This case involved an application for the release of property confiscated as part of a decision by another court (criminal court). The plaintiff brought a claim arguing that the confiscation of property was incorrect as the property was not purchased with proceeds of the crime and that an exception in that context was provided for in the Money Laundering Act. The defense (Police and Attorney General) in turn responded that the property had not been confiscated under the money laundering act on which the claim was based, but rather under the criminal code. Importantly, the plaintiff had admitted the crime linked to the confiscation (living of the earnings of prostitution and running a brothel). In the context of the case, having taken note of the submissions of the Police and Attorney General which were clearly well-founded, the plaintiff raised a human rights argument namely under the ECHR and the Charter noting that if the Court were to accept the exceptions raised, this would be in violation of his right to property and would amount to too severe a punishment.

 

The key legal question determined by the court was the legal basis upon which the confiscation of property was made namely, whether it was made under the Money Laundering Act (Article 7) or under the Criminal Code Article 23). The exceptions and provisions on which the applicant relied are to be found in the Money Laundering Act, however, do not apply to the Criminal Code which provides for the confiscation of the corpus delicti as was the case in the current case. In view of this, the preliminary exceptions raised by the defendants in this case were accepted and the case fell through.

 

The application was rejected. In its consideration, the Court notes that once the basis for the procedure is lacking (in this case because the entire case was based on the wrong legal basis) and therefore could not never have succeeded, ‘the applicant cannot try to save his position by, at the last minute, raising constitutional questions. The court further considered that given that the application is based on a lacking premise, any further request cannot be considered, even if it did then make some in obiter comments about the rights and responsibilities of the plaintiff. In particular, the court noted that the plaintiff has a responsibility to abide by the law. More so, the Court noted that the prosecution in the original case had not gone as far as it could have, which diminished any argument that the punishment was excessive, and therefore in violation of the Charter.