Seizure of $2 million: Montreal man challenging Quebec forfeiture law

A Montreal man is challenging the constitutionality of Quebec’s civil forfeiture law after police seized more than $2 million in cash from his home, but never charged him with any crime.

Lawyers for André Levy argue a provision of the law, which presumes cash sums of $2,000 or more are the proceeds of illegal activity except in certain circumstances, violates the Canadian Charter of Rights and Freedoms and are seeking the return of the money.

“The legislative provision being contested, while it pursues a laudable goal, constitutes a draconian, disproportionate and irrational response,” Alexandre Bergevin and Edith Darbouze, wrote in a court filing. “Depriving a person of a substantial sum of money, representing a lifetime of work and saving, simply because a presumption exists, or because they cannot rebut a presumption established by law, opens the door to the worst abuses of power.”

Longueuil police searched the 75-year-old businessman’s Montreal home in January 2024 after receiving a harassment complaint from his former spouse, who told police he had guns and at least $2 million in cash in his home.

During that search, police found more than $2.1 million hidden behind a fake wall and seized it using a recently adopted provision that presumes “any cash sum of $2,000 or more the disposition of which is incompatible with the practices of financial institutions” is the proceeds of illegal activity.

Levy’s lawyers say that element of the law violates the sections of the Charter that guarantee basic fairness in judicial proceedings and protect against unreasonable search and seizure.

Levy, who has no criminal record, was never charged with any offence related to the money. His lawyers argue it was obtained legitimately.

Bergevin and Darbouze also argued in a mid-November legal filing the presumption provision infringes on the right to be considered innocent until proven guilty and allows the government to seize property without evidence.

“This is a serious constitutional violation that undermines the foundations of our rule of law and the separation of powers,” Bergevin and Darbouze wrote.

Lawyers for Quebec’s Attorney General argued in a September court filing that Levy had not demonstrated where the money came from, when it was acquired or how he acquired it legitimately.

Detective-sergeant Simon Desmarais of the Longueuil police, who led the investigation, said in a sworn statement the cash was found wrapped in elastic bands and, in some cases, black plastic. 

Those storage methods are similar “to practices observed in the criminal underworld,” Desmarais said and are “incompatible with the practices of financial institutions.” 

That, along with the presence of a money counting machine and the fact the money was hidden behind a fake wall, gave him reason to believe the money was the proceeds of crime, or related to illegal activities, he said.

Among the money found in Levy’s home were nine $20 bills that had been used by police a decade earlier to buy drugs from a criminal organization, Desmarais said, adding three of those bills had been used in the same drug purchase and were found together, suggesting they hadn’t been separated since that purchase. 

Between 2013 and 2022, Levy declared $1.2 million in income, Desmarais said, which means he can’t justify his possession of more than $2 million in cash.

Levy’s primary business, Nova Essentials, which imports and exports natural, organic and homeopathic products, reported taxable revenues of $4.4 million between 2014 and 2023, according to Desmarais statement. 

Levy’s lawyers have argued Longueuil police acted improperly in obtaining and carrying out the search warrant and $300,000 in cash disappeared from his home during the search.

Levy is seeking $960,000 in damages from the Service de police de l’agglomération de Longueuil and Desmarais, including the $300,000 he alleges went missing.

Levy was never criminally charged in connection with the harassment allegations, however, he did enter into a peace bond.

The presumption at the heart of the case was added to Quebec’s civil forfeiture law in 2024, as part of a bill titled “An Act to follow up on the Table Justice-Québec with a view to reducing processing times in criminal and penal matters and to make the administration of justice more efficient.”

The amendment appears to have drawn little notice at the time, with only the Barreau du Québec commenting on the changes when they were studied by a National Assembly committee in the spring of 2024.

In a submission, the Barreau said it was concerned that element of the bill was “excessive and disproportionate in relation to the illegal activity targeted” and the reference to “the practices of financial institutions” was vague and too open to interpretation. 

Frédéric Plamondon, a partner at Norton Rose Fulbright, who specializes in white collar criminal defence and investigations, said he expects the presumption provision will lead to the law being used more often. 

Similar laws exist in British Columbia and Manitoba, he said. While here in Quebec, there is a presumption related to a specific amount of cash, in other provinces the police will seize assets or cash when their value is disproportionate with a defendant’s means, legal income, or lifestyle.

Plamondon, who is not involved in the Levy case, said he expects the constitutionality of those provisions to be tested in court.

“In Quebec, I think the proportionality of the administrative seizures will also be scrutinized by the courts. I don’t know what will be the outcome, of course,” he said. “ When we look at the constitutional rights, the rights to property and privacy will be at the heart of any argument that the defendant will want to raise.”

A spokesperson for Quebec Attorney General Simon Jolin Barrette declined to comment as the case is before the courts.

jserebrin@postmedia.com

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