Alberta (Minister of Justice and Attorney General) v. Echert et al., (2013) 563 A.R. 74 (QB)

• Judge: Brown, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Tuesday May 07, 2013
• Citations: (2013), 563 A.R. 74 (QB);2013 ABQB 314

Alta. v. Echert (2013), 563 A.R. 74 (QB)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. MY.165

Alberta (Minister of Justice and Attorney General of Alberta) (applicant) v. Radu Echert, Andrei Enica, Christina Caouette, Scotia Dealer Advantage Inc. and Chief of Police, Edmonton Police Service (respondents)

(1203 03428; 2013 ABQB 314)

Indexed As: Alberta (Minister of Justice and Attorney General) v. Echert et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Brown, J.

May 23, 2013.

Summary:

The Minister of Justice and Attorney General for Alberta applied under the Victims Restitution and Compensation Payment Act that certain restrained property (two vehicles and $1,590 in cash) be forfeited to Her Majesty the Queen in right of Alberta.

The Alberta Court of Queen's Bench dismissed the application and ordered that the vehicles be returned to the respondents.

Civil Rights - Topic 1503

Property - General principles - Deprivation of property - Compensation - The Minister of Justice and Attorney General for Alberta applied under the Victims Restitution and Compensation Payment Act for forfeiture of restrained property - One of the respondents asserted that the ability to defeat his interest in personal property "based solely on mere suspicion and conjecture" was contrary to the fundamental principles of justice and his right to enjoyment of property as enshrined in s. 1(a) of the Alberta Bill of Rights - The Alberta Court of Queen's Bench stated that the respondent's concern was unfounded as a case based solely on mere suspicion and conjecture was insufficient to permit a forfeiture order under the Act - As for an argument based on the Charter generally or s. 7 in particular, such was not available as there was no Charter guarantee against the forcible acquisition by the Crown of private property - Appellate courts had consistently rejected arguments that s. 7 enshrined protection against uncompensated takings of rights in property - The protection afforded by s. 1(a) of the Bill of Rights was of no practical assistance, since the scope of a "due process" guarantee was procedural - That procedural protection had been narrowly defined such that the Crown was immune from liability so long as the impugned measure was effected by a validly enacted statute - There was no suggestion that the Act was invalidly enacted - See paragraphs 41 to 51.

Civil Rights - Topic 1562

Property - Land - Deprivation of - Not in accordance with principles of fundamental justice - [See Civil Rights - Topic 1503].

Civil Rights - Topic 8005

Canadian or provincial Bill of Rights - Principles of operation and interpretation - Due process - Right to life, liberty, security and enjoyment of property - [See Civil Rights - Topic 1503].

Civil Rights - Topic 8011

Canadian or provincial Bill of Rights - Principles of operation and interpretation - Notice requirements - The Minister of Justice and Attorney General for Alberta applied under the Victims Restitution and Compensation Payment Act for forfeiture of restrained property - One of the respondents asserted that the ability to defeat his interest in personal property "based solely on mere suspicion and conjecture" was contrary to, inter alia, his right to enjoyment of property as enshrined in the Alberta Bill of Rights - The Alberta Court of Queen's Bench stated that while s. 4(1) of the Bill of Rights required notice to the Minister, the raising of the issue in the respondent's written submissions provided sufficient notice - Moreover, the matter was canvassed in the hearing before the court, and the Minister did not take the position that proper notice had not been furnished - See paragraph 42.

Criminal Law - Topic 7002

Civil Remedies Act, Civil Forfeiture Act, etc. - General - Legislation - The Alberta Court of Queen's Bench reviewed the process enacted in the Victims Restitution and Compensation Act to allow for the seizure and disposition of property implicated in criminal activity - See paragraphs 13 to 20.

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 stated that in an application under the Victims Restitution and Compensation Payment Act for forfeiture of restrained property where the Minister was relying upon a police officer's opinion that was based upon his or her experience, the officer should be properly qualified as an expert - The evidence regarding the connection between the property and illegal activity being the basis for the forfeiture order, the Minister's evidence had to be of unimpeachable quality - See paragraph 32.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - The Minister of Justice and Attorney General for Alberta applied under the Victims Restitution and Compensation Payment Act for forfeiture of certain restrained property (two vehicles and $1,590) - The Minister relied principally upon the affidavit of a police officer (Sauve) - Sauve deposed to activities of the two vehicles, to his (and others') belief that those activities were "consistent with a drug transaction" and to his explanation for that belief ("based on [his] experience" that "typically" most drug transactions were carried out in a similar fashion often entailing a quick exchange) - The Alberta Court of Queen's Bench refused to order forfeiture - Instead of the basis for the officers' beliefs, the court had Sauve's belief, based upon his experience - However, Sauve had not described that experience - On a related point, his statements purporting to establish the connection between the vehicles and the illegal activity did not meet the Minister's onus of proving to a balance of probabilities that the vehicles were instruments of illegal activity - Even if Sauve's experience was clarified, his evidence was not tendered as expert opinion evidence nor was he qualified for that purpose - Nor were the prerequisites met for admitting the evidence for its truth as the opinion evidence of a lay person - The ordinary experience of lay persons would not allow them to form the opinion that Sauve expressed - Sauve's opinion was not necessary as an abbreviated version of his factual observations - See paragraphs 22 to 32.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - The Minister of Justice and Attorney General for Alberta applied under the Victims Restitution and Compensation Payment Act for forfeiture of certain restrained property (two vehicles and $1,590) - The Minister relied principally upon the affidavit of a police officer (Sauve) - Sauve deposed to activities of the two vehicles, to his (and others') belief that those activities were "consistent with a drug transaction" and to his explanation for that belief ("based on [his] experience" that "typically" most drug transactions were carried out in a similar fashion often entailing a quick exchange) - The Alberta Court of Queen's Bench dismissed the application - Sauve deposed to two searches which the court inferred was hearsay evidence - By virtue of s. 52 of the Act, the court had a discretion to grant forfeiture based on hearsay evidence - However, the hearsay evidence had to conform to the boundaries of other rules regarding its admission - The Minister had to put his best foot forward - He had not done so - Sauve did not disclose the source of his information and he did not dispose to his belief in such information as required by rule 13.18 of the Rules of Court - See paragraphs 33 to 40.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - The Minister of Justice and Attorney General for Alberta applied under the Victims Restitution and Compensation Payment Act for forfeiture of certain restrained property - The Alberta Court of Queen's Bench dismissed the application due to deficiencies in the evidence relied upon by the Minister - The court rejected the respondents' assertion that the Minister had to discharge his onus based on his own evidence, and not their evidence - The evidence given by the respondents could form part of the Minister's case - However, the respondents' evidence did not help the Minister here - See paragraphs 53 and 54.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - The Minister of Justice and Attorney General for Alberta unsuccessfully applied under the Victims Restitution and Compensation Payment Act for an order that certain restrained property (including two vehicles) be forfeited - The vehicles were ordered returned to the respondents - The Minister sought from the  respondents storage fees paid in respect of the vehicles, noting that the Crown had considerable difficulty arranging for cross-examination of one of the respondents - The Alberta Court of Queen's Bench stated that each of the parties assumed a burden when the Minister sought and obtained a restraint order - The respondents lost the use of their private property and the Minister incurred storage costs - Since there was no means by which the court could direct the Minister to compensate the respondents for their costs associated with their burden, the court refused to relieve the Minister from the costs of his burden - See paragraph 56.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualifications and declaration that a witness is an expert - [See second Criminal Law - Topic 7062].

Evidence - Topic 7112

Opinion evidence - Nonexpert evidence - Admissibility - [See second Criminal Law - Topic 7062].

Practice - Topic 3628

Evidence - Affidavits - Making of - Affidavit of information and belief - General - [See third Criminal Law - Topic 7062].

Practice - Topic 3630

Evidence - Affidavits - Making of - Grounds or source of information and belief - [See third Criminal Law - Topic 7062].

Cases Noticed:

Alberta (Minister of Justice) et al. v. Pazder et al. (2010), 487 A.R. 267; 495 W.A.C. 267; 2010 ABCA 183, refd to. [para. 13].

Alberta (Minister of Justice) et al. v. Pazder et al., [2009] A.R. Uned. 508; 2009 ABQB 450, refd to. [para. 15].

R. v. White (J.K.), [1999] 2 S.C.R. 417; 240 N.R. 1; 123 B.C.A.C. 161; 201 W.A.C. 161, refd to. [para. 16].

Alberta (Minister of Justice) et al. v. Chau et al. (2010), 506 A.R. 334; 2010 ABQB 758, refd to. [para. 16].

Alberta (Minister of Justice) et al. v. Clarke et al., [2009] A.R. Uned. 609; 2009 ABQB 518, refd to. [para. 16].

Alberta (Minister of Justice) et al. v. To et al., [2010] A.R. Uned. 714; 2010 ABQB 648, refd to. [para. 16].

Alberta (Minister of Justice) et al. v. Lee et al., [2012] A.R. Uned. 181; 2012 ABQB 136, refd to. [para. 16].

Alberta (Minister of Justice) et al. v. Sykes et al. (2011), 505 A.R. 380; 522 W.A.C. 380; 2011 ABCA 191, refd to. [para. 18].

Alberta (Minister of Justice) et al. v. Yousif et al. (2010), 488 A.R. 335; 2010 ABQB 81, refd to. [para. 23].

R. v. Graat, [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 27].

Ontario (Attorney General) v. $9,616.98 in Canadian Currency (2011), 282 O.A.C. 146; 2011 ONSC 3820 (Div. Ct.), refd to. [para. 29].

R. v. Storrey, [1990] 1 S.C.R. 241; 105 N.R. 81; 37 O.A.C. 161, refd to. [para. 29].

R. v. Wilson (A.J.) (2012), 331 B.C.A.C. 195; 565 W.A.C. 195; 2012 BCCA 517, refd to. [para. 29].

Lippa v. Can-Cell Industries Inc. (2010), 493 A.R. 389; 502 W.A.C. 389; 2010 ABCA 409, refd to. [para. 35].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 43].

Van Giessen et al. v. Montana Alberta Tie Ltd. et al. (2011), 518 A.R. 367; 2011 ABQB 219, refd to. [para. 44].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 44].

Becker v. Alberta (1983), 45 A.R. 36; 148 D.L.R.(3d) 539 (C.A.), refd to. [para. 44].

A and L Investments Ltd. v. Ontario (Minister of Housing) (1997), 104 O.A.C. 92; 152 D.L.R.(4th) 692; 36 O.R.(3d) 127 (C.A.), leave to appeal dismissed (1998), 227 N.R. 281; 111 O.A.C. 399 (S.C.C.), refd to. [para. 44].

Clitheroe v. Hydro One Inc., [2009] O.T.C. Uned. F21 (Sup. Ct.), affd. [2010] O.A.C. Uned. 300; 2010 ONCA 458, leave to appeal dismissed (2010), 416 N.R. 393; 282 O.A.C. 397 (S.C.C.), refd to. [para. 44].

Estabrooks Pontiac Buick Ltd., Re; Fisherman's Wharf Ltd., Re (1982), 40 N.B.R.(2d) 42; 105 A.P.R. 42; 135 D.L.R.(3d) 367 (Q.B.), affd. (1982), 44 N.B.R.(2d) 201; 116 A.P.R. 201; 44 N.B.R.(2d) 201 (C.A.), refd to. [para. 44].

Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101; 23 N.R. 159, refd to. [para. 45].

Tener and Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82, refd to. [para. 45].

Canadian Pacific Railway Co. v. Vancouver (City), [2006] 1 S.C.R. 227; 345 N.R. 140; 221 B.C.A.C. 1; 364 W.A.C. 1; 2006 SCC 5, refd to. [para. 45].

R. v. Martin (1961), 35 W.W.R.(N.S.) 385 (Alta. C.A.), refd to. [para. 48].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363, refd to. [para. 48].

Harrison v. Carswell, [1976] 2 S.C.R. 200; 5 N.R. 523, refd to. [para. 48].

Driver Control Board (Alta.) v. Lupien (2001), 295 A.R. 291 (Q.B.), refd to. [para. 48].

Marr v. Marr Estate and Vallejos (1989), 101 A.R. 47; 63 D.L.R.(4th) 500 (Q.B.), refd to. [para. 48].

Moore v. Edmonton (City) et al. (1997), 199 A.R. 346 (Q.B.), refd to. [para. 48].

R. v. Pennington (1981), 34 A.R. 330; 128 D.L.R.(3d) 746 (C.A.), refd to. [para. 48].

Trelenberg v. Alberta (Minister of the Environment) (1980), 31 Alta. L.R.(3d) 353 (Q.B.), refd to. [para. 48].

Byron Hills Resources Ltd. v. Alberta (Minister of Sustainable Resource Development) et al. (2009), 473 A.R. 71 (Q.B.), refd to. [para. 50].

Authors and Works Noticed:

Alterman, Rachelle, Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights (2010), generally [para. 44].

Bauman, Richard W., Property Rights in the Canadian Constitutional Context (1992), 8 S.A.J.H.R. 344, generally [para. 44].

Horsman, Karen, and Morley, Gareth, Government Liability: Law and Practice (2012 Looseleaf Supp.), pp. 4-1 [para. 44]; 4-1 to 4-65 [para. 45].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (6th Ed. 2011), p. 181 [para. 27].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2012), pp. 13 to 43 [para. 35].

Counsel:

Nicole Pfeifer (Alberta Justice - Civil Litigation), for the applicant;

K.B. Sinn, student-at-law (Chadi & Company), for the respondent, Radu Echert;

Paul Moreau (Moreau & Company), for the respondent, Andrei Enica.

This application was heard on May 7, 2013, by Brown, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on May 23, 2013.