Alberta (Justice and Attorney General) v KTT, 2011 ABQB 645

Court of Queen ’ s Bench of Alberta Citation: Alberta (Justice and Attorney General) v KTT, 2011 ABQB 645 Date: 20111026 Docket: 1001 10157 Registry: Calgary Between: Minister of Justice and Attorney General for Alberta Applicant - and - KTT, Genstar Titleco Limited and the Toronto Dominion Bank Respondents Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.A.

Kent _______________________________________________________ [ 1 ] KTT is the registered owner of a home at 252 Everwillow Park SW in Calgary ( “the Property”). On January 26 th 2010, a search warrant was executed at the property. There were 96 marijuana plants found in the basement of the property along with a significant amount of marijuana growing equipment. The estimated value of the marijuana if sold by the ounce was $ 120, 000.

[ 2 ] This is an application on behalf of the Minister of Justice (the Minister) to have the Property forfeited on the basis that the Property was an instrument of illegal activity and Ms. Tang knew or reasonably ought to have known that the Property was being used for a marijuana grow operation. The application is brought pursuant to the Victims Restitution and Compensation Payout Act , S. A. 2001, C.A.-3.5. (“ VRCPA ”). [ 3 ] Ms T. is 49 years old. She is employed as a hairdresser. She first met K(K)T in 1997. They began living together in a common-law relationship in 1999.

In 2000, M. was born and in 2004, I. was born. Shortly after I.’s birth, Ms T. says she separated from Mr. T.. Ms T. has approximately a grade 3 education, that education being acquired in Cambodia. Her first language is Cantonese, her second is Mandarin and she speaks some English. She says that she can understand English when the speaker speaks in simple language. She measures her reading ability as about that of a child’s.

She is earning approximately $1,300 a month as a hairdresser. [ 4 ] The circumstances surrounding the execution of this search warrant began when M.T. told one of her teachers that her father spent the majority of his day and night in the basement of the Property. She said she was not allowed to go into the basement and that her father kept plants in the basement.

That report along with evidence that the children were often late for school and when they did show up they were hungry resulted in a report to the Children At Risk Team (CART), a team that was made up of a police constable, Constable Lange and a social worker, Christine Keatley. Constable Lange testified that he interviewed both I. and M. Both confirmed that their father was planting things in the basement.

Although the information they gave Constable Lange was somewhat contradictory and confusing, they did indicate that their father lived at the property and their mother lived at another place and they spent time with each of their parents in their respective places. They also appeared to confirm that the mother was at the Property from time to time. The interview of I. occurred at his school. The interview of M. occurred the same day but was at the mother’s home on Woodview Terrace because M. was sick that day. After interviewing I., Mr. T. showed up at the school. Constable Lange interviewed him.

Then Ms T. showed up at the school and Constable Lange interviewed her. An audio tape of his interview with Ms T. was played in court. During that interview, she indicated she did not know where Mr. T. lived and that they exchanged custody of the children either at the swimming pool or he would bring the children to her house. Constable Lange was convinced by the end of that interview that she knew nothing about the marijuana grow operation. It is clear from that interview that she did have some difficulty understanding Constable Lange and Ms.

Keatley depending upon the words that they used when asking questions. [ 5 ] As indicated above, a search warrant was executed at the Property. The constable in charge of that search warrant was Constable Shuttleworth. In addition to photographs being attached to an affidavit that he sworn these proceedings, there was a video of the Property. That video showed that the house was in a significant amount of disarray with men’s, women’s and children’s clothing on the floor in various parts of the house. There was medication including asthma medication for M. in one of the drawers.

Attached to the fridge was a handmade Christmas card from M. to “Mommy”. There were pictures of Ms T. and the children attached to a mirror in one of the upstairs bedrooms. There was a significant amount of mail, some opened, some unopened. There was mail addressed to Mr. T., mail addressed to Ms T. and also mail addressed to a Mr. Zhou. There were documents from the children’s school, there was an original passport for Mr. T. and copies of Ms T.’s passport.

There was a chequebook in the name of Ms T. showing an Elbow Drive residence as the printed address and handwritten on the chequebook the Woodview Terrace address. There was a large shipping box with the name Tang written on it. The box label appears to be from Sears portrait studio. [ 6 ] The proceedings came before me initially in April 2011. At that time the application for forfeiture was based upon affidavit evidence and transcripts of the cross-examination on affidavit of Ms T.. It became clear that the outcome of this case would rest upon the credibility of Ms T..

As will be shown below, there is some contradictory evidence between what she said on her affidavit, her cross- examination on that affidavit and her evidence at trial. Because it was a question of credibility I directed a viva voce hearing to be able to assess the evidence. As a result, on October 11 th and 12 th , I heard evidence from Constables Shuttleworth and Lange and Ms T.. [ 7 ] There was additional evidence given at trial by the two constables. Constable Shuttleworth also testified that there was a strong odour of marijuana outside of the house and inside the house.

In cross-examination Constable Lange admitted that I. said that his mother did not build or grow plants and M. said that her dad was the only one who was allowed in the basement. Constable Shuttleworth acknowledged that no further investigation was done with respect to Adam Zhou or two other people, Ken Peters or Ken Tuok, whose names had emerged during either the execution of the warrant or the interviews. [ 8 ] As indicated above, Ms T. testified.

It is helpful to consider certain topics and what she said at different times to assess her credibility regarding her knowledge of the illegal activity. [ 9 ] Dealing first with the purchase of the Property, in her affidavit she said that the purchase price came from the sale of her

home at [...] 7 th Avenue SE, a gift from C.T. who she identified as a relative residing in Europe and mortgage funds advance by the TD Bank. She said that [...] 7 th Avenue was owned jointly with P.T., K.T.’s brother. In cross-examination on the affidavit she said that the [...] 7 th Avenue house was not in her name. She said that she was not sure whether she received money from the sale of that property but suggested that her relatives realized that she was poor so they gave her money. The money she says was given on behalf of her children. She did admit that P.T. owned the property at [...] 7 th Avenue.

Also in cross-examination she said that another portion of the purchase price was paid by C.T. She was not sure if it was spelled T... or T..... P.T. paid $50,000 and C. paid the remainder of the down payment which totalled $88, 912. She described C. as being like a sister although she was not related by blood. [ 10 ] At trial she testified that P.T. and C.T. provided money for the purchase of the Property. She said that P.T. gave money because at one point she lived with Mr. T. at [...] 7 th Avenue and contributed money to the household. She said that he gave her about $55,000.

It was characterized as a gift for her children. She said that C.T. also gave her money because some time ago when C.T. first arrived in France Ms T. helped her financially. They are best friends. Ms. T. now runs a restaurant in France. Ms T. said that K.T. helped her with the purchase documentation. [ 11 ] The next issue is whether or not she ever visited the Property after she moved out. As indicated above she told the officers who interviewed her at the school that she did not know where Mr. T. lived. In her affidavit she said that during the period of time that she was separated from Mr.

T. and she was living on Woodview Terrace, she had little contact with him. She said she occasionally attended the Property to pick-up mail and visit her children. She admitted sleeping at the address a few times during the winter when the weather was severe. She said that she did not need to visit the basement. She indicated that she did not notice any unusual smells and that the door to the basement was locked. In her cross-examination on that affidavit at first she said that she would pick-up the mail but would never go in. She would also shovel the snow.

At trial Ms T. said that since she purchased the Property she was in the basement three times. The first was when she purchased the house and did a walk-through of the house. The second was sometime in 2008 when Mr. T. purchased toys for the children and they were playing with them in the basement. The third time was when a friend and her husband came to give an estimate for renovating the basement. She was in the basement with that couple and with Mr. T. At that time Mr. T. said that the estimate given by her friend was too high and that he would do the renovations on the basement with a friend.

She believes that occurred in 2009. She also acknowledged that she did go to the house from time to time after she moved out. The last time she was at the Property was at Christmas, 2009 when she hosted a Christmas party there. At the party were her ex-employer, her mother, nephews and siblings. She estimated about 25 people were there. [ 12 ] The next issue is when she planned to move back into the Property.

At trial she explained that there were photos of the children on the mirror in the bedroom and a Christmas card from her daughter on the fridge because she was planning to move back into the property in June 2010. She left those articles at the house as part of the process of moving back in. She said she would be moving back into the Property in June because that was when the lease ended at the Woodview Terrace property. In her cross-examination on affidavit she was less certain about the month in 2010 when she would be moving in. She said it would be June, July or August.

Analysis [ 13 ] There is no real dispute between the parties with respect to the law.

Section 19.3 of the VRCPA provides that on an application for forfeiture of property the onus is on the Minister to establish that the restrained property was an instrument of the illegal activity. The onus is on the respondent to establish that the respondent was not involved in the commission of the illegal acts in respect of which the property was restrained or that the respondent did not know and would not be reasonably expected to know that the restrained Property was or was likely to be used in carrying out an illegal act. In Alberta (Justice and Attorney General) v.

Chau , 2010 ABQB 758 , Macleod J. notes that the negative reverse onus which requires the respondent to prove that he or she did not know of the illegal activity or was not involved in the illegal activity is difficult. He then says at paragraph 35: However, I see no reason why a reasonable assertion of an absence of knowledge, made under oath, should not be sufficient in circumstances where the Minister subsequently fails to raise convincing evidence against the respondent.

Otherwise, the act would permit the forfeiture of property merely on lack of evidence, an outcome not in the interest of justice. [ 14 ] He acknowledges that the practical result of requiring the Minister to raise convincing evidence as an answer to a respondent’s reasonable assertion of an absence of knowledge is a de facto shifting of the onus to the Minister to raise evidence against an otherwise credible respondent.

[15] The other case which is relevant to one of the arguments of Ms T. is the decision of Alberta (Minister of Justice and AttorneyGeneral) v. Sykes, 2011 ABCA 191 , 2011ABCA 191. In that case an admitted small time drug trafficker was arrested forhaving sold marijuana to an undercover policeman from his vehicle. He was faced with an application for the forfeiture of the vehicle.The respondent’s evidence was that he normally sold drugs on foot and it was only on this occasion, while he was on his way to work,that he made the sale while he was in his car.

The trial judge found that there was no pattern of usage of this vehicle for illegal activitiesand that the sale to the undercover agent from the vehicle was simply a matter of happenstance. As a result he found that it did not meetthe criteria set out in VRCPA.

The Court of Appeal disagreed with the finding that this vehicle was merely incidental to the sale of drugsand concluded that it was an instrument of illegal activity. [16] However, the Court went on to address the question of whether a judge has the discretion to refuse to grant forfeiture evenwhere the Minister has established that the property was an instrument of illegal activity. The Court noted that

section 19.9.4(

b) of theVRCPA provides that if the property was used to carry out an illegal act, the Court “may” grant a forfeiture order. The Court found that ajudge did retain a discretion to refuse an order even where the Minister establishes that the Property was used in the commission of anillegal act.

There is, the Court noted, no test set out in the legislation to assist in determining how that discretion is to be exercised.Relevant factors in exercising discretion not to grant a forfeiture order include the degree of connection between the illegal activity andthe Property, the likelihood that the respondent would continue to use the Property to commit crimes and the role played by the Propertyin the underlying crime. The Court also looked more generally at the discretion that may be available in relieving against forfeiture.

Itnotes at para. 41 that “[r]elief from forfeiture is very much the exception and will not be routinely exercised. It is only to be grantedwhere the party seeking relief clearly makes a case of forfeiture would be inequitable and unjust.” [17] Finally, at paragraph 44 they say the following: Importantly relief orders should rarely be granted. Given the broad purposes of the VRCPA few applications for relief should succeed.Those who live a life of criminal activity should expect to forfeit all property used in furthering that activity.

Drug couriers and dial-a-dopers should always expect to have the discretion exercised against them. The use of the word “discretion” does not mean judges shouldroutinely refuse to grant forfeiture orders respecting seized property that was used to commit illegal acts; the discretion permitted is notunfettered but, in fact, is narrow. It does not permit untrammelled personal choice. The narrow parameters within which the discretionmay be exercised are established by the legislation’s purposes.

If the refusal to grant a forfeiture order defeats or subverts those purposes,the refusal will be unreasonable. [18] The first question is whether Ms T. has made a reasonable assertion of an absence of knowledge. There are a number offactors to consider. English is Ms T.’s third language. In addition she has had limited schooling. Accordingly, in weighing her evidence,most particularly her explanations for seemingly contradictory statements in the past, I must be careful. That said, I have great difficultyaccepting that Ms T. did not know or at the very least ought to have known that Mr.

T. was growing marijuana in the basement of theProperty. The odour alone ought to have alerted Ms T. that something unusual was going on. Moreover, I am deeply suspicious that MsT. and Mr. T. were in fact separated. It is as likely that the couple constructed a lifestyle that permitted the marijuana operation to occurwhile hopefully immunizing Ms T., the legal titleholder to the Property, from the risk of forfeiture. I say this because of the evidencefound in the Property that indicates that she was living at the Property. That evidence includes the Christmas card from M. and thephotos.

The origin of the down payment for the Property also raises serious questions. It is not probable that Mr. T.’s brother simplygifted over $50,000 to Ms T.. It is more consistent with this constructed lifestyle I refer to above. In my view Ms T. has not made out areasonable case that she did not have knowledge of the illegal activity. [19] That takes me to the second issue; namely whether to grant relief against forfeiture even though I have found that Ms T. knewthat there was illegal activity on the Property. I will not grant that relief.

Admittedly, it is concerning that Ms.Tang will lose the housewhere she lives with her two small children. However, I have found that Ms T. and Mr. T. constructed their living circumstances in anattempt to avoid forfeiture of the Property if the marijuana operation was discovered. The Property was closely connected to theoperation. Without the house there would have been no operation. [20] There will be forfeiture of the Property.

Pursuant to s. 19.98 (1)(e), I direct that Ms T. and her children be permitted to stay inthe Property until the end of the school year, subject to paying all mortgage, utility and other costs of maintaining the Property. TheMinister may attend at the Property from time to time upon reasonable notice to ensure that the Property remains in good condition. Ifthere are any other ancillary matters, counsel may contact my office to arrange a hearing. [21] I will not order costs against Ms T. There is equity in the Property which will ensure the Minister’s cost are covered.

Heard on the 11 th and 12 th days of October, 2011. Dated at the City of Calgary, Alberta this 26 th day of October, 2011. C.A. Kent J.C.Q.B.A. Appearances: Cynthia R. Hykaway Alberta Justice for the Plaintiff Aidan D. Henderson Beaumont Church LLP for the Respondents