffiths, the majority of
the Supreme Court recognized that mentoring between adults and children on its own
should not lead one to believe that an inference of unlawful actions necessarily arises
from it:
I do not accept that an enterprise that seeks to provide a positive role model
thereby encourages intimacy. Nor do I believe that “mentoring”, as such, puts
one on the slippery slope to sexual abuse.
15. Password protecting computers is commonplace for data security purposes and it would
be unreasonable to impose a legal duty for couples to have to investigate each other’s
computers. In absence of probable grounds, the courts should not draw any inference
about family members not accessing each other’s computers, not should it force couples
16. The Criminal Property Forfeiture Act allows the courts to prevent a forfeiture order made
under either 7(2) [preservation orders] of 14(1) [forfeiture orders] if the court finds that
17. A test to determine if forfeiture would clearly not be in the interest of justice was
discussed in Ontario (Attorney General) v 746064. Some of the factors the court
employment issues.
18. Mrs X contends that her circumstances sufficiently meet each of those requirements and
it is clearly not in the interests of justice to force her to leave her home and harm her
employment
8
19. Mrs X has lived in the property for 10 years, built equity in the house and utilizes the
house for her business. A forfeiture order would create a strong hardship on Mrs X and
require her to move out of her community and would create employment problems if she
loses her home office. This is supported by Mrs X testimony that available real estate in
the community is at a minimum and finding another residents with enough adequate
20. Further, Mrs X contents that even if her interest in the house is protected, forcing the
Connolly, the appellate court strongly chastised the crown for not giving the family
proper consideration in obtaining a forfeiture order. The court recognized the importance
R. v. Connolly, 275 DLR (4th) 609, 262 Nfld & PEIR 281, 216 CCC (3d) 306,
2007 CarswellNfld 16 (TAB 5)
21. As the alleged instrument of crime is a matrimonial home, allowing forfeiture would
conflict with provincial legislation designed to protect the entirety of a home for a
individual from the detrimental actions of their spouse. The Homestead Act of Manitoba
recognizes the special importance of a family home and is designed to provide any joint
interest in the home with a veto over any material action. Section 4 contains language
that prevents one party from disposing of the home without the other’s consent.
22. Other courts have recognized that when weighing the interest of justice, an element of
4, the court declined to issue a forfeiture order because of the impact it would have on
23. In the above mentioned case, the court also recognized that not too high of a threshold
should be used by the court in determining whether a civil forfeiture would not clearly be
in the interests of justice.
The choice of the superlative "clearest" suggests a very high standard. The use
of the adverb "clearly" in the Civil Remedies Act arguably connotes a lower
threshold.
PARAMOUNTCY
24. The court should consider if the federal doctrine of paramountcy is invoked when
criminal charges were filed against her husband and the property is a dwelling house.
Mrs X. does not admit the provincial law is intra vires, but if the court assumes it is, she
Statutes of the two levels of government regulating this subject matter will
therefore coexist insofar as they do not conflict. Where there is a conflict, the
federal legislation will prevail according to the paramountcy doctrine. In this
case, there is a conflict between both statutes.
25. Under the Criminal Code, section 490.1, the federal government may apply for forfeiture
for offence related property following a conviction. The federal legislation also
recognizes when the prosecution is conducted by the province, any proceeds from the
26. The federal government has intended to occupy the whole spectrum of forfeitures when
the alleged unlawful activity is an indictable offence. The federal legislation provides
explicit recognition to the impact on members of the immediate family when the property
place, federal statutes should take precedent and she should be entitled as an
immediate family member to the stronger federal languages intending to protect innocent
family members.
(4) Where all or part of the property that would otherwise be forfeited under
subsection 490.1(1) or 490.2(2) is a dwelling-house, when making a decision
under subsection (3), the court shall also consider
27. Mrs X contends that while criminal charges are outstanding, she should be entitled to the
federal statutes that require conviction and provide more explicit protection for the
principal residents of innocent parties. The provincial legislation is inoperable while the
criminal proceedings are in place. In the alternative, this court could also recognize that
it is also clearly in the interest of justice to apply the more explicit federal exemptions
protecting families or suspend forfeiture proceeds while criminal proceedings are running
28. In light of all the circumstances, Mrs X contends that it clearly is not in the interests of
justice to proceed with a civil forfeiture of the house as it will cause her harm and fails to
recognize both federal and provincial mandates to protect innocent family members from
7(2) Unless it would clearly not be in the interests of justice, the court must make an
order under subsection (1) if it is satisfied that there are reasonable grounds to believe that
the property is proceeds of unlawful activity or an instrument of unlawful activity.
7(3) An order under subsection (1) may be made on motion without notice for a period
not exceeding 30 days.
Forfeiture order
14(1) Subject to section 15, and unless it would clearly not be in the interests of justice,
the court must make an order forfeiting property to the government if it finds that the
property is proceeds of unlawful activity or an instrument of unlawful activity.
Protection order
Possible orders
15(2) Without limiting the generality of subsection (1), a protection order may
(a) sever or partition any interest in the property or require any interest in the property to
be sold or otherwise disposed of by any person;
(b) subject to subsection 14(3), provide that the government takes the property subject
to the interest of a person; or
(c) direct that the proceeds of the sale of the property be applied to any debt secured by
a prior registered interest in the property.
Exception
15(3) The court may refuse to issue a protection order if it considers that it would not be
in the interests of justice to do so.
S.M. 2008, c. 16, s. 14.
16(1) The following are entitled to a protection order in respect of property that is found
to be proceeds of unlawful activity or an instrument of unlawful activity:
(a) any of the following holders of a prior registered interest in the property:
(i) a bank, a credit union, or a trust or loan corporation with a business
authorization under Part XXIV of The Corporations Act,
(ii) an insurance company licensed under The Insurance Act,
2
Examples
17(3) For the purpose of clause (2)(b), a person can prevent property from being used to
engage in unlawful activity by actions such as
(a) promptly notifying appropriate law enforcement agencies whenever the person
knows or ought to know that the property has been or is likely to be used to engage in
unlawful activity; or
(b) refusing or withdrawing any permission that the person has authority to give and that
the person knows or ought to know has facilitated or is likely to facilitate the property’s
being used to engage in unlawful activity.
1
Definitions:
"homestead" means
(a) in the case of a residence in a city, town or village occupied by the owner and the owner's
spouse or common-law partner as their home, the residence and the land on which it is situated,
consisting of
(i) not more than six lots or, if the block is not subdivided into lots, one block, as shown
on a plan registered in a land titles office, and
(ii) not more than one acre, if the land is not described by registered plan,
(b) in the case of a residence outside a city, town or village occupied by the owner and the
owner's spouse or common-law partner as their home, the residence and the land on which it is
situated, consisting of not more than 320 acres or a half section, subject to the following
conditions:
(i) if the land exceeds 320 acres in the same section, the 320 acres shall be comprised
of the quarter section on which the residence is situated, together with such other lands
in that section as the owner or the owner's personal representative shall designate,
(ii) if the land is in more than one section, river lot or parish lot, the homestead shall be
comprised of the quarter section, river lot or parish lot on which the residence is situated,
together with the other lands in that section or adjacent to or across a road or highway
from the section, river lot or parish lot, but if the land so described exceeds 320 acres
the owner or the owner's personal representative shall designate 320 acres of the land
as the homestead including the quarter section, river lot or parish lot on which the
residence is situated;
(c) a unit and common interest within the meaning of The Condominium Act, occupied by the
owner and the owner's spouse or common-law partner as their home; (« propriété familiale »)
4 No owner shall, during his or her lifetime, make a disposition of his or her homestead
unless, subject to sections 2.1 and 2.2
(a) the owner's spouse or common-law partner consents in writing to the disposition;
(c) the owner's spouse or common-law partner has released all rights in the homestead
in favour of the owner under section 11;
(d) the owner's spouse or common-law partner has an estate or interest in the
homestead in addition to rights under this Act and, for the purpose of making a
disposition of the spouse's or common-law partner's estate or interest, is a party to the
disposition made by the owner and executes the disposition for that purpose; or
2
(e) the court has made an order dispensing with the consent of the owner's spouse or
common-law partner under section 10.
1
490.1 (1) Subject to sections 490.3 to 490.41, if a person is convicted of an indictable offence
under this Act or the Corruption of Foreign Public Officials Act and, on application of the
Attorney General, the court is satisfied, on a balance of probabilities, that any property is
offence-related property and that the offence was committed in relation to that property, the
court shall
(a) where the prosecution of the offence was commenced at the instance of the
government of a province and conducted by or on behalf of that government, order that
the property be forfeited to Her Majesty in right of that province and disposed of by the
Attorney General or Solicitor General of that province in accordance with the law; and
(b) in any other case, order that the property be forfeited to Her Majesty in right of
Canada and disposed of by the member of the Queen’s Privy Council for Canada that
may be designated for the purpose of this paragraph in accordance with the law.
(1.1) [Repealed, 2001, c. 41, s. 130]
(2) Subject to sections 490.3 to 490.41, if the evidence does not establish to the satisfaction of
the court that the indictable offence under this Act or the Corruption of Foreign Public Officials
Act of which a person has been convicted was committed in relation to property in respect of
which an order of forfeiture would otherwise be made under subsection (1) but the court is
satisfied, beyond a reasonable doubt, that the property is offence-related property, the court
may make an order of forfeiture under subsection (1) in relation to that property.
Property outside Canada
(2.1) An order may be issued under this section in respect of property situated outside Canada,
with any modifications that the circumstances require.
Appeal
(3) A person who has been convicted of an indictable offence under this Act or the Corruption of
Foreign Public Officials Act, or the Attorney General, may appeal to the court of appeal from an
order or a failure to make an order under subsection (1) as if the appeal were an appeal against
the sentence imposed on the person in respect of the offence.
1997, c. 23, s. 15; 2001, c. 32, s. 30, c. 41, ss. 18, 130; 2007, c. 13, s. 8.
490.2 (1) If an information has been laid in respect of an indictable offence under this Act or the
Corruption of Foreign Public Officials Act, the Attorney General may make an application to a
judge for an order of forfeiture under subsection (2).
Order of forfeiture of property
2
(2) Subject to sections 490.3 to 490.41, the judge to whom an application is made under
subsection (1) shall order that the property that is subject to the application be forfeited and
disposed of in accordance with subsection (4) if the judge is satisfied
(a) beyond a reasonable doubt that the property is offence-related property;
(b) that proceedings in respect of an indictable offence under this Act or the Corruption
of Foreign Public Officials Act in relation to the property were commenced; and
(c) that the accused charged with the offence has died or absconded.
Accused deemed absconded
(3) For the purpose of subsection (2), an accused is deemed to have absconded in connection
with the indictable offence if
(a) an information has been laid alleging the commission of the offence by the accused,
(b) a warrant for the arrest of the accused has been issued in relation to that information,
and
(c) reasonable attempts to arrest the accused under the warrant have been unsuccessful
during a period of six months beginning on the day on which the warrant was issued,
and the accused is deemed to have so absconded on the last day of that six month
period.
Who may dispose of forfeited property
(a) where the prosecution of the offence was commenced at the instance of the
government of a province and conducted by or on behalf of that government, order that
the property be forfeited to Her Majesty in right of that province and disposed of by the
Attorney General or Solicitor General of that province in accordance with the law; and
(b) in any other case, order that the property be forfeited to Her Majesty in right of
Canada and disposed of by the member of the Queen’s Privy Council for Canada that
may be designated for the purpose of this paragraph in accordance with the law.
(4.1) An order may be issued under this section in respect of property situated outside Canada,
with any modifications that the circumstances require.
Definition of “judge”
(5) In this section and sections 490.5 and 490.8, “judge” means a judge as defined in section
552 or a judge of a superior court of criminal jurisdiction.
1997, c. 23, s. 15; 2001, c. 32, s. 31; 2007, c. 13, s. 9.
Voidable transfers
490.3 A court may, before ordering that offence-related property be forfeited under subsection
490.1(1) or 490.2(2), set aside any conveyance or transfer of the property that occurred after
the seizure of the property, or the making of a restraint order in respect of the property, unless
the conveyance or transfer was for valuable consideration to a person acting in good faith.
1997, c. 23, s. 15.
Notice
3
490.4 (1) Before making an order under subsection 490.1(1) or 490.2(2) in relation to any
property, a court shall require notice in accordance with subsection (2) to be given to, and may
hear, any person who, in the opinion of the court, appears to have a valid interest in the
property.
(a) be given or served in the manner that the court directs or that may be specified in the
rules of the court;
(b) be of any duration that the court considers reasonable or that may be specified in the
rules of the court; and
(c) set out the offence charged and a description of the property.
(3) A court may order that all or part of the property that would otherwise be forfeited under
subsection 490.1(1) or 490.2(2) be returned to a person — other than a person who was
charged with an indictable offence under this Act or the Corruption of Foreign Public Officials
Act or a person who acquired title to or a right of possession of the property from such a person
under circumstances that give rise to a reasonable inference that the title or right was
transferred for the purpose of avoiding the forfeiture of the property — if the court is satisfied
that the person is the lawful owner or is lawfully entitled to possession of all or part of that
property, and that the person appears innocent of any complicity in, or collusion in relation to,
the offence.
1997, c. 23, s. 15; 2001, c. 32, s. 32; 2007, c. 13, s. 10.
Notice
490.41 (1) If all or part of offence-related property that would otherwise be forfeited under
subsection 490.1(1) or 490.2(2) is a dwelling-house, before making an order of forfeiture, a
court shall require that notice in accordance with subsection (2) be given to, and may hear, any
person who resides in the dwelling-house and is a member of the immediate family of the
person charged with or convicted of the indictable offence under this Act or the Corruption of
Foreign Public Officials Act in relation to which the property would be forfeited.
(a) be given or served in the manner that the court directs or that may be specified in the
rules of the court;
(b) be of any duration that the court considers reasonable or that may be specified in the
rules of the court; and
(c) set out the offence charged and a description of the property.
Non-forfeiture of property
4
(3) Subject to an order made under subsection 490.4(3), if a court is satisfied that the impact of
an order of forfeiture made under subsection 490.1(1) or 490.2(2) would be disproportionate to
the nature and gravity of the offence, the circumstances surrounding the commission of the
offence and the criminal record, if any, of the person charged with or convicted of the offence,
as the case may be, it may decide not to order the forfeiture of the property or part of the
property and may revoke any restraint order made in respect of that property or part.
Factors in relation to dwelling-house
(4) Where all or part of the property that would otherwise be forfeited under subsection 490.1(1)
or 490.2(2) is a dwelling-house, when making a decision under subsection (3), the court shall
also consider
(a) the impact of an order of forfeiture on any member of the immediate family of the
person charged with or convicted of the offence, if the dwelling-house was the member’s
principal residence at the time the charge was laid and continues to be the member’s
principal residence; and
(b) whether the member referred to in paragraph (a) appears innocent of any complicity
in the offence or of any collusion in relation to the offence.
2001, c. 32, s. 33; 2007, c. 13, s. 11.