Alberta (Minister of Justice) v Willis, 2015 ABQB 328 – Examination for Discovery Does Not Breach Charter Right to Silence

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.

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