Alberta (Justice and Attorney General of Alberta) v. Tetrault, 2012 ABQB 494

Court of Queen’s Bench of Alberta Citation: Alberta (Justice and Attorney General of Alberta) v. Tetrault, 2012 ABQB 494 Date: 20120803 Docket: 1108 00251 Registry: Medicine Hat Between: Minister of Justice and Attorney General of Alberta Applicant - and - Braden Garrett Tetrault, Denis Ivan Bagaric and the Chief of Police, Medicine Hat Police Service Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A. Jerke _______________________________________________________ Introduction [ 1 ] Mr.

Tetrault’s parents bought him a 2009 Silverado truck as his graduation gift. On April 7, 2011, Mr. Tetrault was arrested and his truck was seized. He was charged with possession of marijuana. That charge was later withdrawn. His friend, Mr. Bagaric, was also arrested and charged with possession of marijuana, and possession of cocaine. He plead guilty. [ 2 ] The Minister claimed the truck was an instrument of illegal activity, and took the first step under the Victims Restitution and Compensation Payment Act , RSA 2001, c V-3.5 (“ VRCPA ”) by applying for a Restraint Order.

The Restraint Order was granted on June 29, 2011. The Minister now applies to have the truck disposed of, and the proceeds paid to the Crown pursuant to the VRCPA .

[ 3 ] A Restraint Order must set a date for a disposal hearing and must be served on the Respondent. At a disposal hearing the Court must determine whether the restrained property was an instrument of illegal activity, what interest the Respondent has in the property, and whether the Respondent is entitled to any of the property. After determining these substantive matters, the Court then directs whether the property is to be disposed of or returned. [ 4 ] In this case, the Restraint Order set a date and was served on all Respondents. Mr.

Tetrault, as owner of the truck, filed an Affidavit to support his position that the truck should be returned to him. He now applies to vacate the Restraint Order, judicially stay the disposal application, strike provisions in the VRCPA , obtain a declaration that his rights have been violated and obtain compensation and costs. [ 5 ] There are provisions in the VRCPA that permit a respondent to apply for a review of a Restraint Order prior to the disposal hearing. Mr. Tetrault did not do this, and instead appropriately raised argument regarding the validity of the VRCPA at the disposal hearing.

Counsel agreed that the substantive matters would be determined first, and a decision made subject to argument, if necessary, for remedies under the Alberta Bill of Rights , RSA 2000, c A-14 . [ 6 ] On the substantive matters, I determined that the truck is an instrument of illegal activity. I also found that Mr.

Tetrault failed to establish, on the balance of probabilities, that he did not know and would not reasonably be expected to know, that the restrained property was or was likely to be used in carrying out an illegal act. [ 7 ] For the reasons that follow, I find that the provisions of the VRCPA do not abrogate, abridge, or infringe any of the rights and freedoms in the Alberta Bill of Rights . In light of that finding, and my previous determination on the substantive matters, I need not consider Mr.

Tetrault’s contention that provisions in the VRCPA which limit the Minister’s liability for costs or damage should be declared inoperative. [ 8 ] The Alberta Bill of Rights prevents the construction or application of law from abrogating, abridging or infringing certain rights or freedoms. 1 [ 9 ] Mr. Tetrault contends that the grant of property rights 2 and the right to equality before and the protection of the law 3 override provisions of the VRCPA . A determination requires analysis of three questions: 1. Did the ex parte application for a Restraint Order follow due process of law? 2.

Are provisions in the VRCPA overly broad or vague such that they offend due process of law, or deprive Mr. Tetrault of equality before and protection of the law? 3. Do procedures in the VRCPA deprive Mr. Tetrault of the protection of the law? 1. Did the ex parte application for a Restraint Order follow due process of law? [ 10 ] I find that the ex parte application for a Restraint Order follows due process of law. [ 11 ] The VRCPA provides that an application for a Restraint Order, “...is to be made ex parte...” s. 19.3(2). Mr.

Tetrault contends that due process is procedural fairness, which requires that he be given notice of the application for a Restraint Order and be allowed to make representations prior to any order being granted. [ 12 ] The VRCPA was enacted to deter crime and to compensate its victims. Proceedings of this nature are civil, not criminal. Provincial civil forfeiture legislation is valid: Ontario (Attorney General) v Chatterjee , (2009), 242 CCC (3d) 129, 2009 SCC 19 .

[ 13 ] A Restraint Order is only granted on application by the Minister “...if the court is satisfied that there are reasonable grounds to believe that the property ... is an instrument of illegal activity...” (s. 19.4). [ 14 ] The effect of a Restraint Order is described in Alberta (Minister of Justice and Attorney General) v Pazder , 2010 ABCA 183 , where the majority stated: 12 ...the restraint order neither alters the substantive rights of the parties, nor creates or uncovers any new evidence that could be used to the respondent’s detriment (compared, for example, to a wiretap authorization or a search warrant).

The restraint order merely preserves the status quo to allow the court time to adjudicate on the substantive forfeiture or disposal issue. [ 15 ] The Court of Appeal also pointed out the common-sense necessity for the application to be ex parte : if notice was given, there is a very real risk that the property would be disposed of or hidden before the Court is able to make a ruling (para 12). [ 16 ] I find that the ex parte procedure is justifiable for these reasons: - There is a risk that the property will be disposed of or hidden. - The Restraint Order does not alter substantive rights. - The Restraint Order merely preserves the status quo. - The Restraint Order can only be granted by the Court, and only after employing a “reasonable grounds” test. [ 17 ] A justifiable civil process follows due process of law. 2.

Are provisions in the VRCPA overly broad or vague such that they offend due process of law, or deprive Mr. Tetrault of equality before and protection of the law? [ 18 ] I find that the provisions of the VRCPA are not overly broad or vague such that they offend due process of law, or deprive an owner of equality before the law. [ 19 ] Mr.

Tetrault contends that “overly broad” and “vague” provisions in the VRCPA provide the Minister with absolute and unfettered discretion to conduct seizures and disposal without judicial oversight; permit seizures and disposal without proof that the owner is implicated in illegal activity; and permit seizure and disposal even when the Minister knew or ought to know that the property the owner has no relationship to the illegal activity. [ 20 ] I find these arguments fail on a plain reading of the VRCPA . Some examples of the limits placed on the Minister include the following: a.

The Minister does not have absolute and unfettered discretion to conduct seizures and disposals because only the Court can grant a Restraint Order (s. 19.4(1)) or direct disposal of the property (s. 19.94(b)). b. In order to grant a Restraint Order, the Court must be “satisfied that there are reasonable grounds to believe that the property ... is an instrument of illegal activity” (s. 19.4(1)).

c. Even though the Court finds the property is an instrument of illegal activity, the Court may return the property to the owner/respondent if the Court finds that the owner/respondent: Has not been ... involved in or associated with carrying out an illegal act using, or associated with, the ... property, and did not know and would not reasonably be expected to know that ... property was or was likely to be used in carrying out an illegal act. (s. 19.9(3)(1)(b)(ii)) [ 21 ] The procedures to obtain a Restraint Order and a Disposal Order are clearly articulated.

The Minister is not given unfettered discretion to obtain the Orders. The jurisdiction of the Court to adjudicate relevant issues is plain and the tests to determine whether orders should be granted are clearly defined. The VRCPA is not vague. [ 22 ] In addition to this restrictive statutory language, there is a further safeguard because a Judge retains discretion to refuse a Disposal Order even if the Crown establishes that the property was used in the commission of an illegal act: Alberta (Minister of Justice and Attorney General) v Sykes , 2011 ABCA 191 . 3. Do procedures in the VRCPA deprive Mr.

Tetrault of the protection of the law? [ 23 ] I find that the procedures in the VRCPA do not deprive Mr. Tetrault of the protection of the law. [ 24 ] Mr. Tetrault contends that the VRCPA requires him to prove his “innocence” and violates his reasonable expectation of “privacy”, thus speaking of the VRCPA with the language used in criminal law.

He submits that the provisions which allow a Disposal Order without any charge or conviction (s. 19.9(8)(3)) and those which obligate him to file an affidavit, submit to cross-examination and satisfy an onus, deny him protection of the law. [ 25 ] Civil proceedings impose many obligations on respondents. These include requirements to file a defence; produce records; submit to questioning; and meet an onus to prove allegations. The procedures in the VRCPA are not unusual to civil proceedings. Similar procedures apply to the Minister as apply to Mr. Tetrault. I find that the procedural obligations imposed on Mr.

Tetrault do not deprive him of the protection of the law. Conclusion [ 26 ] Mr. Tetrault’s application under the Alberta Bill of Rights is dismissed. I therefore direct the restrained property be disposed of, and the proceeds from the disposal be paid to the Crown to be used for the purposes of making payments for grants, or as otherwise provided for under Division 2 of

Part 3 of the VRCPA . [ 27 ] Costs may be spoken to. Heard on the 24 th day of May, 2012.

Dated at the City of Lethbridge, Alberta this 27 th day of July, 2012. R.A. Jerke J.C.Q.B.A. Appearances: Alberta Justice Constitutional Law Rod Wiltshire for the Applicant Wahl Law Office Harry F. Wahl for the Respondents 1 Every law of Alberta shall, unless it is expressly declared by

an Act of the Legislature that it operates notwithstanding the Alberta Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared. ( Alberta Bill of Rights , s 2) 2 The right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; ( Alberta Bill of Rights , s 1(a)) 3 The right of the individual to equality before the law and the protection of the law; ( Alberta Bill of Rights , s 1(b))