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:
“ 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.
 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.
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