Friday, October 30, 2015

Seizure of Sailboat Disallowed

In the recent decision of A.G. Ontario v. Kittiwake Sailboat, 2015 ONSC 6106 Justice Corbett of the Superior Court of Justice of Ontario disallowed a proposed seizure of a sailboat by the Attorney General of Ontario (“AG Ontario”) under the Civil Remedies Act (“CRA”).

The facts of this case are simple. On August 4, 2013, Valentin Chygyrynskyy was seen operating his sailboat in Toronto harbour. The sailboat struck a moored powerboat. Then Mr. Chygyrynskyy was observed falling out of his boat into the water. Mr. Chygrynskyy swam to shore with the aid of a flotation device thrown to him by his passenger. The police Marine Unit was dispatched and helped Mr. Chygyrynskyy from the water. Mr. Chygyrynskyy provided two breath samples.  His readings were 158 mgs and 147 mgs of alcohol per 100 ml of blood.  Mr. Chygyrynskyy was charged with offences related to impaired operation of a boat. Following these events, the AG Ontario obtained a preservation order and applied for forfeiture of Mr. Chygyrynskyy’s sailboat under the CRA.

The CRA is a “Robin Hood” law conceived as a way to take property from criminals and give the proceeds from its sale to victims. It is a procedure in a civil court and not criminal court. It doesn’t require a charge and conviction in a criminal proceeding. An application can simply be made to a judge in a civil proceeding where the onus of proof is on a balance of probabilities as opposed to the more rigorous standard of beyond a reasonable doubt.

The procedure has its supporters and its critics. The Toronto Star (*1) has reported that:

… an Oshawa couple had a portion of the value of their house seized even though drug possession charges against them were dropped. In Orillia, a landlord who rented rooms to homeless people could lose his property because the province contends that tenants paid rent with money made selling drugs.

Critics point out that because it’s easier to prove a case in civil court than in criminal court, the forfeiture process has become a parallel justice system for weak cases.

The CRA provides in Subsection 8(1) that:

In a proceeding commenced by the Attorney General, the Superior Court of Justice shall, subject to subsection (3) and except where it would clearly not be in the interests of justice, make an order forfeiting property that is in Ontario to the Crown in right of Ontario if the court finds that the property is an instrument of unlawful activity.

An “instrument of unlawful activity” is defined in s.7(1) of the CRA as:

… property that is likely to be used to engage in unlawful activity that, in turn, would be likely to or is intended to result in the acquisition of other property or in serious bodily harm to any person, and includes any property that is realized from the sale or disposition of such property….

“Unlawful activity” is defined in s.7(1) of the CRA to mean:

an act or omission that… (a) is an offence under an Act of  Canada, Ontario or another province or territory of Canada….

Subsection 7(2) provides:

For the purpose of the definition of “instrument of unlawful activity” in subsection (1), proof that property was used to engage in unlawful activity that, in turn, resulted in the acquisition of other property or in serious bodily harm to any person is proof, in the absence of evidence to the contrary, that the property is likely to be used to engage in unlawful activity that, in turn, would be likely to result in the acquisition of other property or in serious bodily harm to any person.

Justice Corbett pointed out that forfeiture is mandatory if the conditions of s. 7(1) are met, unless such an order “would clearly not be in the interests of justice.”  Thus forfeiture will be automatic in all but exceptional cases.

The judge found that the condition in s. 7(1) was met since impaired operation of a sailboat is an offence under the Criminal Code of Canada and therefore is an “unlawful activity” within the meaning of the CRA.

In this proceeding, the onus was on the AG Ontario to show that it was “likely” that the boat would be used for unlawful activity in the future. The court noted that Mr. Chygrynskyy has operated his boat once while impaired.  There was no evidence that he had done so before. The owner also testified that he intended to sell the sailboat since he had health problems. The judge accepted this evidence as credible. The judge found that the AG Ontario had not met its onus to show that it was “likely” that the sailboat would be used in unlawful activity in the future.

The judge also found that the events that gave rise to the court application by the AG Ontario did not cause serious bodily harm to any person.  Thus the AG Ontario did not have the benefit of the presumption in s. 7(2) of the CRA.

Justice Corbett found that the AG Ontario had not established that the prospective unlawful use of the sailboat would “likely” lead to serious bodily harm to a person stating:

There is some risk that it may.  But that is not the test.  The test is “likely”.  The Crown has not come close to establishing this proposition, which strikes me as rather remote. The Crown has not come close to establishing this proposition, which strikes me as rather remote.  Certainly there is no evidence before me that it is more likely than not that an impaired boater will cause serious bodily injury to a person.  The statistics indicate that the risk for motorists is much smaller than 50%, and as a matter of common sense I would suggest that the risks for persons on a leisure sailboat would be much lower still. The applicant has adduced evidence that forty per cent of fatal boating accidents involve drugs or alcohol.  With respect, that evidence is beside the point.  It may establish that there is elevated risk associated with impaired operation of a boat.  It does not establish that this risk is above 50%, the level required to make serious bodily harm a “likely” consequence.
…I appreciate that this mathematical analysis could be seen to trivialize the risks associated with impaired operation of cars and boats.  That is not the point here.  The probability of serious bodily harm is less than “likely”, but the consequences of that risk being realized are unacceptable.  Impaired driving, whether of cars or boats, is a serious social harm – it creates no benefit to anyone, and may cause disastrous loss to some.  But the seriousness of the consequences does not make those consequences more likely.

The judge commented that the CRA was aimed at organized crime and intentional crime undertaken for personal gain.  It was not aimed at leisure boating. The judge was fortified in this conclusion by the legislative debates when the CRA was enacted.  There was debate of drug trafficking and organized crime, but none of impaired driving. The judge commented on the forfeiture procedure stating:

Forfeiture under the CRA is a confiscation of private property by the state, without compensation.  Where proceeds of crime are confiscated, there is no countervailing interest to balance: criminals can rightly be deprived of the fruits of their criminal activity.  Where property is used for the purpose of committing criminal acts, there may be conflicting values at play.  Where the property is not owned lawfully in the first place, there is a strong argument for confiscation without compensation.  Where the property is owned and used legitimately by its owner, but also happens to be used in connection with a crime, the case for confiscation without compensation becomes more problematic.  The Legislature recognized these issues when it used the strong language it did to define “instruments of unlawful activity” as it did: the strict interpretation of this provision is consistent with the Legislature’s goals to make this powerful remedy available to fight organized crime, drug crimes, and other similar activities.

The owner of the sailboat had been unrepresented. The court had, however, appointed a lawyer to assist the owner and the court with some of the issues, an amicus curiae. The amicus curiae had raised an interesting issue as to whether the application of the CRA to a sailboat was constitutional, given the federal government’s exclusive jurisdiction over navigation and shipping.  The judge noted that it was not necessary for him to decide this constitutional issue to dispose of this case, and declined to do so. This issue was left to be decided in a future case.

The application by the AG Ontario to seize the vessel was dismissed. The sailboat was ordered to be returned to its owner.

The Toronto Star noted that the case had serious implications for those caught driving drunk and, had it been successful, could have led to more widespread seizure of cars and trucks. (*2)


(*2)  “This decision makes it a lot more challenging to seize property if it’s not property that’s inherently illegal or property that has a proven track record of being used illegally resulting in injury to others,” said Justin Safayeni, who was appointed by the court to oppose the Attorney General. “Certainly there’s been a trend to the expansive use of these powers, and this decision — at least for the time being — seems to dial it back.”


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