Alberta (Justice and Attorney General) v. Tang, 2011 ABQB 267

Court of Queen ’ s Bench of Alberta Citation: Alberta (Justice and Attorney General) v. Tang, 2011 ABQB 267 Date: 20110415 Docket: 1001 10157 Registry: Calgary Between: Minister of Justice and Attorney General for Alberta Plaintiff - and - Kieu Tuc Tang, Genstar Titleco Limited and the Toronto Dominion Bank Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice C. A.

Kent _______________________________________________________ [ 1 ] The Crown applied for disposal of property restrained pursuant to the Victims Restitution and Compensation Payment Act , S.A., 2001, V-3.5. Before me was the affidavit of Constable Shuttleworth, used for the ex parte application to restrain the property and the affidavit of Kieu Tuc Tang, the registered owner of the property. Ms. Tang sets out her involvement with the property since its purchase and denies any knowledge that the property was used for a marihuana grow operation. [ 2 ] Ms. Tang’s first language is not English.

When she was cross-examined on her affidavit, an interpreter was required. There was also an interpreter present beside her when she attended the disposal hearing.

[ 3 ] The Crown argues that there were several inconsistencies in Ms. Tang’s evidence both within her cross-examination and between her cross-examination and what she told the police in January, 2010. The Crown also says that some of her evidence is unbelievable. Counsel for Ms. Tang argues that there are no inconsistencies when the evidence is examined closely and that Ms. Tang’s explanation of various matters is credible. [ 4 ] Thus, the issue before me is one of credibility. Having reviewed the evidence and arguments and taking into account the fact that Ms.

Tang struggles with English, I cannot assess credibility only on the record. The consequences of this application could be serious for Ms. Tang. She could lose her house. Although the Act sets out a

summary procedure for hearing these applications, care must be taken to balance the rights of the parties against the advantages of a

summary disposition. S. 13(1) (

d) permits a party to the hearing to apply for leave to give oral evidence. In cases where credibility is the central issue and where there may be an issue about the Respondent’s understanding of English, an oral hearing is preferable. [ 5 ] Accordingly, I direct that this go to an oral hearing. Counsel should approach the civil trial co-ordinator to have this set for a day. Although I may not be seized with the matter, if possible, it should be set before me since I am already familiar with the material. [ 6 ] There was another argument made by the Crown, namely that because Ms.

Tang failed to provide income tax returns as requested at the cross-examination, she should be deemed to have forfeited the property pursuant to s. 19.92(

d) of the Act . Ms. Tang says that she has requested the documents but not received them. Would Ms. Tang be the first Canadian tangled up in the complicated web of the income tax department? It would not be appropriate to take such a drastic step on the basis of affidavit evidence alone. Heard on the 5 th day of April, 2011. Dated at the City of Calgary, Alberta this 15 th day of April, 2011. C. A. Kent J.C.Q.B.A. Appearances: Cynthia R. Hykaway Alberta Justice, Civil Forfeiture Office for the Plaintiff

Aidan D. Henderson Beaumont Church LLP for the Respondents