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| John L. Hill |
Police seized over $1.2 million in cash from Breton’s property, mainly from a Rubbermaid tub buried beneath a garage floor, along with smaller amounts elsewhere in the garage and residence. Police had warrants looking for firearms, not drugs and drug paraphernalia.
Breton was charged with possession of proceeds of crime and related offences. At his criminal retrial, the evidence was excluded under s. 24(2) of the Charter, leading the Crown to call no evidence and the court to enter acquittals on all charges.
After the acquittal, the Crown pursued forfeiture of the seized cash under s. 490(9) of the Criminal Code, which permits forfeiture when seized property was possessed unlawfully and the lawful owner remains unknown. The main issue was whether the trial judge in the forfeiture hearing could determine that Breton unlawfully possessed the cash, despite his acquittal.
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The Ontario Court of Appeal dismissed Breton’s arguments that issue estoppel barred the Crown from asserting unlawful possession or barred the fresh s. 24(2) ruling (R. v. Breton, 2025 ONCA 781).
A central issue on appeal was whether issue estoppel allowed the Crown to raise the legality of Breton’s holding the cash, given that he had been acquitted at trial. It was held that even though Breton was acquitted, issue estoppel did not prevent the forfeiture judge from finding the cash was unlawfully possessed.
In making this finding, the court considered key case law:
In R. v. Mahalingan, 2008 SCC 63, it was held that issue estoppel applied only to issues that were necessarily decided in the accused’s favour in the earlier proceeding. An acquittal alone is insufficient. In R. v. Punko, 2012 SCC 39, the court held that if a verdict has multiple possible explanations, issue estoppel does not apply. In Grdic v. The Queen, [1985] 1 S.C.R. 810, it was decided that an acquittal is “equivalent to a finding of innocence,” but does not mean every factual issue was settled in the accused’s favour. Later courts have clarified that Grdic must not be read literally.
In Breton’s case, Breton was acquitted because the Crown called no evidence after the s. 24(2) exclusion, not because the court affirmatively found the cash was lawfully possessed. The offence of possession of proceeds of crime has multiple elements (e.g., possession, knowledge, unlawful origin). Failure to prove any one suffices for acquittal. Since no reasons were given (the Crown called no evidence), no specific factual issues were resolved, so none were estopped. The garage cash, having been excluded, was never in evidence at trial, so no factual findings about it could have been made. As a result, the forfeiture judge was free to determine whether the cash was unlawfully possessed.
The prior ruling excluding evidence under s. 24(2) in the criminal trial did not prevent the forfeiture judge from conducting a new s. 24(2) analysis. In R. v. Grant, 2009 SCC 32, it was held that s. 24(2) requires a contextual balancing of factors to decide whether admission would bring the administration of justice into disrepute. Additionally, in Vellone c. R., 2020 QCCA 665 (leave refused), it was determined that Charter evidence admissibility might vary between criminal and forfeiture proceedings because the stakes and societal interests differ.
In applying the case law, a ruling to exclude evidence at a criminal trial, where liberty is at stake, does not bind a judge in a non-criminal, property-based proceeding. Forfeiture uses the same Grant test but weighs public and private interests differently. The forfeiture judge concluded admission of the evidence would not bring the administration of justice into disrepute in this context.
The Appeal Court found no fault in the Charter s. 24(2) analysis. It was reasonable. The forfeiture judge’s s. 24(2) analysis was entitled to deference and contained no reversible error. The court considered these key points: (a) the seriousness of the Charter breach still weighed toward exclusion; (b) the impact on privacy rights also favoured exclusion; (c) the third Grant factor — the truth-seeking function — was strong: there was reliable, physical evidence crucial to determining lawful possession and a public interest in preventing the return of criminal proceeds. Balancing all factors, admission in this context was appropriate.
The forfeiture under s. 490(9) was upheld. Key findings supported a finding of unlawful possession: Breton admitted to possessing the cash. His fingerprints were on the packaging from the buried tub. The packaging, bundling, and denominations matched those typically seen with drug proceeds. Drugs and paraphernalia were also found in the garage. Breton had no reported income for years and large sums were hidden in an unusual manner.
As a result, the Crown proved beyond a reasonable doubt that cash found in and under the garage was unlawfully possessed. The $15,000 in the residence vents was returned due to reasonable doubt and with Crown consent.
Breton’s appeal was dismissed. The forfeiture of approximately $1.26 million in garage cash was upheld.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. His most recent book, Acts of Darkness (Durvile & UpRoute Books), was released July 1. Hill is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.
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