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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