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Constitutional law - Division of powers - Civil Remedies Act, S.O. 2001, c. 28 - Whether ss. 1 to 6 and ss. 16 to 17 of the Remedies for Organized Crime and Other Unlawful Activities Act, 2001, S.O. 2001, c. 28, are ultra vires the Province of Ontario on the ground that they relate to a subject matter which is within the exclusive jurisdiction of the Parliament of Canada under s. 91(27) of the Constitution Act, 1867?

The Appellant’s vehicle was stopped by police in March 2003 because it was missing a license plate. Following investigation, the Appellant was arrested for a minor offence which was ultimately not prosecuted. The police searched the vehicle incident to the arrest and discovered $29,020 in cash and various items which are commonly used in indoor marijuana grow operations. The money and equipment smelled strongly of marijuana, although no marijuana was seized. The Appellant was not charged with any drug-related offence because the police did not have sufficient grounds to do so. The Attorney General of Ontario brought an application in rem for forfeiture of the cash and chattels as proceeds and instruments of unlawful activity pursuant to the Civil Remedies Act, S.O. 2001, c. 28. In response, the Appellant brought a motion in which he challenged the constitutionality of the legislation as ultra vires the province and which was in violation of various provisions of the Charter. The Appellant’s motion was dismissed, and the Attorney General’s application for forfeiture was granted. The trial judge found that the pith and substance of the legislation was to disgorge financial gains obtained through unlawful activities in order to compensate both private and public victims of unlawful activities and to suppress the conditions that lead to unlawful activities by removing incentives. He found that while the legislation may have some criminal law purpose, the absence of either a prohibition or a penalty meant that the legislation could not be classified as criminal law. He concluded that the Act relates almost entirely to property and civil rights in the province under s. 92(13) of the Constitution Act, 1867. The Court of Appeal for Ontario substantially agreed with the analysis of the trial judge and dismissed the appeal.