Category Archives: Civil Forfeiture in Alberta

The Defendant, Krysta Elyse Willis, asserted an interest in a Jeep seized from her husband. Willis argued that her interest in the Jeep should be protected on the basis that she had not authorized or permitted her husband to use it for an illegal purpose.

The Minister put a number of questions to Mrs. Willis in the context of an examination for discovery. Willis refused to answer some of the questions and challenged the constitutionality of s. 52(2) of the Victims Restitution and Compensation Payment Act, which required her to submit to cross-examination on “any matter that concerns or otherwise touches on any event, business, affair, transaction or other subject that is related in any way to any matter in the legal action.”

Justice Schutz of the Alberta Court of Queen’s Bench concluded that the legislation did not offend Mrs. Willis’ right to be free from self-incrimination, noting that s. 6 of the Alberta Evidence Act prevents evidence elicited in examination for discovery from being used in

“Thus, where appropriate, any incriminating information or compelled evidence provided by Mrs. Willis, pursuant to the Impugned Provision, is protected from being used in any other proceeding by these same legislative and constitutional provisions that ensure protection to a witness from having his/her compelled evidence used to incriminate him/her in any proceedings.”

The Willis case therefore suggests that civil forfeiture defendants (or third-parties asserting an interest in seized property) do not have the same right to silence as those who are accused in criminal proceedings:

“This Court declines the invitation by Mrs. Willis to recognize a “new” fundamental principle that “those who seek to derogate the rights of another (including property rights) should marshal their own evidence and prove their own case.” First, and strictly speaking, this principle is not “new.” The norm in any adversarial system is that “he who asserts must prove,” and this legal rule bears no need for repetition or re-casting as a new fundamental principle. And as indicated earlier, the VRCPA, s 19.93 provides for the burden of proof and who bears onus in circumstances of restrained property and its potential disposal. Second, in a scenario where information and evidence is within the sole or exclusive control of a defendant or respondent, a fundamental principle framed in the manner proposed by Mrs. Willis would render truth seeking difficult and unworkable in the context of civil forfeiture proceedings.”

The practical effect of this ruling is that civil forfeiture defendants bear a certain onus to prove the “innocence” of their property, where an allegation of unlawful activity has been made.

Decided by the Alberta Court of Queen’s Bench on May 21, 2015.
Click here for the full text of the decision.

The Defendants, Dustin Frederick Paasche and Justin Alciade Robert, were “arrested and charged with weapons and drug trafficking offences as well as with possession of stolen property.” In the course of the investigation, approximately $3,600 in cash was seized and subject to a restraint order under Alberta’s civil forfeiture legislation, the Victims Restitution and Compensation Payment Act. Criminal charges were laid against both Defendants.

One of the Defendants, Justin Alciade Robert, contacted the Minister of Justice to request that the forfeiture proceeding against him be adjourned until the criminal charges were dealt with. The Minister consented to this adjournment in light of the Alberta Court of Queen’s Bench decision in Alberta (Justice and Attorney General) v. Lee, 2012 ABQB 136, which held that a Defendant should not be required to file potentially prejudicial evidence in a civil forfeiture proceeding while criminal charges remained pending.

The second Defendant, Dustin Frederick Paasche, did not take any action to oppose the civil forfeiture proceeding against him, yet Justice Burrows of the Alberta Court of Queen’s Bench concluded that the forfeiture proceeding against him should also be adjourned.

The Alberta Court of Appeal dismissed the Minister of Justice’s appeal of this decision, concluding that an adjournment order under the Victims Restitution and Compensation Payment Act is not subject to appeal. This decision confirms that a trial judge may, at his or her own initiative, adjourn civil forfeiture proceedings pending the outcome of criminal charges.

Decided by the Alberta Court of Appeal on September 11, 2013.
Click here for the full text of the decision.

The Defendant, Bruce James Cardinal, was arrested while in possession of $1,625 in cash along with thirteen dilaudid hydromorphone pills. Alberta’s Minister of Justice alleged that the money was proceeds of unlawful activity, and further that Cardinal’s 2005 Chrysler 300 was an instrument of unlawful activity within the meaning of the Victims Restitution and Compensation Payment Act.

Cardinal was criminally charged in connection with the pills found in his vehicle. Although convicted of simply possession of the drug, Cardinal was acquitted of the more serious possession for the purpose of trafficking charge.

At the property disposal hearing, Cardinal acknowledged being a drug user but denied the trafficking allegations. He claimed that the money was not proceeds of drug trafficking, but constituted repayment of two loans he had made, which he intended to use for rent and a damage deposit on an apartment.

Mr. Justice Wakeling of the Alberta Court of Queen’s Bench delivered lengthy reasons for disbelieving Cardinal’s story, and concluded by noting that the Plaintiff in a civil forfeiture proceeding has the benefit of a lesser standard of proof:

“[133] At a criminal trial, the Court must acquit the accused if the prosecution has not proved beyond a reasonable doubt the physical and mental components of the charged crime. This is a very high level of probability. The level of probability required in an in rem property disposal hearing under the Victims Restitution and Compensation Payment Act is considerably less. The Minister need only prove the facts in issue on a balance of probabilities. Victims Restitution and Compensation Payment Act, s. 51(d).

[134] Given the different standards applicable in the two proceedings, it is conceivable that on the same facts a criminal trial judge may conclude that the prosecution has not proved its case beyond a reasonable doubt and that a Court of Queen’s Bench judge conducting a property disposal hearing may conclude that the Minister had made his case on a balance of probabilities.”

On the basis of his factual conclusions, Justice Wakeling ordered full forfeiture of the 2005 Chrysler 300 and $1,625 in cash, despite Cardinal’s acquittal for on the criminal trafficking charge.

Decided by the Alberta Court of Queen’s Bench on July 17, 2013.
Click here for the full text of the decision.

The Attorney General of Alberta supported its application for forfeiture of a BMW, a Hyundai, and $1,590 in Canadian cash with the affidavit of Constable Aaron Sauve. Cst. Sauve claimed (largely on the basis of hearsay evidence from other police officers) that the two Defendants had been observed from a distance engaging in suspicious behaviour which he described as “consistent with a drug transaction.” The two vehicles were later searched and a quantity of cocaine was discovered, along with $1,590 in cash. Although both Defendants had been criminally charged, the Attorney General provided no evidence on the results of the charges.

Justice Russell Brown of the Alberta Queen’s Bench refused to make a forfeiture order on these facts, finding that Cst. Sauve’s evidence was insufficient to meet the Crown’s burden of proof in a civil forfeiture proceeding. First and foremost, Cst. Sauve had sought to introduce opinion evidence without being qualified as an expert, and secondly the behaviour that police claimed to have witnessed was not capable of supporting forfeiture in any event:

“[24] There are two difficulties in relying upon Constable Sauve’s experience to make out the necessary connection between the BMW and the Hyundai to illegal activity.  First, while Constable Sauve relies upon that experience (which prompts the Minister to ask this Court to rely upon it) in finding that connection, he does not describe his experience. He merely deposes to his status as a constable in the Drug and Gang Enforcement Unit (EDGE) for the Edmonton Police Service, then proceeds to describe EDGE activities.  He does not, however, depose to his length of service, whether on the Edmonton Police Service or on EDGE.  He does not depose to the depth of his experience.  In how many surveillance operations has he participated?  How many arrests?  How many searches and seizures?  In short, what is this “experience” to which he deposes?  He does not say.

[25] On a (relatively) minor but related point, Constable Sauve’s statements purporting to connect the BMW and the Hyundai to illegal activity are also unsatisfactory to meet the Minister’s onus of proving to a balance of probabilities that they were each instruments of illegal activity.  His belief, specifically, is that his observations are “consistent with a drug transaction” since, “based on his experience”, most drug transactions are carried out in a similar fashion with a quick exchange.  This statement falls well short of meeting the Minister’s burden.  Even if Constable Sauve’s experience had been demonstrably sufficient to allow him to make that statement, and even though the activity described may be “consistent with drug trafficking”, that is not the same thing as saying that it probably was drug trafficking.  Again, given that the respondents’ rights in property which they claim as theirs is at stake, the quality of the Minister’s evidence should be rigorously measured against his burden.”

On this basis, the court refused to make an order for forfeiture of either vehicle.

Decided by the Alberta Court of Queen’s Bench on May 23, 2013.
Click here for the full text of the decision.

In Alberta v. Wong, the Alberta Court of Queen’s Bench built upon its analysis in Petros and Squire as to the application of the Charter to civil forfeiture proceedings.

One of the Defendants, Yen Chen Huang, argued that the court should set aside a Restraint Order pertaining to a large sum of seized cash because the police did not have reasonable grounds to search the premises in question. The Ministry of Justice acknowledged that the Charter applied to civil forfeiture proceedings, but asserted that there should be a distinction made between civil and criminal proceedings in regard to the correct standard for exclusion of evidence.

The court rejected the Ministry of Justice’s argument in this regard, finding that when the Supreme Court of Canada adjusted the standard for exclusion of evidence in R. v. Grant, they placed an increased emphasis on the question of whether or not the administration of justice was brought into disrepute. This question, according to Justice Jones of the Alberta Court of Queen’s Bench, is equally relevant to criminal and civil proceedings:

[72] Restated, the fundamental question of whether admission of evidence could cause the administration of justice to be brought into disrepute need not be confined to circumstances in which an individual’s liberty is at stake.

[73] I accept Justice Sullivan’s analysis and conclude that application of (i) Charter considerations relating to the legality of evidence seizure and (ii) the remedial provisions of section 24(2), apply to civil matters with the same force as in criminal matters.

In the case at bar, however, the court found that the Defendants’ Charter rights had not been infringed and that they were therefore ineligible for exclusion of evidence under Section 24(2) of the Charter:

[120] In conclusion, I find that the ITO was not misleading, intentionally or otherwise. Consequently, Shiplett had reasonable and probable grounds for issuing the Original Warrant. Even the Amended ITO, excised of all allegedly Deficient Information as proposed by the Ms. Huang, would have provided Shiplett with a wealth of uncontroverted evidence detailing the involvement of Wong and Yun in the illegal drug trade and strongly suggesting the existence of evidence to be found in the Residence on July 2, 2009 that would implicate Yun in the possession of cocaine for the purpose of trafficking.

This decision demonstrates that the exclusion of evidence in any context is an uphill battle since the Supreme Court’s decision in Grant. However, it also stands for the proposition that exclusion of evidence should not be more difficult in the civil forfeiture context just because the subject of the action is property rather than the commission of a criminal offence. In this way, Alberta v. Wong will be a useful precedent for Defendants who are successful in having evidence excluded from a criminal trial, and are simultaneously facing a civil forfeiture action.

Decided by the Alberta Court of Queen’s Bench on July 31, 2012.
Click here for the full text of the decision.

The police pulled over the Defendant’s vehicle and came to the conclusion that his behavior was suspicious and that he might be in possession of illegal drugs. While he was in the back of a police car, they searched his vehicle and found a suitcase containing approximately $27,000 in cash.

There was insufficient evidence to charge Mr. Squire, but the police told him that he would be further detained and charged with possession of the proceeds of crime unless he signed a “Statement of Relinquishment,” acknowledging that the cash was not legally his and voluntarily forfeiting it to the Crown. Mr. Squire, who had had been advised of his Charter rights but had no had an opportunity to consult with counsel, signed the Statement of Relinquishment and was released without charge.

Mr. Squire later challenged the validity of the relinquishment, claiming that his Charter rights were infringed. Mr. Justice Sullivan of the Alberta Court of Queen’s Bench agreed, stating that Squire’s rights to be free from unreasonable search and seizure and arbitrary detention had been violated, and further that the police had failed to facilitate his request to contact legal counsel.

This case demonstrates that even if the Charter does not apply to civil legislation such as Alberta’s Victims Restitution and Compensation Payment Act, the police must still comply with Charter restriction when obtaining evidence. When evidence is obtained in breach of the Charter and the Charter breach in question brings the administration of justice into disrepute, the Crown cannot proceed to use evidence against the accused in either a criminal or a civil context.

Decided by the Alberta Court of Queen’s Bench on March 21, 2012.
Click here for the full text of the decision.

Alberta’s Minister of Justice applied for a restraint order in regard to two vehicles, a 2006 Infiniti FX and a 2005 Ford F-150, both owned by the Defendant, Samuel Chunghyun Lee, as well as $89,590 which had allegedly been seized from Mr. Lee.

The Minister alleged that Lee had been involved in cocaine trafficking, and based this allegation entirely on hearsay evidence from two police officers. The evidence tendered by the Minister, however, contained no information as to whether Lee had been criminally charged or as to the status of such charges.

Mr. Justice Burrows of the Alberta Court of Queen’s Bench refused to grant the requested restraint order, finding that he could not reach an educated conclusion on the matter in the absence of any information about the criminal process:

“[35] The affidavits here are completely silent as to whether Mr. Lee has been charged with any offence, though given the quantities of cocaine and currency allegedly found in his custody, it is difficult to conceive that he has not been charged. If he has not been, it would be relevant to the test the Court is instructed by the Act to apply in this application for the Court to know why not. The affidavits are also completely silent as to current status of any criminal proceedings against Mr. Lee if there are any.

[36] In my view, the Court should not exercise its discretion to grant a restraint order when it is totally blind as to whether or not doing so will require the Respondent to choose between attempting to satisfy the burden imposed by the Act or accepting the consequences of not doing so, on the one hand, and preserving his rights as an accused person in criminal proceedings, on the other.”

The Lee decision acts as a powerful authority for the Crown’s obligation to provide full disclosure in an ex parte application for a restraint order. In addition, it supports the proposition that civil forfeiture proceedings should be adjourned pending the resolution of criminal proceedings, so as to protect accused Defendants from having to give evidence that could prejudice their defence in the criminal context.

Decided by the Alberta Court of Queen’s Bench on February 29, 2012.
Click here for the full text of the decision.

In Chau, the Court of Appeal upheld an Alberta Court of Queen’s Bench decision, refusing to grant forfeiture of a Defendant’s house (which had been deemed an instrument of crime), on the basis that she had demonstrated on the balance of probabilities that she did not have knowledge of the illegal marijuana grow operation that existed there.

The appeals court described certain language in the trial judge’s reasons for judgement as “confusing,” but found that he had not erred in placing the onus on the Crown to prove on the balance of probabilities that the Defendant was aware of the illegal activity taking place on her property.

The Chau decision stands for the proposition that appeals courts are generally hesitant to interfere with findings of fact of a trial judge, and that this principle applies equally to civil forfeiture cases as it does to other areas of law.

Decided by the Alberta Court of Appeal on December 16, 2011.
Click here for the full text of the decision.

The Defendant, Daniel Lejam Petros, was under police surveillance when officers witnessed another individual (who was suspected to be purchasing drugs) enter Petros’ vehicle and walk away carrying something in his hand. Police officers continued following Petros and intercepted his vehicle a few minutes later.

A search of the Volkswagon Jetta yielded no drugs, but one of the officers answered Mr. Petros’ cell phone which had been continually ringing throughout the search. The caller asked to buy drugs and the officer (presumably impersonating Mr. Petros) agreed to facilitate a drug transaction. The caller arrived shortly thereafter, and was apprehended by police and questioned. Meanwhile, several small bags of cocaine were found stashed under the back seat of the police car where Mr. Petros had been detained. The police used this as grounds for a strip search, which yielded a further 13.7 grams of crack cocaine.

Based on Mr. Petros’ encounter with police, the Minister of Justice applied for forfeiture of the Volkswagon Jetta, alleging that it had been used as an instrument of illegal drug trafficking. Mr. Petros challenged the forfeiture on the grounds that his Charter rights had been infringed, and argued that the evidence against him should be excluded in the context of the civil forfeiture proceedings.

The Petros case is significant because the trial judge, Mr. Justice Sullivan, found that the Charter applies in the context of civil forfeiture proceedings:

To conclude my analysis on this question and give effect to the words of La Forest J. in McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229 at 261, that “the Charter is essentially an instrument for checking the powers of government over the individual”, the present circumstances must attract Charter scrutiny. Consequently, I find Charter protection and remedies pursuant to s. 24 apply in order to insulate the fairness of civil forfeiture proceedings under the Act.

This finding obliged the trial judge to engage in Charter analysis to determine whether or not the evidence was admissible. Ultimately, he found the initial search of the vehicle (based essentially on a hunch) to be a Charter breach capable of bringing the administration of justice into disrepute.

Justice Sullivan also ruled, however, that Mr. Petros had no reasonable expectation of privacy in the back of the police car, and that the cocaine which he apparently stashed there was admissible as evidence against him. He concluded by ruling that “the evidence of the physical drugs abandoned by Mr. Petros and the evidence of the drugs discovered during Mr. Petros’ strip search is sufficient for the Minister to succeed in this application.” Accordingly, Sullivan ordered full forfeiture of the Volkswagon Jetta.

All in all, this was an arguably self-contradictory ruling, given that no evidence at all would have been obtained but for the arbitrary detention of Mr. Petros in the first place. However, the finding that Charter analysis is a necessary consideration in civil forfeiture proceedings is a very positive precedent for future Defendants, which has already been used in cases such as Alberta (Minister of Justice and Attorney General) v. Squire, 2012 ABQB 194.

The Defendant Ross George Hilton had lent his 2004 Jeep Grand Cherokee to the Defendant Spencer Alexander Roblee, who had been observed by police using the vehicle in a drug trafficking operation.

The Minister of Justice applied for forfeiture of the vehicle pursuant to the Victims Restitution and Compensation Payment Act, on the grounds that it had been used in illegal activity. Mr. Hilton swore an affidavit stating that he had no knowledge of the illegal activity in question. In addition, there was no evidence to suggest that he was present at the time.

Mr. Justice Burrows of the Alberta Court of Queen’s Bench found that Mr. Hilton had, by way of his testimony, met the onus of demonstrating that he was not involved in the illegal activity. Since there was no evidence to the contrary, the vehicle was ordered returned to Mr. Hilton.

Decided by the Alberta Court of Queen’s Bench on August 16, 2011.
Click here for the full text of the decision.