The Saskatchewan Court of Appeal considers s. 7(1) of the Seizure of Criminal Property Act (“the Act”), which states that “subject to section 8, and unless it clearly would not be in the interests of justice, the court shall make an order forfeiting property to the Crown if the court finds that the property is proceeds of unlawful activity or an instrument of unlawful activity.” The Court held that once the Director has established the criteria entitling an order for forfeiture, the burden shifts to the owner to prove, on a balance of probabilities, that an exemption should be applied.
The respondent’s (defendant’s) vehicle and cell phone were seized following an incident where the respondent sold two Oxycontin tablets to an undercover police officer in order to obtain $60 to put gas into the vehicle. The chambers judge found it would not be in the interests of justice to permit the forfeiture of the respondent’s property and so rejected a forfeiture order. The Director appealed. The Court of Appeal adopted the reasoning in Ontario (Attorney General) v. 1140 Aubin Road (Windsor), 2011 ONCA 363, in affirming that the onus lies with the owner to prove, on a balance of probabilities, that an exemption should be applied. The Court found the exemption was improperly applied in this case, as the motions judge failed to adequately consider the “clearly” in the wording of 7(1), and the importance to the larger interests of society of upholding the forfeiture of a vehicle used to traffic drugs. There was no strong evidence that demonstrated the forfeiture was manifestly harsh, unjust or inequitable.
Sarah Rankin
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