Alberta (Minister of Justice) et al. v. Sykes et al.,

• Judge: Bielby,Phillips,Ritter
• Neutral Citation: 2011 ABCA 191
• Subject Matter: CRIMINAL LAW
• Citation: 2011 ABCA 191,(2011), 505 A.R. 380 (CA),505 AR 380,(2011), 505 AR 380 (CA),505 A.R. 380
• Date: 24 June 2011
• Court: Court of Appeal (Alberta)

Alta. v. Sykes (2011), 505 A.R. 380 (CA);

      522 W.A.C. 380

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.001

Minister of Justice and Attorney General for Alberta (appellant/applicant) v. Stephen Jordan Sykes and Willie's 24 Hour Towing Ltd. (respondent/respondent)

(101-0165-AC; 2011 ABCA 191)

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

Alberta Court of Appeal

Ritter and Bielby, JJ.A., and Phillips, J.(ad hoc)

June 24, 2011.

Summary:

While on his way to work, Sykes sold drugs from his vehicle. On all other occasions, he sold drugs while "on foot". The Crown seized the vehicle pursuant to a restraint order under the Victims Restitution and Compensation Payment Act. The Crown sought forfeiture. The reviewing judge ordered that the vehicle be returned after payment of the storage charges and awarded solicitor-client costs to Sykes. The judge held that the Crown failed to prove that the single use of the vehicle (Sykes normally sold "on foot") constituted use of the vehicle to carry out an illegal act (Act, s. 1(3.1)). The Crown appealed.

The Alberta Court of Appeal allowed the appeal in part. The reviewing judge did not err in the result (vehicle to be returned), but erred in failing to limit Sykes' obligation to pay storage costs to a reasonable amount. The court also set aside the solicitor-client costs award and ordered that each party bear their own costs.

Criminal Law - Topic 7062

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Forfeiture - [See first Criminal Law - Topic 7063 ].

Criminal Law - Topic 7063

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Interim preservation or restraint order (incl. review or appeal) - Sykes sold drugs from his vehicle on one occasion, on his way to work - He normally sold drugs "on foot" - The Crown seized the vehicle under the Victims Restitution and Compensation Payment Act (restraint order), then sought forfeiture - The reviewing judge ordered the vehicle returned because the Crown failed to prove that the one-time use of the vehicle to sell drugs constituted use "in carrying out an illegal act" (s. 1(3.1)) - The Alberta Court of Appeal affirmed the result, but based on the residual discretion to not order forfeiture - The court stated that "if the [vehicle] subject to seizure was more than incidentally involved in the commission of the crime, it was used for criminal activity under this legislation" - Therefore, Sykes' vehicle was an instrument of illegal activity, which made it subject to possible forfeiture under s. 19.94(b), which provided that if the vehicle was used for criminal activity, the judge "may" grant a disposal order - The court stated that "had the reviewing judge considered the issue of his discretion to order [Sykes'] vehicle forfeited, he could have properly exercised that discretion to achieve the same result for the reasons he in fact outlined (i.e. that the use of the vehicle was incidental to the offence, that there was no drug paraphernalia found, and no pattern of use for the vehicle in relation to other drug sales existed). ... it is obvious from his decision what the reviewing judge would have done had he considered the discretion issue. I therefore decline to return the matter to Queen's Bench, and dismiss the appeal insofar as it relates to the forfeiture issue." - See paragraphs 1 to 47.

Criminal Law - Topic 7063

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Interim preservation or restraint order (incl. review or appeal) - Sykes' vehicle was seized under the Victims Restitution and Compensation Payment Act (restraint order) - The Crown sought forfeiture - The vehicle was ordered returned by the reviewing judge because the Crown failed to prove that the vehicle had been used to carry out criminal activity - The Crown had agreed to pay the storage company $3,300 for four months' storage - The reviewing judge ordered Sykes to pay the full amount - The Alberta Court of Appeal held that the judge erred in ordering the vehicle returned because it was not used to carry out criminal activity, but affirmed the return of the order based on the residual discretion to not order forfeiture even though the vehicle was used to carry out criminal activity - The court directed Sykes' obligation to pay storage costs be limited to a reasonable amount ($750) - The Crown was to pay the balance - The court stated that "where the item seized is returned to the owner only because of the residual discretion to refuse a forfeiture order even though the Crown has met its burden of proof regarding use of the item seized, the owner of the item should be responsible for reasonable storage charges. ... Although [Sykes] can be called upon to pay reasonable fees when property is legitimately seized and stored, the arrangement between the Crown and the storage company results in an excessive fee." - Further, the judge erred in awarding Sykes solicitor-client costs for the forfeiture hearing - Where the seizure was lawful and the seized item was returned under the residual discretion not to order forfeiture, no costs should be awarded to the item's owner - See paragraphs 48 to 50.

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. 9].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 12].

Alberta (Minister of Justice ) et al. v. Chan et al. (2009), 472 A.R. 349; 2009 ABQB 311, refd to. [para. 19].

Alberta (Minister of Justice) et al. v. Yousif et al. (2010), 488 A.R. 335; 2010 ABQB 81, refd to. [para. 20].

Julius v. Oxford (Lord Bishop) (1880), 5 App. Cas. 214 (P.C.), refd to [para. 26].

Brown v. Metropolitan Authority et al. (1996), 150 N.S.R.(2d) 43; 436 A.P.R. 43 (C.A.), refd to. [para. 26].

Bates v. Bates (2000), 133 O.A.C. 319; 49 O.R.(3d) 1 (C.A.), refd to. [para. 26].

Goddard v. Day et al. (2000), 282 A.R. 349; 2000 ABQB 942, refd to. [para. 32].

P.T. v. R.B. et al. (2001), 296 A.R. 232; 2001 ABQB 739, refd to. [para. 32].

R. v. Raine (L.) (1994), 149 A.R. 263; 63 W.A.C. 263; 90 C.C.C.(3d) 364 (C.A.), refd to. [para. 32].

Ontario (Attorney General) v. 1140 Aubin Road, Windsor et al. (2011), 279 O.A.C. 268; 2011 ONCA 363, refd to. [para. 40].

Saskatchewan River Bungalows Ltd. and Fikowski v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490; 168 N.R. 381; 155 A.R. 321; 73 W.A.C. 321, refd to. [para. 40].

Statutes Noticed:

Victims Restitution and Compensation Payment Act, S.A. 2001, c. V-3.5, sect. 1(3.1), sect. 19.93(1), sect. 19.94, sect. 19.95 [para. 8].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), generally [para. 26].

Counsel:

C.R. Hykaway, for the appellant/applicant;

Stephen Jordan Sykes, on his own behalf.

This appeal was heard on April 7, 2011, before Ritter and Bielby, JJ.A., and Phillips, J.(ad hoc), of the Alberta Court of Appeal.

On June 24, 2011, Ritter, J.A., delivered the following judgment for the Court of Appeal.