Category Archives: Civil Forfeiture in Saskatchewan

Governed by Saskatchewan’s Seizure of Criminal Property Act, being Chapter S-46.001 of The Statutes of Saskatchewan, 2005

Saskatchewan (Seizure Of Criminal Property Act, Director) v Rapin, 2015 SKQB 37 – Third Party Creditors May Challenge Forfeiture of Seized Cash

Police seized $2,700 in cash, along with a quantity of cocaine, from an individual who was later convicted of drug trafficking. The Court had no difficulty in concluding that the $2,700 was proceeds of unlawful activity.

The Defendant failed to defend against the Director’s claim, but a law firm with a writ of execution against the Defendant appeared to assert a “prior registered interest in the property.” The Court noted that it was dealing with a case of first instance:

“Despite an extensive search, neither counsel on this application nor I could find any authority directly on point dealing with whether an interest under a writ of execution constitutes an interest in property under the Act. There is the equivalent of civil forfeiture legislation in a number of jurisdictions across Canada but it does not appear that this issue has previously arisen. That may be because those involved in unlawful activity are not generally ones incurring debts which are ultimately reduced to judgment and enforced by way of writ of execution.”

The Court ultimately concluded that the law firm was entitled to a “protection order” to safeguard its interest in the money:

“In the circumstances, it is my view that the law firm’s interest under the writ of execution is an interest in the property of Mr. Rapin and is entitled to a protection order pursuant to ss. 10(1) and 10(2) of the Act. It is not in the interests of justice to refuse a protection order as provided under s.8(3).”

The Rapin case therefore supports the proposition that third-party creditors may have standing to assert an interest in property that has been seized pursuant to civil forfeiture legislation.

Decided by the Saskatchewan Court of Queen’s Bench on February 6, 2015.
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Director under the Seizure of Criminal Property Act, 2009 v Peters, 2012 SKQB 348

Saskatchewan’s Director under the Seizure of Criminal Property Act applied for an indefinite preservation order of $45,360.00 in seized money that was suspected to be the proceeds of crime. The Director claimed a right to apply for indefinite ongoing seizure, pursuant to Queen’s Bench Rule 390, pending the resolution of the civil action for forfeiture of the seized cash.

The court expressed concern that the Seizure of Criminal Property Act itself only allows for interim preservation orders to be granted “for a period not exceeding 30 days,” and extended “for a further period not exceeding 30 days from the date the extension is granted.” Invoking Rule 390 would seem to run contrary to the spirit of the Director’s own Act, which provides for judicial review of seizure orders at 30-day intervals.

After receiving a Brief of Law from the Director, Zarzeczny J. of the Saskatchewan Court of Queen’s Bench ruled that the Director must follow his own Act in seeking ongoing preservation of seized property. The requirement for repeated review of interim preservation orders was obviously crafted to ensure that the Director acts quickly and diligently in bringing matters to trial. Zarzeczny’s reasons for judgement strongly suggest that this had not occurred in the Peters case, where the Director was seeking and indefinite preservation order but had taken no action to bring the forfeiture action to trial for some 15 months after the seizure of the money.

Zarzeczny J. concluded his reasons for judgement as follows:

“In the whole of the circumstances and the history of proceedings upon the current application before the court, I have determined that the provisions of s. 6 of the Act relating to Interim Preservation Orders should be applied and not the provisions of Rules 390 and 391 … These 30 day orders, and any extensions of them, should provide sufficient time and opportunity for the Director to make and proceed with the final application for forfeiture before the courts in a timely, expedient and cost-effective manner … In the result, I decline to make a long-term Preservation Order as applied for pursuant to Rules 390 and 391. The Director has the right to make further and other Interim Preservation Order applications as and if considered necessary.”

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

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Mihalyko (Re), 2012 SKCA 44

The Defendant, David Wayne Mihalyko, pled guilty to trafficking under the Controlled Drugs and Substances Act, after he attempted to sell two Oxycontin tablets to an undercover police officer for $60. The Defendant’s 1998 Chevrolet Blazer and his Samsung cell phone were seized by police at the time of his arrest, and the Crown sought forfeiture of these items under Saskatchewan’s Seizure of Criminal Property Act.

The Saskatchewan Court of Queen’s Bench ordered forfeiture of the cell phone, but found forfeiture of the vehicle would be disproportionate to the offence in question, and therefore “clearly not in the interests of justice,” pursuant to Section 7(1) of the Act.

The Saskatchewan Court of Appeal overturned the lower court’s decision, stating that the trial judge placed too much weight on proportionality in his analysis, and failed to adequately consider the need to compensate the Province for harms caused by drug trafficking. Furthermore, the appeals court found that the Defendant had not adequately demonstrated that he would receive hardship as a result of forfeiture of the vehicle. Mr. Mihalyko’s Chevrolet Blazer was therefore ordered forfeit to the Crown.

This case is a disturbing example of the significant potential for punitive effects in civil forfeiture law, even resulting from a seemingly minor or inconsequential offence. Mihalyko may have been a good opportunity to challenge the Saskatchewan law on the basis that it enabled punitive double jeopardy, but unfortunately, it seems that no constitutional challenge was mounted.

Decided by the Saskatchewan Court of Appeal on April 10, 2012.
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Anthony Kaytor (Re), 2012 SKQB 79

This involved an application by Saskatchewan’s Director Under The Seizure of Criminal Property Act, seeking forfeiture of a truck which had been used in a drug transaction valued at approximately $160.

Counsel for the Defendant argued that forfeiture in the circumstances was clearly not in the interests of justice because it was not proportionate to the offence, and because the funds to purchase the truck were advanced by the Defendant’s mother who had no involvement in the offence.

The Court of Queen’s Bench declined to order forfeiture at the time of the application, but stated that the vehicle would remain in the custody of the Crown, pending the outcome of the Mihalyko case, which was at the time before the Saskatchewan Court of Appeal. Given the eventual outcome of Mihalyko, however, it seems that Mr. Kaytor’s chances of avoiding forfeiture under Section 7(1) of the Seizure of Criminal Property Act are quite bleak.

Alberta (Minister of Justice and Attorney General) v. Clarke, 2009 ABQB 518, an Alberta civil forfeiture case, provides authority for the proposition that an uninvolved co-owner of an instrument of crime can seek compensation for their interest in a piece of property that is forfeit. In Mr. Kaytor’s case, however, the Defendant’s mother was not the registered owner of the vehicle, and establishing that she retains an interest in it could be an uphill battle indeed.

Decided by the Saskatchewan Court of Queen’s Bench on February 15, 2012.
Click here for the full text of the decision.

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Director under the Seizure of Criminal Property Act, 2009 v. Speiler, 2012 SKQB 77

Saskatchewan’s Director under the Seizure of Criminal Property Act applied for an interim preservation order, allowing the Regina Police to continue holding $5,240.00 in cash seized from the Defendant, on suspicion that it was the proceeds of crime.

No charges had been filed against the Defendant, and the Director had conceded that there was not sufficient to support a criminal charge. The Court of Queen’s Bench granted the interim preservation order, however, stating that even without enough evidence for criminal charges, there remained a “serious issue to be tried” on the civil standard of proof.

This is a stark reminder of the difference between the criminal and civil standards of proof, and a clear example of how provincial governments are increasingly seizing property in lieu of criminal charges when proof of guilt beyond a reasonable doubt is not possible.

Decided by the BC Supreme Court on February 14, 2012.
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