Alberta (Justice and Attorney General) v. Echert, 2013 ABQB 314 – Police Officer’s Opinion Evidence Insufficient to Justify Forfeiture

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.

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