Category Archives: Civil Forfeiture in Alberta

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.
Click here for the full text of the decision.

This case involved a truck which was used to transport chemicals to an apparent methamphetamine lab, together with $22,000 in cash found in the Defendant’s home.

The Court of Queen’s Bench issued a “restraint order,” allowing the Crown maintain possession of the truck and cash, pending a trial under Alberta’s Victims Restitution and Compensation Payment Act. The Defendant appealed from this order.

The Pazder decision is significant in that it laid out the standard of review that the Court of Appeal should employ in reviewing an order under the Victims Restitution and Compensation Payment Act, as follows:

“The interpretation of a statute is a question of law. The standard of review for questions of law is correctness. The legal standard is a question of law, but whether that standard has been met is a mixed question of fact and law reviewable for palpable and overriding error. The findings of fact of the trial judge, and inferences drawn from the facts, will only be reversed on appeal if they disclose palpable and overriding error…”

Based on this standard, the Court of Appeal dismissed Mr. Pazder’s appeal of the decision to issue a restraint order, stating that:

“In this case the appellant declined to file an affidavit denying that the property was associated with crime. He declined to provide any innocent explanation for the transportation of the solvents, and the presence of a large amount of cash in his home. He did not deny any involvement in, or knowledge of the criminal activities alleged. In the circumstances, he failed to meet the burden of proof on a balance of probabilities placed on him by the Act. While the Minister’s case was largely circumstantial, it was uncontradicted, and the chambers judge was entitled to order forfeiture of both the Silverado and the cash. The findings in question were findings of fact and are entitled to deference on appeal.”

Pazder clearly demonstrates that there is a significant onus on the Defendant to demonstrate that their case to resist forfeiture has merit, in order for them to resist a restraint order pending trial.

Decided by the Alberta Court of Appeal on June 14, 2010.
Click here for the full text of the decision.

In the Clarke case, the Defendant Clinton Constantine Clarke was the sole registered owner of a 2003 GMC Yukon, and was caught by an undercover police officer using the vehicle to deal cocaine. On this basis, the vehicle was found to be an instrument of crime.

The Defendant, Noreen Clarke (Mr. Clarke’s mother) claimed to have an ownership interest in the vehicle to the tune of $12,000, which she demonstrated having inherited lawfully from her father. Furthermore, Ms. Clarke was not involved in any way with the trafficking activity.

Mr. Justice Burrows of the Alberta Court of Queen’s Bench ordered that the vehicle be sold and $12,000 be paid to Ms. Clarke. The remainder of the proceeds (i.e. Mr. Clarke’s interest in the vehicle) was ordered forfeit to the Crown.

Decided by the Alberta Court of Queen’s Bench on September 10, 2009.
Click here for the full text of the decision.

In the Chan case, the Alberta Court of Queen’s Bench ordered forfeiture of a 2003 Nissan Sentra which had been used in a drug trafficking operation. The Defendant had been charged under the Controlled Drugs and Substances Act and could not attend the civil forfeiture hearing because he was incarcerated at the time.

The court found that Mr. Chan had been served with the necessary ex parte documents and was aware of the proceedings against his vehicle. The fact that he could not attend the hearing in person was not a barrier to forfeiture.

This case demonstrates the ease with which the Crown can proceed with obtaining a forfeiture order, particularly when the Defendant is not available to participate in the hearing. It also demonstrates the prejudice that can caused to an accused person by the “double jeopardy” of both criminal and civil proceedings against them for the same alleged offence.

Decided by the Alberta Court of Queen’s Bench on May 21, 2009.
Click here for the full text of the decision.