The Minister of Justice applied for forfeiture of the Defendant’s vehicle after he sold the illicit drug Ketamine to an undercover police officer on three occasions.
On the first two occasions, Mr. Sykes was on foot when he sold the drugs to the officer. On the third occasion, the transaction took place through the driver’s side window of his vehicle. The Minister of Justice sought forfeiture of the vehicle on the grounds that it was an instrument of crime. The Defendant’s evidence was that the vehicle was not nor normally used for drug trafficking:
“The respondent’s evidence (which was to some extent supported by the constable’s evidence and was accepted by the reviewing judge) was that he normally sold drugs “on foot”. On the one occasion that he sold out of his car, he was on his way to work and was using the car for that purpose and only sold from the car because of convenience. The reviewing judge accepted this evidence, holding that the respondent did not use his vehicle in effecting sales except for the one occasion at issue.”
The Court of Queen’s Bench found that the vehicle in this case was incidental to the trafficking and therefore declined to order forfeiture. The Court of Appeal upheld this decision, stating that the trial judge retains the residual discretion to refuse to order forfeiture in circumstances such as these. This allows for a defence comparable to Section 6(1) of the British Columbia Civil Forfeiture Act, which provides relief for forfeiture which is “clearly not in the interests of justice.” Sykes confirms that a similar principle applies in Alberta, even though there is no analogous provision to Section 6(1) in that province’s Victims Restitution and Compensation Payment Act.
The Alberta Court of Appeal allowed the Crown’s appeal in part, however, quashing the Court of Queen’s Bench order for costs against the Crown, and stating that in circumstances where forfeiture is prevented by the trial judge’s residual discretion, as opposed to a specific defence articulated in the Act, the Defendant should not be entitled to costs.
Decided by the Alberta Court of Appeal on June 24, 2011.
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