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POWERS OF SEARCH AND SEIZURE - Forfeiture of items seized

Friday, May 24, 2019 @ 8:23 AM  

Lexis Advance® Quicklaw®
Appeal by the Minister of Justice from a decision dismissing the Minister’s application for forfeiture of a motor vehicle on the basis that it constituted property which was used or likely to be used in carrying out an illegal act. The respondent’s son was arrested for drug trafficking. Search warrants were executed on the vehicle, then owned by the respondent’s son. Police found six cell phones in the vehicle and a suspected stash location in the passenger door. One of the cell phones had messages on it that were consistent with drug trafficking. The respondent obtained title to the vehicle 13 days after the son’s arrest for helping to defray the son’s legal expenses. The son was not convicted on the charges against him. The trial judge found that the result of the criminal charges against the son was itself evidence disproving the probability of the use of the vehicle in service of drug dealing activity. He also found that the Minister had the burden of showing why there was no conviction even though the Minister was not the prosecutor of the son’s case.

HELD: Appeal allowed. The trial judge made a reversible error when attempting to proceed through the burdens of proof in the Victims Restitution and Compensation Payment Act. Neither the decision of a different agency of the Crown to not continue a prosecution nor the acquittal of the respondent’s son prevented the Minister in her effort to show the property was subject to forfeiture.

Alberta (Minister of Justice and Solicitor General) v. Rakka, [2019] A.J. No. 453, Alberta Court of Appeal, J. Watson, B.K. O'Ferrall and S.J. Greckol JJ.A., April 16, 2019. Digest No. TLD-May202019010