The government gets to keep stacks of cash found by police on an Ontario man’s property — including $1.2 million buried in a tub under the floor of his garage — even though the owner was found not guilty of possessing the proceeds of crime and other charges.
After 16 years of fighting to get it back, Marcel Breton lost his legal appeal on Monday over his mysterious mounds of money.
A police discovery in 2009 of huge amounts of cash on a rural property surrounded by forest just outside of Thunder Bay was eye catching.
Stacks and bundles of money, mostly in $20 bills, was found hidden in various spots of a home and detached buildings on the property, but the centrepiece was the contents of a large Rubbermaid tub buried about 20 centimetres under the dirt floor of a detached garage.
It was stuffed with cash packaged in bundles of $5,000 and $10,000 each, court heard. Police seized $1,235,600.
The officers “were flabbergasted, to say the least,” an Ontario Provincial Police officer told local media at the time.
Breton, then 44 years old, was arrested and charged with drug offences and possession of property obtained by crime. An OPP news release sent Dec. 4, 2009, announced that officers found cocaine, ecstasy pills, marijuana and cannabis resin with an estimated street value of $22,000 — and lots of cash.
The case had a twisting path in court.
When police arrived at the the nearly seven-hectare property for the search, officers weren’t officially looking for cash or drugs. They had a warrant to search for a gun. They didn’t find a gun.
But they sure found money. Wads of cash were found in the heating vents, in a suitcase, in Breton’s pockets, in a toolbox, under a drawer, in a black bag, and in the buried, sealed tub. It took police 18 hours to count it, as some was mouldy, damp and sticking together, an officer said in court.
Fighting over the money soon began.
Before his trial, Breton applied to use the money to fund his legal defence.
“The currency seized is mine,” he told court in 2012. “I was the only one who was aware of its location in the garage. I have no other assets or means available for the purpose of paying my reasonable legal expenses.”
The Canada Revenue Agency also laid claim to the money, telling court Breton hadn’t filed tax returns from 2001 to 2009, but for one income statement for $14,796, and the money should be applied as outstanding taxes. The judge set aside both claims.
In pretrial motions, Breton complained to the judge that the court should reject the search warrant, but this was denied and the case went to trial in 2014 with Breton sitting without a lawyer.
He was convicted of several charges and sentenced to nine and a half years of incarceration.
The Ontario government sought a forfeiture order that year to keep items seized in the search — the cash, a tractor, a backhoe, a Camaro sports car, a boat, and other vehicles.
But Breton appealed his convictions. He argued the judge failed to provide adequate assistance to him as a self-represented accused. The Crown conceded he deserved a new trial and he again pleaded not guilty.
After delays in 2019 when he fired lawyers and in 2020 when the pandemic slowed court proceedings, his case was heard in 2021 and Breton’s complaints about the search warrant were heard again. This time there was a different outcome.
It was revealed that perhaps officers were not as flabbergasted as they made out. Before the search, a joint federal-provincial-municipal organized crime task force heard allegations from a confidential informant that Breton had a gun on the premises and, two years earlier, another informant alleged he was involved in the drug trade.
Judge F. Bruce Fitzpatrick of Ontario’s Superior Court of Justice said the property was large, buildings on it were big, and that a second person had ownership ties to the property, a man alleged to be a member of the Hells Angels Motorcycle Club.
Fitzpatrick said the police affidavit to obtain the search warrant did not consider the ownership issue, raising questions on the “actual possession of the different buildings that were sought to have been searched,” he ruled.
A residential search “is a significant intrusion of the state into a place where Canadians have a high reasonable expectation of privacy. That expectation is not a shield against criminal activity. It is however something that must be only carefully breached,” Fitzpatrick wrote.
“The police were not really searching for a gun on Dec, 1, 2009. They had a preconceived idea that Mr. Breton was a drug dealer. They were looking for drugs and proceeds of crime,” he wrote in that decision.
He found the search was “an impermissible degree of overreach on the part of the police” that violated Breton’s right against unreasonable search or seizure. That made items seized inadmissible at trial.
With the drugs and money off the table, prosecutors called no evidence at Breton’s re-trial, and he was found not guilty of all charges.
The provincial government, however, maintained it should still keep the cash, sparking another round of hearings.
Fitzpatrick said a different balancing of interest was in play at a forfeiture hearing than at a criminal trial where guilt or innocence are on the line, meaning the outcome can’t deprive someone of their liberty, only of property.
It didn’t change the wrongful nature of the Charter breaches, he wrote, but it changed the remedy. Breton has already benefited from the Charter remedy by having charges dropped. The forfeiture case heard evidence on the characteristics of the cash being consistent with drug trafficking and on the lack of alternative sources of Breton’s income.
This time, Fitzpatrick ruled that prosecutors had proven the cash found in the garage was the proceeds of crime and should be forfeited, although Breton could keep the $16,000 found in the house and in his pockets.
Breton appealed to the Ontario Court of Appeal. He argued his acquittal should preclude the judge from finding his money was unlawful.
The appeal court disagreed, finding the trial judge had ruled the money couldn’t be used as evidence at trial, but the money was never ruled to be lawfully obtained since it was no longer in evidence.
In other words, Breton was deemed innocent, not his money.
The court of appeal dismissed Breton’s appeal.
Breton could not be reached for comment and his lawyer did not respond to a request for comment prior to publication deadline.
• Email: ahumphreys@postmedia.com | X: AD_Humphreys
Our website is the place for the latest breaking news, exclusive scoops, longreads and provocative commentary. Please bookmark nationalpost.com and sign up for our newsletters here.
