Alberta (Minister of Justice) et al. v. Cardinal et al., 2013 ABQB 407

• Judge: Wakeling, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 27, 2013
• Citations: 2013 ABQB 407;(2013), 565 A.R. 271 (QB)

Alta. v. Cardinal (2013), 565 A.R. 271 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. JL.104

Minister of Justice and Attorney General for Alberta (applicant) v. Bruce James Cardinal and the Chief of Police, Edmonton Police Service (respondents)

(1103 09345; 2013 ABQB 407)

Indexed As: Alberta (Minister of Justice) et al. v. Cardinal et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wakeling, J.

July 17, 2013.

Summary:

Cardinal was arrested for trafficking in a controlled substance. A search of Cardinal and the vehicle he was driving revealed that he had $1,625 in cash, 13 dilaudid hydromorphone pills with a street value of $520, and two working cell phones containing allegedly drug-related text messages. Pursuant to the Victims Restitution and Compensation Payment Act, a restraint order was issued against Cardinal's vehicle and the $1,625. Cardinal was found not guilty of the trafficking charge, but guilty of the lesser included offence of possession of a controlled substance. The Crown sought forfeiture of the restrained property, arguing that the $1,625 was acquired as a result of an illegal act and that the vehicle was used to carry out that illegal act.

The Alberta Court of Queen's Bench ordered forfeiture.

Criminal Law - Topic 7002

Civil Remedies Act, Civil Forfeiture Act, etc. - General - Legislation - Sections 3(1) and 19.2(1) of the Victims Restitution and Compensation Payment Act were nearly identical, and stated that the Minister could begin an action alleging that property had been acquired by illegal means or was the instrument of illegal activity (a) to obtain restitution or compensation for victims and other persons, including the Crown and prescribed public bodies; (b) to remove financial incentives to commit illegal acts, including disgorging financial gains from illegal acts; and (c) to prevent property that had been used or was likely to be used in carrying out an illegal act from being used to carry out future illegal acts - The Alberta Court of Queen's Bench found that it could safely be assumed that the legislature shared the same goals in passing the law as it set for the Minister in taking action under the Act - Accordingly, the court found that the Act had two distinct purposes: (1) "to ameliorate the burden unlawful acts may impose on the direct victims of crime and society, the indirect victim of criminality, in that society bears the costs of the victims' health care and other services made available to victims and their family, as well as consequential police and court costs", and (2) "to impose a direct cost on persons who engaged in unlawful acts. It created a protocol the application of which deprives them of the proceeds of unlawful activity and the property they used to perpetrate unlawful acts. It acted to deter persons who commit crimes to make money." - See paragraphs 55 to 60.

Criminal Law - Topic 7062

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Forfeiture - The Alberta Court of Queen's Bench reviewed the process to be followed by the Crown in an application to deprive criminals or alleged criminals of the fruits or instrumentalities of criminal activity under the Victims Restitution and Compensation Payment Act - The court discussed the evidentiary and substantive standards required to order forfeiture of restrained property - See paragraphs 65 to 96.

Criminal Law - Topic 7062

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Forfeiture - Pursuant to an investigation in a part of Edmonton that was plagued by illegal drug activity, police observed Cardinal's car engage in suspicious activity on three occasions over a five day period - A female would enter the passenger door of the car and then promptly exit the car after it travelled a very short distance - Cardinal was arrested for trafficking in a controlled substance - A search of Cardinal and the car revealed that he had $1,625 in cash, 13 dilaudid hydromorphone pills with a street value of $520, and two working cell phones containing allegedly drug-related text messages - Pursuant to the Victims Restitution and Compensation Payment Act, a restraint order was issued against the car and the $1,625 - Cardinal was found not guilty of trafficking but guilty of the lesser included offence of possession of a controlled substance - The Crown sought forfeiture of the restrained property - Cardinal admitted that he was a drug user but denied that he was a trafficker - He claimed that the money came from the repayment of loans he had made and money he had borrowed from his mother, and that he had the money to pay for rent and a damage deposit - He claimed that his father's girlfriend had given him the pills after he hurt his wrist - The Alberta Court of Queen's Bench found that the Crown had established on a balance of probabilities that the $1,625 was acquired by illegal means and that the car was an instrument of illegal activity - The Crown's expert evidence respecting the nature of drug transactions supported a finding that Cardinal sold dilaudid hydromorphone to the women who entered his car while the police were watching - Cardinal failed to establish on a balance of probabilities that the cash came from an activity other than the sale of drugs or that his car was not used to carry out an illegal act - His story was not believable - There was no reason for the court to be lenient and exercise its discretion under ss. 14(b) and 19.94(b) of the Act to refuse a forfeiture order - There was nothing "inequitable or unjust" about forfeiture in this case - Leniency would undermine the legislative goal of removing financial incentives to commit unlawful acts - See paragraphs 97 to 127.

Criminal Law - Topic 7062

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Forfeiture - Cardinal was arrested for trafficking in a controlled substance - A search of Cardinal and the car he was driving (a 2005 Chrysler 300) revealed that he had $1,625 in cash, 13 dilaudid hydromorphone pills with a street value of $520, and two working cell phones containing allegedly drug-related text messages - Pursuant to the Victims Restitution and Compensation Payment Act, a restraint order was issued against the car and the $1,625 - Cardinal was found not guilty of trafficking but guilty of the lesser included offence of possession of a controlled substance - The Crown sought forfeiture of the restrained property - The Alberta Court of Queen's Bench ordered forfeiture - There was no reason for the court to exercise its discretion under ss. 14(b) and 19.94(b) of the Act to refuse a forfeiture order - There was nothing unjust about depriving Cardinal of his vehicle - If he had been driving an expensive car, Cardinal might have been able to argue that forfeiture would be an unjust and harsh result because he did not need to drive an expensive car in order to execute his business plan - However, Cardinal was not driving an expensive car - He paid $9,700 for the Chrysler in 2011 and it would be worth considerably less now - See paragraph 126.

Criminal Law - Topic 7062

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Forfeiture - Pursuant to an investigation in a part of Edmonton that was plagued by illegal drug activity, police observed Cardinal's car engage in suspicious activity on three occasions over a five day period - A female would enter the passenger door of the car and then promptly exit the car after it travelled a very short distance - Cardinal was arrested for trafficking in a controlled substance - A search of Cardinal and the car revealed that he had $1,625 in cash, 13 dilaudid hydromorphone pills with a street value of $520, and two working cell phones containing allegedly drug-related text messages - Pursuant to the Victims Restitution and Compensation Payment Act, a restraint order was issued against the car and the $1,625 - Cardinal was found not guilty of trafficking but guilty of the lesser included offence of possession of a controlled substance - The Crown sought forfeiture of the restrained property - The Alberta Court of Queen's Bench ordered forfeiture, finding that Cardinal sold dilaudid hydromorphone to the women who entered his car while the police were watching - The court discussed the significance of the fact that Cardinal was acquitted of trafficking, stating that "At a criminal trial, the Court must acquit the accused if the prosecution has not proved beyond a reasonable doubt the physical and mental components of the charged crime. This is a very high level of probability. The level of probability required in an in rem property disposal hearing under the Victims Restitution and Compensation Payment Act is considerably less. The Minister need only prove the facts in issue on a balance of probabilities. ... Given the different standards applicable in the two proceedings, it is conceivable that on the same facts a criminal trial judge may conclude that the prosecution has not proved its case beyond a reasonable doubt and that a Court of Queen's Bench judge conducting a property disposal hearing may conclude that the Minister had made his case on a balance of probabilities." - See paragraphs 128 to 134.

Cases Noticed:

Alberta (Minister of Justice) et al. v. Sykes et al. (2011), 505 A.R. 380; 522 W.A.C. 380; 334 D.L.R.(4th) 193; 2011 ABCA 191, refd to. [para. 13].

Dow Chemical Canada Inc. v. Shell Chemicals Canada Ltd. et al. (2008), 459 A.R. 68; 2008 ABQB 671 (Master), refd to. [para. 42, footnote 3].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 51].

Hirsch v. Protestant Board of School Commissioners of Montreal, [1926] S.C.R. 246, refd to. [para. 51].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305, refd to. [para. 51].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 51].

Canadian Fishing Co. v. Smith, [1962] S.C.R. 294, refd to. [para. 51].

Johnson v. Southern Pacific Co. (1904) 196 U.S. 1, refd to. [para. 51].

Castellano v. City of New York (1998), 142 F.3d 58 (2d Cir.), refd to. [para. 51].

Covert et al. v. Minister of Finance - see Jodrey Estate v. Nova Scotia and British Columbia and Quebec (Attorneys General).

Jodrey Estate v. Nova Scotia and British Columbia and Quebec (Attorneys General), [1980] 2 S.C.R. 774; 32 N.R. 275; 41 N.S.R.(2d) 181; 76 A.P.R. 181, refd to. [para. 51].

Harley v. Harley (1960), 24 D.L.R.(2d) 438 (Ont. C.A.), refd to. [para. 51].

Texada Mines Limited v. The Attorney General of British Columbia and The Attorney General of Ontario, [1960] S.C.R. 713, refd to. [para. 52].

Castillo v. Castillo, [2005] 3 S.C.R. 870; 343 N.R. 144; 376 A.R. 224; 360 W.A.C. 224; 2005 SCC 83, refd to. [para. 53].

Alberta Union of Provincial Employees v. Alberta Research Council, [1992] C.L.L.R. 14,390 (P.S.E.R.B.), refd to. [para. 54].

Alberta (Minister of Justice) et al. v. Pazder et al. (2010), 487 A.R. 267; 495 W.A.C. 267; 320 D.L.R.(4th) 209; 2010 ABCA 183, refd to. [para. 60].

Ontario (Attorney General) v. Chatterjee, [2009] 1 S.C.R. 624; 387 N.R. 206; 249 O.A.C. 355; 2009 SCC 19, refd to. [para. 61].

Alberta (Minister of Justice and Attorney General) v. Echert et al. (2013), 563 A.R. 74; 2013 ABQB 314, agreed with [para. 69].

R. v. J.-L.J., [2000] 2 S.C.R. 600; 261 N.R. 111; 2000 SCC 51, refd to. [para. 79].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 94].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201; 2000 SCC 57, refd to. [para. 94].

Ontario (Attorney General) v. 1140 Aubin Road, Windsor et al. (2011), 279 O.A.C. 268; 333 D.L.R.(4th) 326; 2011 ONCA 363, refd to. [para. 126].

Ontario (Attorney General) v. $51,000.00 in Canadian Currency, [2013] O.T.C. Uned. 1321; 2013 ONSC 1321, refd to. [para. 134].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 134].

Statutes Noticed:

Victims Restitution and Compensation Payment Act, S.A. 2001, c. V-3.5, sect. 3(1) , sect. 14(b), sect. 19.2(1), sect. 19.94(b) [para. 14].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., The Law of Evidence in Canada (3rd Ed. 2009), pp. 785 [para. 73]; 791 [para. 79]; 820 [para. 80].

Scalia, Antonin, and Garner, Bryan A., Reading Law: The Interpretation of Legal Texts (2012), pp. 56 [para. 51]; 297, 298 [para. 82].

Schiff, Stanley A., Evidence in the Litigation Process (4th Ed. 1993), vol. 1, pp. 25, 26 [para. 23]; 32 to 34 [para. 107].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 2 [para. 51]; 469 to 471 [para. 82].

Counsel:

Sarah Dolgoy (Alberta Justice), for the Minister of Justice and Attorney General for Alberta;

M. Naeem Rauf (Barrister and Solicitor), for Bruce James Cardinal.

This property disposal application was heard on June 27, 2013, before Wakeling, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on July 17, 2013.