Alberta (Justice and Attorney General) v. Robblee, 2011 ABQB 516

Court of Queen ’ s Bench of Alberta Citation: Alberta (Justice and Attorney General) v. Robblee, 2011 ABQB 516 Date: 20110816 Docket: 1103 06465 Registry: Edmonton Between: Minister of Justice and Attorney General for Alberta Applicant - and - Spencer Alexander Robblee, Steven Alexander Montour, Wayne Alan Normandin, Timothy Gus Sakellariou, Katherine Marie Messelink, Ross George Hilton, and Chief of Police, Edmonton Police Service Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] The Minister of Justice applies for an order for the disposal of a 2004 Jeep Grand Cherokee owned by the Respondent Ross George Hilton. The application is made pursuant to the Victims Restitution and Compensation Payment Act, R.S.A. 2000, c. V-3 .5. [ 2 ] The vehicle was made the subject of a Restraint Order by Verville J. on April 11, 2011. It had been seized on March 31, 2011 after some of the Respondents, other than Mr. Hilton, were observed by police using it in a drug trafficking operation.

In the course of the investigation police found drugs hidden in the vehicle.

[ 3 ] Mr. Hilton was not arrested or charged in connection with the illegal activity observed by police at the time his Jeep was seized. He was not present. [ 4 ] On May 13, 2011, after he was served with notice of the Restraint Order, Mr. Hilton filed an affidavit in which he affirmed as follows: I lent my vehicle, 2004 Jeep Grand Cherokee, on April 5, 2011 to Spencer Alexander Robblee. He is a friend of mine, I have known him for 10 years. I was under the impression that he was using the vehicle for transportation purposes only. I had no knowledge that there would be any kind of narcotics in the vehicle.

I would like the vehicle returned to me, I don ’ t want to have to pay any of the impound fees as I feel I am not responsible at all for what happened. [ 5 ] On May 26, 2011 Mr. Hilton was cross-examined on this affidavit. He confirmed that the date in his affidavit, April 5, 2011, was an error. He had lent the vehicle to Mr. Robblee on March 29. He denied knowing that the other Respondents had used the vehicle to transport drugs. He denied knowing that Mr. Robblee had ever been involved in drug trafficking. He admitted that he himself has in the past been charged and convicted of drug related offences.

He was asked whether a vehicle owned by him, other than the Jeep, had ever been seized in connection with an alleged criminal offence and he answered, “ No ” . [ 6 ] On June 28, 2011 the Minister of Justice filed an affidavit of the investigating police officer. He swore:

a) that Mr. Hilton told him during a telephone conversation on May 10, 2011 that he had loaned the Jeep to Mr. Robblee, that he knew Robblee had been in trouble before and specifically told Robblee not to get the Jeep seized.

b) that he had reviewed police records and they indicated that on February 8, 2011 the Jeep had been stopped in the course of a police attempt to execute an outstanding warrant against Mr. Hilton. Mr. Robblee was driving. The Jeep was seized on that occasion.

c) that a police officer had informed him that on February 9, 2011 Mr. Hilton had inquired concerning his Jeep after it was seized the previous day. Mr. Hilton told the officer that he routinely loaned the Jeep to friends for their business and had absolutely no issues with what his friends do with the Jeep.

d) that a police database search indicated that Mr. Hilton was convicted of possession of a controlled substance for the purpose of trafficking on March 28, 2006. [ 7 ]

Section 19.93(1)(b)(ii)(

B) of the Act places the onus on Mr. Hilton to establish that he did not know and would not reasonably be expected to know that the restrained property was likely to be used in carrying out an illegal act. The Minister takes the position that Mr. Hilton has failed to discharge that onus. [ 8 ] Mr. Hilton swore that: - he did not know that the vehicle was to be used in drug trafficking;

- Mr. Robblee and the other person who were seen in the vehicle before it was seized were his friends, that he had known Mr. Robblee for 10 years; - he did not know that Mr. Robblee was involved in drug trafficking on that occasion or that he had ever previously been so involved; - he had never purchased drugs from Mr. Robblee and never sold or provided drugs to Mr. Robblee or any of the other Respondents; - he had loaned Mr. Robblee his vehicle for a few days on a number of occasions because he needed it for transportation in order to move out his mother ’ s house and to look for a job; - he did not charge Mr.

Robblee for the use of the vehicle or receive anything from him in exchange for the loan; - he has himself been convicted of a drug offence. [ 9 ] Unless it is unworthy of belief, Mr. Hilton ’ s evidence is sufficient, in my view, to discharge the onus which rests on him in this application. [ 10 ] The Minister filed an affidavit after Mr. Hilton was cross-examined. None of its contents establish that anything Mr. Hilton swore to is not true. [ 11 ] The evidence filed by the Minister does not establish that Mr. Robblee or any of the other Respondents had ever previously been convicted of drug trafficking.

Indeed the evidence does not establish that they have been convicted in respect of the events that lead to the seizure of the Jeep. [ 12 ] There is a suggestion that when the Jeep was seized in early February when Mr. Robblee was driving it, it was in connection with a drug investigation. But there is no indication that Mr. Robblee or anyone else was charged with a drug offence then or that they or Mr. Hilton knew that the police had been engaged in a drug investigation when they stopped the vehicle. [ 13 ] The police officer swears that Mr. Hilton told him on May 10 that he knew Mr.

Robblee had been in trouble before. Indeed he had been “ in trouble ” only a few weeks earlier and the trouble had involved Mr. Hilton ’ s Jeep being seized. There is nothing to suggest that the prior “ trouble ” Mr. Hilton mentioned had anything to do with drug trafficking. [ 14 ] The evidence filed by the Minister indicates that Mr. Hilton ’ s previous involvement with drug trafficking occurred 5 years ago. It does not indicate that Mr. Robblee or any other Respondent was involved at that time. Nothing in the evidence justifies an inference that Mr.

Hilton is currently involved in drug trafficking. [ 15 ] The evidence indicated that the Jeep had previously been seized, but Mr. Hilton never denied that. He was asked in cross- examination whether any vehicle of his other than the Jeep had been previously seized. [ 16 ] No fact proved by the evidence filed by the Minister establishes that a fact contained in the evidence of Mr. Hilton is untrue. [ 17 ] Neither, in my view, does anything in the evidence presented by the Minister justify the conclusion that Mr. Hilton ’ s

evidence is unreliable. It does not damage Mr. Hilton ’ s credibility. [ 18 ] In my view Mr. Hilton has discharged the onus on him. I find that on a balance of probabilities he did not know and would not reasonably be expected to know that the Jeep was or was likely to be used in carrying out an illegal act. [ 19 ] I direct under s. 19.94(b)(

i) that the Jeep be returned to Mr. Hilton. Heard on the 21 st day of July 2011. Dated at the City of Edmonton, Alberta this 16 th day of August 2011. Brian R. Burrows J.C.Q.B.A. Appearances: James Mallet for the Applicant Ross George Hilton appeared without Counsel. None of the Other Respondents participated in the application.