Civil forfeiture for criminal proceeds properly determined on balance of probabilities

Ontario (Attorney General) v. 8477 Darlington Crescent, 2011 ONCA 363, released today on-line holds:

(ii)  Did the application judge err in holding that the AG was required to prove that the properties were the proceeds of unlawful activity on the balance of probabilities, rather than beyond a reasonable doubt?

[52]         Section 16 of the CRA specifically provides that findings of fact in proceedings under that Act "shall be made on the balance of probabilities".  That standard of proof reflects and is consistent with the civil nature of the forfeiture proceedings.

[53]         As I understand counsel's submission, he argues that a forfeiture order made under the CRA on a balance of probabilities standard violates s. 7 of the Charter in that it infringes an individual's liberty interest in a manner that is inconsistent with the principles of fundamental justice.  Counsel identifies the liberty interest as "a right to property".  I take him to identify the principle of fundamental justice at play as a requirement that the state meet the reasonable doubt standard when seeking an order that interferes with an interest protected by s. 7.

[54]         Section 7 of the Charter does not protect economic interests.  I am far from satisfied that the liberty right includes a "right to property".  I am, however, firmly convinced that the application of the balance of probabilities standard in a civil proceeding, even where s. 7 rights are implicated, is not inconsistent with the principles of fundamental justice.  To the contrary, the balance of probabilities standard is a basic tenet of our civil justice system:  see F.H. v. McDougall, [2008] 3 S.C.R. 41. 

[55]         Many civil proceedings in which the government and an individual are the protagonists involve the individual's s. 7 rights.  I am not aware of any case in which the court has held that if a litigant's constitutional rights are engaged in a civil proceeding, s. 7 demands the abandonment of the balance of probabilities standard in favour of a reasonable doubt requirement.  In my view, the balance of probabilities standard is consistent with the principles of fundamental justice as they apply in civil proceedings