This case involved a truck which was used to transport chemicals to an apparent methamphetamine lab, together with $22,000 in cash found in the Defendant’s home.
The Court of Queen’s Bench issued a “restraint order,” allowing the Crown maintain possession of the truck and cash, pending a trial under Alberta’s Victims Restitution and Compensation Payment Act. The Defendant appealed from this order.
The Pazder decision is significant in that it laid out the standard of review that the Court of Appeal should employ in reviewing an order under the Victims Restitution and Compensation Payment Act, as follows:
“The interpretation of a statute is a question of law. The standard of review for questions of law is correctness. The legal standard is a question of law, but whether that standard has been met is a mixed question of fact and law reviewable for palpable and overriding error. The findings of fact of the trial judge, and inferences drawn from the facts, will only be reversed on appeal if they disclose palpable and overriding error…”
Based on this standard, the Court of Appeal dismissed Mr. Pazder’s appeal of the decision to issue a restraint order, stating that:
“In this case the appellant declined to file an affidavit denying that the property was associated with crime. He declined to provide any innocent explanation for the transportation of the solvents, and the presence of a large amount of cash in his home. He did not deny any involvement in, or knowledge of the criminal activities alleged. In the circumstances, he failed to meet the burden of proof on a balance of probabilities placed on him by the Act. While the Minister’s case was largely circumstantial, it was uncontradicted, and the chambers judge was entitled to order forfeiture of both the Silverado and the cash. The findings in question were findings of fact and are entitled to deference on appeal.”
Pazder clearly demonstrates that there is a significant onus on the Defendant to demonstrate that their case to resist forfeiture has merit, in order for them to resist a restraint order pending trial.
Decided by the Alberta Court of Appeal on June 14, 2010.
Click here for the full text of the decision.