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R. v. Bomberry, 2010 ONCA 542

[9] At approximately 3:45 a.m., [the deceased’s] car stopped at an intersection about five blocks away from his apartment. The vehicle was half on the road and half on the curb. [The deceased] was in the driver’s seat and had suffered a single stab wound to the chest. Expert evidence indicated he would have died rapidly from the injury. Expert evidence also indicated that he was killed while sitting in the driver’s seat, likely by an assailant sitting in the front passenger seat. There was some evidence to support the conclusion that [the deceased] had left his apartment in a hurry: he was still wearing a condom on his penis, his shirt was only partially buttoned and his underpants were on backwards.

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  1. David Cheifetz
    August 6th, 2010 at 4:30 pm

    Attorney General of Ontario v. CDN. $46,078.46 , 2010 ONSC 3819

    [30] 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 AGO 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. Does some statutory basis exist to justify such conduct? I cannot tell, again because the materials are silent on the point.

    [31] In her further written submissions counsel for the AGO argued that the police are a separate arm of the government from the AGO. Therefore, she contended, any conduct by the police with the seized property could not affect the remedy sought by the AGO under the CRA. I do not think that such a broad proposition can be teased from the language of sections 4(2) and 9(2) of the CRA. Under those sections a court must grant an interlocutory preservation order if it is satisfied that reasonable grounds exist to believe the property is the proceeds of, or an instrument of, unlawful activity “except where it would clearly not be in the interests of justice.” In my view, the phrase, “except where it would clearly not be in the interests of justice”, entitles the court on an interlocutory motion to review all events relating to the property following its seizure and initial detention. To limit the review of state conduct in respect of the property to that following the assumption of the matter by the Civil Remedies Office of the AGO could require a court to ignore prior unlawful conduct by a government actor regarding the property. That would constitute a very curious notion of “the interests of justice”.

    [34] In any event, those three cases concerned the hearing of the application for forfeiture by the AGO. The case before me involves an ex parte motion for an interlocutory preservation order. On such a motion the AGO, like any other litigant, must make full and fair disclosure to the court of all material facts and law relating to the subject-matter of the motion and the relief sought. Like any party moving ex parte the AGO must not only disclose the facts and law supporting his motion, but also identify and explain any weaknesses in the case – i.e. in effect put before the court arguments that the responding party might advance if he had been given notice of the motion. Such a requirement is standard fare on ex parte motions, such as those for certificates of pending litigation. The AGO should not operate under any lesser obligation on ex parte motions under sections 4 and 9 of the CRA.

    The CRA is the innocuously named Civil Remedies Act, 2001, S.O. 2001, c. 28, which, in substance, allows the Crown to obtain a court order that proceeds of unlawful activity be forfeited to it