A man on trial for possessing proceeds of crime – nearly $67,000 in cash – may use some of that money, seized in Inuvik two years ago, to pay his lawyer, a judge has ruled.
The decision by NWT Supreme Court Chief Justice Louise Charbonneau, following the “unusual” application by the Edmonton man, who faces trial later this month, will set a precedent in the territory.
“To my knowledge, there are no reported decisions of this court dealing with this type of application,” Charbonneau said in Yellowknife on Tuesday.
Ali Omar, of Edmonton, was arrested in Inuvik on March 9, 2019 and charged with possession of property obtained by crime.
During a search of his hotel room, RCMP found about $66,800 in cash, drug paraphernalia, bear spray, and a knife. Police spread out the cash on a table for a photograph that accompanied an RCMP news release on the subject.
Omar’s trial, which heard some arguments in Inuvik related to evidence admissibility, is scheduled to resume for four days in Yellowknife on November 23.
Omar has had trouble securing stable employment and is still paying what he says was a cost of $5,000 to fly himself and lawyer Lonnie Allen from Edmonton to Inuvik and stay there. As a result, he applied to use some of the $66,800 to cover his legal fees.
Charbonneau noted the intent of laws related to the proceeds of crime is to ensure “crime does not pay.” However, referencing tangentially similar rulings by the Ontario and Canadian supreme courts, she said the accused’s presumption of innocence is paramount.
“While Parliament was clearly motivated by the desire to remove financial incentive from certain crimes, it also wanted to ensure that accused persons will have access to legal representation, and that the presumption of innocence will be protected in order to maintain a procedure that is fair to the accused,” she told Omar’s lawyer, who appeared by phone.
Crown prosecutor Brendan Green had argued Omar presented no supporting evidence – such as a lease, pay slips, bank statements, or other receipts – to demonstrate his financial situation.
After Charbonneau’s ruling, Green said he was concerned about the process of verifying the amounts to be claimed by Omar for payment to his lawyer.
“To be frank, I have not practised as a defence lawyer in this jurisdiction, but the amount cited in the application materials – of $39,500 for a [relatively straightforward] four-day hearing – seems quite high to me,” said Green, also appearing by phone to comply with Covid-19 public health protocols.
“The timing of the application is also such that I think we should be clear that the relief being provided should be prospective only, which is to say … the purpose of the order is not to assist in the payment of fees and expenses [already incurred].”
Charbonneau noted Omar made detailed claims of financial hardship in his sworn affidavit. She said the income he has and expenses he noted did not seem excessive. He also stated his pregnant wife is not able to work at this time.
Omar did not qualify for Legal Aid as he does have income.
Charbonneau noted Omar met all three requirements to satisfy the application: he has an interest in the money that was seized by police; no other person has a legal interest in it; and he has no other means or assets available to meet his reasonable legal expenses.
“Because of the presumption of innocence, those funds cannot be presumed at this stage to be the proceeds of crime. The opposite is true,” she said.
“In other words, the person is seeking access to his … own funds that have been seized by the state and are alleged, but not yet proven, to be the product of commercial crimes.”
The amount of the seized cash made available to Omar was, as is the law, decided behind closed doors immediately following Tuesday’s hearing.