Alberta (Justice and Attorney General) v. Echert, 2013 ABQB 314

Court of Queen ’ s Bench of Alberta Citation: Alberta (Justice and Attorney General) v. Echert, 2013 ABQB 314 Date: 20130523 Docket: 1203 03428 Registry: Edmonton Between: Alberta (Minister of Justice and Attorney General of Alberta ) Applicant - and - Radu Echert, Andrei Enica, Christina Caouette, Scotia Dealer Advantage Inc. and Chief of Police, Edmonton Police Service Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Russell Brown _______________________________________________________ I.

Introduction [ 1 ] The Minister of Justice and Attorney General for Alberta (the "Minister") applies under the Victims Restitution and Compensation Payment Act , SA 2001, c. V-3.5 for an order that certain restrained property [a 2007 BMW 323i (the "BMW"), a 2010 Hyundai Genesis (the "Hyundai") and $1,590.00 in Canadian currency (the "Cash")] be forfeited to Her Majesty the Queen in right of Alberta. [ 2 ] On March 1, 2012, Topolniski J of this Court granted a restraint order in respect of the BMW, the Hyundai and the Cash.

On April 11, 2012, Thomas J of this Court granted forfeiture of any interests of the Respondents Caouette and Chief of Police, Edmonton Police Service in the BMW, the Hyundai and the Cash. Neither of the Respondents Radu Echert and Andrei Enica have claimed an

interest in the Cash, and the Minister's application in respect of the Cash is unopposed. The Respondent Echert is the registered owner of the BMW. The Respondent Enica is the registered owner of the Hyundai and the Respondent Scotia Dealer Advantage Inc. is a secured creditor in respect of the Hyundai. II. Background The Evidence [ 3 ] The Minister relies principally upon the Affidavit of Constable Aaron Sauve, sworn February 29, 2012. Constable Sauve deposes to his experience in the following terms: I am employed as Peace Officer, with the City of Edmonton Police Service holding the rank of Constable, ... ...

I am a Constable in the Drug and Gang Enforcement Unit (EDGE) for the City of Edmonton Police Service. EDGE conducts investigations, surveillance and intelligence gathering involving organized crime groups and their members, as well as independent members of the drug trafficking community, whose criminal actions and behaviors influence the criminal landscape of Edmonton and the surround [ sic ] communities.

The crimes which are principally targeted involve drug trafficking (most commonly cocaine, methamphetamines and marihuana), illicit use, and/or possession of firearms and proceeds of crime, assaults and homicides. [ 4 ] Constable Sauve also deposes to the sources of the information contained in his affidavit: The information set out below was obtained through my direct involvement in the investigation described herein and is based upon information which I have personal knowledge of, or documents I have reviewed, or information I have received from other Peace Officers.

Where information is stated in this document to have been received by Peace Officers, I believe such information in each and every case to be true because the Peace Officers giving, receiving or relaying the information were acting in the execution of their duties as Peace Officers at the relevant time and, as such, were under a legal and moral obligation to relate only the truth in relation to the events perceived or transmitted by them, insofar as that was possible for them to do.

This includes data from police computerized information networks such as but not limited to Alberta Government records, such as Motor Vehicles Registry Information (MOVES) and the4 CPIC and JOIN criminal record information systems. … [ 5 ] Constable Sauve then deposes to surveillance conducted by various members of the Edmonton Police Service of activities involving the BMW and the Hyundai. Specifically, he deposes to events on two dates (February 10, 2012 and February 16, 2012) where the Respondent Enica was observed using the Hyundai.

Briefly summarized, 1. on February 10, 2012 he was observed by EDGE members meeting with the Respondent Echert and a third party, before driving the Hyundai to a parking lot where he entered another vehicle, then followed a third party (who "appear[ed] to be holding an object in his left hand as he retrieved his car keys") out of that vehicle into the Hyundai; and 2. on February 16, 2012 he was observed by EDGE members operating the Hyundai, picking up the Respondent Echert, then remaining in the Hyundai while the Respondent Echert twice exited the Hyundai (once to meet a female in a nearby parking lot to whom he is "observed handing something", and once to enter a truck that the Respondent Echert had flagged down). [ 6 ] He also deposes to events on February 16, 2012 where he personally observed the BMW.

Again, briefly summarized: 1. the BMW parked next to another vehicle, from which a male exited, entered the BMW and exited again 20 seconds later; and

2. the Respondent Echert later exited the driver side of the BMW, crossed the street, entered a residence and left in the BMW one minute later. [ 7 ] In respect of the described activities involving the Hyundai, Constable Sauve deposes that various identified police officers believed them to be "consistent with a drug transaction", and he deposes to his own (identical) belief.

As to the described activities involving the BMW, Constable Sauve deposes directly (that is, to his own belief) that what he described is "consistent with a drug transaction." In respect of all the events involving either vehicle, he further deposes: Based on my experience, typically most drug transactions are carried out in a similar fashion.

Drug transactions often involve a "meet" between people where drugs and/or money is exchanged within a short time frame. [ 8 ] In short, Constable Sauve's affidavit furnishes the following in respect of the activities of the Hyundai and the BMW: 1. hearsay evidence regarding activities specific to the Hyundai; 2. evidence (most of which is based on his own direct observations) regarding activities specific to the BMW; 3. hearsay evidence of other identified police officers and his own evidence attesting to a belief that the activities involving the Hyundai and the BMW are "consistent with a drug transaction"; and 4. evidence, "based on [his] experience", that "typically" most drug transactions are carried out in a similar fashion, often entailing a quick exchange. [ 9 ] Constable Sauve also deposes to two searches conducted on February 20, 2012 ("a

section 11 Controlled Drugs and Substances Act search warrant was executed") at the respective residences of the Respondents Enica and Echert. The search of the Respondent Enica's residence, located at 426, 17404-64 Avenue, Edmonton, began at 14:49 hours, and resulted in the recovery of 3.1 grams of soft cocaine hydrochloride, $110 in Canadian currency (folded in half and bound by an elastic), and "numerous additional indicia of drug trafficking" including sandwich bags, elastic bands and cell phones.

The search of Respondent Echert's residence, located at 323, 5053-199 Street, Edmonton, began at 15:25 hours, and resulted in the recovery of 3.7 grams of crack cocaine (found during a search of his person), 447 grams of cocaine hydrochloride, $550 in Canadian currency (sitting loose), $880 in Canadian currency (folded in half and bound by an elastic), and "numerous indicia of drug trafficking" including sandwich bags and cell phones. [ 10 ] Constable Sauve deposes that the BMW, the Hyundai and the Cash are "instruments of illegal activity, in that they were used or are likely to be used in carrying out an illegal act, namely drug trafficking … " and that he has "reasonable grounds to believe that [the Cash] has been acquired by illegal means, and was acquired or derived indirectly through an illegal act … ." [ 11 ] The Respondents Echert and Enica were both charged with possession for the purpose of trafficking, contrary to Section 5(2) of the Controlled Drugs and Substances Act , SC 1996, c. 19.

The Respondent Enica was also charged with possession of property obtained by crime under

Section 355 (

b) of the Criminal Code . There is no evidence before the Court of the current disposition of these charges. [ 12 ] Each of the Respondents Echert and Enica have participated fully in this proceeding by furnishing an affidavit, submitting to cross-examination thereon, and making submissions at the property disposal hearing. Essentially, they each deny having sold controlled drugs to anyone and having used their vehicle for any illegal act. They each offer explanations, which were challenged under cross-examination, for the activities observed during surveillance. The Minister submits that their explanations (and particularly the Respondent Echert'

s) are unworthy of belief. It is, however, unnecessary for me to canvass nor comment upon them here, since - as I will explain - the disposition of this application turns on the Minister's evidence (and specifically on Constable Sauve's affidavit).

The Victims Restitution and Compensation Payment Act [ 13 ] The purpose, constitutionality of, and process enacted in, the Victims Restitution and Compensation Act (the " Act ") were helpfully summarized by Slatter JA (joined by Hunt JA) of our Court of Appeal in Alberta (Minister of Justice & Attorney General) v. Pazder , 2010 ABCA 183 at paras. 9-13 and 18-19 : The basic objective of the Victims Restitution and Compensation Payment Act is to allow for the seizure and disposition of property that has been implicated in criminal activity.

When the seized property is disposed of, the proceeds can be used to compensate the victims of the particular crime with which the property was associated, and any surplus is paid to the Crown to be used to compensate victims of crime generally. In Chatterjee v. Ontario (Attorney General) , [2009] 1 SCR 624 , 2009 SCC 19 the Court considered the constitutionality of similar (but in some respects different) legislation in Ontario. In Chatterjee at paras. 3, 23 the Court observed: ... Crime imposes substantial costs on provincial treasuries.

Those costs impact many provincial interests, including health, policing resources, community stability and family welfare. It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot use deterrence to suppress it. ... In essence, therefore, the [ Act ] creates a property-based authority to seize money and other things shown on a balance of probabilities to be tainted by crime and thereafter to allocate the proceeds to compensating victims of and remedying the societal effects of criminality.

The practical (and intended) effect is also to take the profit out of crime and to deter its present and would-be perpetrators. The procedures and burdens of proof in the Act are civil in nature: Chatterjee at para. 21 . As recently amended, the Act deals with the seizure and disposal of two types of property: (a) "property acquired by illegal means", and (b) "instruments of illegal activity" that were used to carry out an illegal act. In this appeal the seized cash falls into the former category, and the seized Silverado falls into the latter.

The statutory procedures dealing with the two different types of property are parallel, so they can be discussed and analyzed concurrently. The procedure in the Act begins with an application by the Minister for a "restraint order" (ss. 4 and 19.3). These applications must be made ex parte (ss. 4(2) and 19.3(2)). Obviously this is because of the risk that the property will be disposed of or hidden before the court can adjudicate on its forfeiture.

The ex parte procedure is also justifiable because 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. If the court is satisfied that the Minister has shown reasonable and probable grounds to believe that the property is associated with crime, the restraint order can be granted (ss. 5 and 19.4).

The restraint order prevents the disposal of, and allows a civil enforcement agency to take possession of the property pending the Minister's application for disposal. The restraint order must also set a date, not later than 45 days from its granting, for the commencement of a "property disposal hearing" ( ss. 5(2) and 19.4(2)). …

The structure of the Act tends to direct the analysis towards the ultimate substantive issue, namely whether the property was associatedwith criminal activity, and away from technical arguments about whether the restraint order should have been granted. In particular, thefollowing aspects of the statute's structure lead to this conclusion:

a) the compulsory filing of an affidavit, and submission to cross-examination, before review [...],

b) the ability to go directly to the disposal hearing if the record is the same or substantially the same [...],

c) the anticipated timing of the hearings, such that the two hearings will often be heard together [...], and

d) the narrowness of the appeal rights [...]. This focus is likely because, as previously noted, the restraint order does not alter the substantive rights of the parties, and merelypreserves the status quo to allow the court time to adjudicate on the substantive forfeiture or disposal issue. At the property disposal hearing, the court is to determine if the Minister has demonstrated on a balance of probabilities that therestrained property was acquired by an illegal means, or was an instrument of illegal activity. The Act specifically places an onus on theMinister to demonstrate the illegality of the property (ss. 13(1)(

a) and 19.93(1)(a)), and an onus on the claimant to establish that he or shehas an interest in the property, and that he or she did not participate in or know of any illegality respecting the property (ss. 13(1)(

b) and19.93(1)(b)). The court can direct the disposition of the property, or order that it be returned to its rightful owner (ss. 14 and 19.94). Theproceeds can be used to compensate the victims of the particular crime with which the property was associated, and any surplus is paid tothe Crown to be used to compensate victims of crime generally (ss. 17 and 19.97). [14] As to the statutory scheme, then, the Act identifies two routes by which property can be "implicated in criminal activity" suchthat this Court may order forfeiture.

The Minister may prove that property was "acquired by illegal means" (as defined in Section 1(3) ofthe Act), or that property is an "instrument of illegal activity" (as defined in Section 1(3.1) of the Act). Here, the Minister seeks forfeitureof the Cash under the first category, and of the BMW and the Hyundai under the second category. The property in question is firstrestrained (as it was in this case by the order granted by Topolniski J on March 1, 2012), following which the Minister may proceed to aproperty disposal hearing, which is the step represented by this application.

Here, as the Court of Appeal explained in Pazder, the onusrests with the Minister to demonstrate (in the case of the Cash) that it was acquired by illegal means, or (in the case of the BMW and theHyundai) that they were each an instrument of illegal activity.

If the Minister discharges that onus to a balance of probabilities, it thenfalls to the respondent who claims an interest in the property to establish to a balance of probabilities the origin, nature and extent of itsinterest in the property, that the respondent was not involved in the commission of the illegal act, and that the respondent did not knowand would not reasonably be expected to know that the property had been acquired by illegal means or was or was likely to be used incarrying out an illegal act. [15] Even though a respondent's onus is not triggered until the Minister discharges his onus to show that the property was acquiredby illegal means or was an instrument of illegal activity, keeping silent in the interim is, practically, not an option for a respondent.

Sections 11(2) and 19.91(2) provide that a respondent wishing to make a claim in respect of restrained property must file and serve anaffidavit setting out the origin, nature and extent of its interest in the property and any other matters related to its claim to the restrainedproperty.

As Belzil J pointed out in this Court's decision in Pazder (2009 ABQB 450 at paras. 26, 27 and 32), a respondent who electsnot to answer the Minister's account or to explain the source or use of the impugned property runs the risk that the Court "will concludethat the Minister has satisfied the onus imposed upon him whereas the [respondent] has not." [16] This practical compulsion forces the respondent to choose between remaining silent (at the risk of losing rights in property) orspeaking (thereby subjecting oneself to cross-examination and the risk of potential self-incrimination).

While it is possible that evidencegiven under the Act's processes might be protected as a statutorily compelled statement (R. v. White, (SCC), [1999] 2SCR 417), this Court has yet to consider that question. For this reason, I am in sympathy with the suggestion of Macleod J in Alberta(Justice and Attorney General) v.

Chau, 2010 ABQB 758 at para. 4 that, where the Crown pursues criminal charges and they remainunresolved, or where (as here) the Minister puts no evidence before the Court about the disposition of charges that have been laid, theright to silence enjoyed by the accused ought to militate in favour of the Minister exercising his discretion to seek under Sections 3(3)

and 19.2(3) an order staying proceedings under the Act pending exhaustion of criminal proceedings. (See also Alberta (Minister of Justice and Attorney General) v. Clarke , 2009 ABQB 518 at para. 6 ; Alberta (Justice and Attorney General) v. To , 2010 ABQB 648 at paras. 11-12 ; and Alberta (Justice and Attorney General) v. Lee, 2012 ABQB 136 at paras. 33-38 .) [ 17 ] This concern does not arise here, however.

As I have already described, both the Respondents Echert and Enica have chosen to participate fully in the process. [ 18 ] Returning to the structure of the Act 's process, the range of orders which this Court might grant were canvassed by Ritter JA for our Court of Appeal in Alberta (Minister of Justice and Attorney General) v.

Sykes , 2011 ABCA 191 at para. 17 : Under [the Act ], if a judge determines that the property was not used to carry out an illegal act, then the judge must lift the restraint order and return the property (s. 19.94(a)(i)). [The Act ] then appears to give a reviewing judge discretion where the judge finds that the property was used in carrying out an illegal act, stating that the judge may grant a disposal order (s. 19.94(b)).

Further, the [the Act ] continues to grant wide discretion in s. 19.98 where it states that a judge, in granting a property disposal order, may include various orders, including one subject to any terms and conditions he or she considers appropriate, or direct that the property be returned to or turned over to a respondent (s. 19.98(1)). (Emphasis in original.) [ 19 ] One final provision - Section 52(1) of the Act - merits special mention.

It gives the Court a discretion to accept hearsay evidence, by providing that evidence furnished in a legal action under the Act may be based on the affiant's personal knowledge, or on matters "that come within the knowledge of … the affiant based on information and belief." ( Clarke , at para. 3 .) It is on this authority that Constable Sauve's affidavit, replete as it is with hearsay evidence, is relied upon by the Minister.

Indeed, it would likely be highly impractical for the Minister, in discharging his onus, to be compelled to construct an evidentiary basis for forfeiture consisting exclusively of matters coming within the affiants' personal knowledge.

In the case of the Hyundai's and BMW's described activities, for example, the narrative would have to be cobbled together from the partial and diffuse sworn observations of at least six police officers. [ 20 ] While it therefore makes some practical sense for the Minister to have some latitude in presenting the case for forfeiture, the evidence presently before the Court - even allowing for that statutorily granted latitude - is deficient. I now turn to those concerns. III.

Evidentiary Deficiencies in the Case for Forfeiture [ 21 ] Again, even if the Court allows for the evidentiary latitude which the Act affords the Minister at the Court's discretion in making the case for forfeiture, Minister's case here suffers from evidentiary deficiencies in two respects: (1) the connection between the subject motor vehicles and illegal activity rests upon irrelevant (and undemonstrated) claims by Constable Sauve of "experience"; and (2) the source of Constable Sauve's information regarding the searches is not specified, nor does he depose to his belief in such information.

Constable Sauve's Experience [ 22 ] The Minister's burden in respect of the BMW and the Hyundai is, it will be recalled, to prove to a balance of probabilities that they were each an instrument of illegal activity. Section 1(3.1) of the Act provides that this is satisfied where, inter alia , they were each used in carrying out an illegal act that, in turn, resulted in or was likely to or was intended to result in the acquisition of other property or in bodily harm to any person.

Having met this burden, the Minister is able to demonstrate the necessary connection between the subject motor vehicles and illegal activity generally and, on the facts of this case, between the subject motor vehicles and the results of the searches conducted at the residences of the Respondents Echert and Enica. [ 23 ] The relevant portions of Constable Sauve's affidavit depose to the described activities involving the BMW and the Hyundai, to his (and others') belief that those activities are "consistent with a drug transaction", and to his explanation for that belief ("based on

[[his] experience, typically most drug transactions are carried out in a similar fashion"). The Court does not have the basis for the otherpolice officers' beliefs, related (as

Section 52 of the Act expressly permits) via Constable Sauve's sworn statement. It does, however,have Constable Sauve's belief, based upon his "experience". That experience therefore forms the sole basis for connecting the BMW andthe Hyundai to illegal activity - which connection, it bears emphasizing, is a precondition to the order for forfeiture that the Ministerseeks.

Since establishment of that connection enables a taking of the Respondents' rights in property, the Minister must demonstrate thesufficiency of the connection with evidence that is admissible, cogent and compelling. (Alberta (Justice and Atorney General) v. Yousif,2010 ABQB 81 at para. 18.) [24] There are two difficulties in relying upon Constable Sauve's experience to make out the necessary connection between theBMW and the Hyundai to illegal activity.

First, while Constable Sauve relies upon that experience (which prompts the Minister to askthis Court to rely upon it) in finding that connection, he does not describe his experience. He merely deposes to his status as a constablein the Drug and Gang Enforcement Unit (EDGE) for the Edmonton Police Service, then proceeds to describe EDGE activities. He doesnot, however, depose to his length of service, whether on the Edmonton Police Service or on EDGE. He does not depose to the depth ofhis experience. In how many surveillance operations has he participated? How many arrests? How many searches and seizures?

Inshort, what is this "experience" to which he deposes? He does not say. [25] On a (relatively) minor but related point, Constable Sauve's statements purporting to connect the BMW and the Hyundai toillegal activity are also unsatisfactory to meet the Minister's onus of proving to a balance of probabilities that they were each instrumentsof illegal activity. His belief, specifically, is that his observations are "consistent with a drug transaction" since, "based on hisexperience", most drug transactions are carried out in a similar fashion with a quick exchange.

This statement falls well short of meetingthe Minister's burden. Even if Constable Sauve's experience had been demonstrably sufficient to allow him to make that statement, andeven though the activity described may be "consistent with drug trafficking”, that is not the same thing as saying that it probably wasdrug trafficking.

Again, given that the respondents' rights in property which they claim as theirs is at stake, the quality of the Minister'sevidence should be rigorously measured against his burden. [26] Even were Constable Sauve's "experience" and his other statements clarified, there is a more fundamental problem in relyingupon Constable Sauve's experience to establish the necessary connection between the subject motor vehicles and criminal activity. Putsimply, the Court may not do so. [27] In R v.

Graat, (SCC), [1982] 2 SCR 819, Dickson J (as he then was) for the Supreme Court set theboundaries of admissibility to two kinds of opinion evidence, one given by lay witnesses and the other by expert witnesses. In sum,while lay witnesses may give opinion evidence when there is no other practical or meaningful way for them to convey the informationthey possess, expert witnesses may give opinion evidence where they have special training or experience that makes their observationsrelevant and worthwhile. (David M.

Paciocco & Lee Stuesser, The Law of Evidence, 6th ed. (Irwin Law, 2011) at 181.) [28] Constable Sauve's evidence has not been tendered as expert opinion evidence, nor has he been qualified for that purpose. Ifhis evidence based on his "experience" of a connection between the subject motor vehicles and criminal activity is to be admitted for thetruth of that connection, it must be as admissible as the opinion evidence of a lay witness. The prerequisites established in Graat foradmitting such opinion evidence are well known.

The opinion must, inter alia, be one that "ordinary people with ordinary experience"are able to form. (For example, the police officer in Graat was able to opine on degree of intoxication, because anyone's ordinaryexperience would allow them to form an opinion on that matter.) The opinion must also be merely a compendious mode of stating (at837) "facts [that] were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly arranged" - thatis, facts that are too subtle or complicated to be narrated as effectively without resort to an opinion. [29] Constable Sauve's opinion, based on his experience, does not meet these requirements.

The ordinary experience of laypersonswould not, I find, allow them to form the opinion that Constable Sauve expresses regarding the activities involving the BMW and theHyundai. This is a matter where specialized testimony giving expert guidance is necessary for a fact-finder to properly understand therelevant facts.

Were it otherwise, there would be no reason for the Court to hear expert evidence (as it does) in criminal trials connectingwitnesses' observations of activity to drug trafficking. (While the Divisional Court of the Ontario Superior Court of Justice Ontario(Attorney General) v. $9616.98 in Canadian Currency (In Rem), 2011 ONSC 3820 did not consider expert evidence to be necessary, theevidence in that case also included the smell of marihuana coming from the car, and recovery from the car of garbage bags and toolssuitable for use in a marihuana grow operation.) Nor would there be much basis for much of the Canadian jurisprudence under Sections8 and 9 of the Canadian Charter of Rights and Freedoms (the "Charter") relating to the purposes for which an officer's "experience" canbe used to support detentions and searches following surveillance operations of vehicles whose occupants are suspected of conductingdrug transactions. (R. v.

Storrey, (SCC), [1990] 1 SCR 241; R. v. Wilson, 2012 BCCA 517.) The connection betweenthe observed activities involving the BMW and the Hyundai not being the sort of matter upon which laypersons of ordinary experiencecan opine, it is not the sort of thing that Constable Sauve's experience allows him to opine. As Dickson J stated in Graat (at para. 60) inrespect of opinions from persons who have not been qualified as experts, "[t]he 'opinion' of the police officer is entitled to no specialregard."

[ 30 ] Nor is Constable Sauve's opinion necessary as an abbreviated version of his factual observations - that is, as a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to an opinion. Indeed, the entire narrative of the activities involving the BMW and the Hyundai is already contained in Constable Sauve's affidavit. There was no need for him to abbreviate it.

Moreover, for the purpose of meeting this requirement, an opinion that those activities are "consistent with a drug transaction" is not the same thing as an opinion that someone is too drunk to go skiing or to drive a car.

Whereas the statement that someone was "too drunk to drive" is merely an economical way of conveying subtle or complicated information about the state of the driver that the witness may not have the time or descriptive powers to give, the statement that someone or something was involved in activity "consistent with a drug transaction" does not encapsulate for the listener anything about the person's or thing's activities. Rather, it is a conclusory statement, the basis for which would be a mystery to the listener.

Of course, it would still remain a mystery to the listener even after the basis for the statement is explained - which also goes to affirm the earlier concern as to why, when opinion evidence falls outside the product of ordinary experience (as Constable Sauve's does here), it may only be received from properly qualified experts. [ 31 ] On this basis alone, I dismiss the Minister's application in respect of the Hyundai and the BMW. [ 32 ] This does not mean that, in support of future applications, the Minister cannot rely upon police officers' experience in proving the necessary connection between property and illegal activity.

Rather, where he is relying upon a police officer's opinion that is based upon his or her experience, the police officer should be properly qualified as an expert (as it appears the police officer relied upon in Pazder was). Again, it bears reiteration that, the evidence regarding the connection between the property and illegal activity being the basis for the forfeiture order that the Minister seeks, the Minister's evidence must be of an unimpeachable quality.

Constable Sauve's Evidence regarding the Searches [ 33 ] Constable Sauve's evidence deposes to two searches, commenced 36 minutes apart, at two different addresses in Edmonton (the residences of the Respondents Echert and Enica). It is conceivable that Constable Sauve was present during one or both of the searches, but he does not say so. Rather, "the Edmonton Police Tactical section" (of which he does not state that he is a member) executed both search warrants.

He describes "police" or specific named officers as having "located" some items, while other items are described in the passive tense of having been "found" or "located". I infer that the entirety of Constable Sauve's evidence regarding the searches is hearsay. [ 34 ] By virtue of

Section 52, that is not necessarily fatal, since this Court has a discretion to grant a forfeiture order where the Minister's case is built entirely on hearsay evidence. That said, it is a discretion. Furthermore, such hearsay evidence as the Minister advances must conform to the boundaries of other rules regarding the admission of hearsay evidence. The Minister must put his best foot forward.

Here, he has not done so. [ 35 ] Rule 13.18 of the Rules of Court states: "[i]f an affidavit is sworn on the basis of information and belief, the source of the information must be disclosed in the affidavit." (Emphasis added.) ( Can-Cell Industries Inc. v.

Lippa , 2010 ABCA 409 para. 6 .) Further, the Court may only have regard to pieces of information which the deponent says he believes. (Stevenson & C ô t é , Alberta Civil Procedure Handbook 2012 at 13-43.) Constable Sauve must therefore disclose the source of his information and depose to his belief in that information. [ 36 ] The closest Constable Sauve comes to disclosing the source of the information regarding the searches conducted at the Respondents Echert's and Enica's respective residences is the generic statement at the outset of his affidavit, where he deposes that all the contents of his affidavit "are based upon … documents I have reviewed, or information I have received from other Peace Officers." He then adds: "[w]here information is stated in this document to have been received by Peace Officers, I believe such information in each and every case to be true" and that this applies to "data from police computerized information networks … ." In his account of the searches, however, Constable Sauve's information is not "stated … to have been received by Peace Officers", which is the precondition he specifies for his belief in the truth of such information.

Both searches are described, without attribution, and without a statement affirming Constable Sauve's belief in the truth of the information he recounts about the searches. [ 37 ] It might be argued that Constable Sauve ’ s generic attribution of all information in his affidavit to "documents" and "other Peace Officer" comprise sufficient attribution for the purposes of Rule 13.18 of the source of his information regarding the searches.

The problem would remain, however, of demonstrating his belief in that information.

While Constable Sauve deposes that his belief inthe truth of his information arises where it is stated to have been received by Police Officers, none of his information regarding thesearches is stated to have been received by Police Officers. [38] In other words, while it might be implicit from Constable Sauve’s evidence that his information about the searches wasreceived from other police officers, his own statement limits his profession of belief in his information to information expressly stated tobe received from other police officers.

On that basis alone, I find that the contents of Constable Sauve's evidence regarding the searchesdo not met the requirements of Rule 13.18, and that they cannot assist the Minister in discharging his burden of proving either that theBMW and the Hyundai were instruments of illegal activity, or that the Cash was acquired by illegal means. [39] On this basis, I also dismiss the Minister’s application in respect of the Cash. [40] Further, and bearing in mind the stakes (forfeiture of rights in property) and my earlier direction that the Minister's burden forproving a probable connection between the property and illegal activity ought to be discharged with the best possible evidence, as ageneral rule the source of his deponents' information should be identified with particularity among (in this case) different instances ofsurveillance and of searches and seizures.

For reasons of practicality that have already been mentioned, the Minister has been granted ameasure of latitude in marshalling his case. Because that case seeks forfeiture of rights in private property, the Minister ought to beconfined to the strict bounds of that latitude. IV. The Alberta Bill of Rights [41] The Respondent Echert submits that the ability to defeat his interest in personal property "based solely on mere suspicion andconjecture" would be contrary to "the Fundamental Principles of Justice and the Respondent's rights to enjoyment of property asenshrined in the Alberta Bill of Rights, RSA 2000, c.

A-14. [42] While Section 4(1) of the Alberta Bill of Rights provides that the determination of a question of whether a statute infringesthe Alberta Bill of Rights requires notice to the Minister, I find that the raising of this issue in the Respondent Echert's writtensubmissions provided sufficient notice. Moreover, the matter was canvassed in the hearing before the Court, and the Minister did nottake the position that proper notice had not been furnished. [43] Several points serve as a response to the Respondent Echert's submission.

First, a case "based solely on mere suspicion andconjecture" is insufficient to permit a forfeiture order under the Act. To persuade this Court to exercise its discretion to order forfeiture ofhis interest in the BMW, the Minister must prove to a balance of probabilities that the BMW was an instrument of illegal activity. Thisrequires that the judge "scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged eventoccurred." (F.H. v. McDougall, 2008 SCC 53 at para. 49).

Inasmuch as "suspicion" without more does not rise to any level of proof, andas "conjecture" is by definition unproven, the Respondent Echert's concern is unfounded. [44] Second, I take the Respondent Echert's reference to "the Fundamental Principles of Justice" as an invocation of

Section 7 ofthe Charter. An argument based upon the Charter generally or

Section 7 in particular is not open to the Respondents in this case or inanswer to any other application brought by the Minister under the Act.

Unlike the constitutional documents of most Westernconstitutional democracies, the Constitution of Canada enshrines no guarantee against the forcible acquisition by the Crown of privateproperty. [Rachelle Alterman, Takings International: A Comparative Perspective on Land Use Regulations and Compensation Rights(Chicago: American Bar Association, 2010); Karen Horsman & Gareth Morley (eds), Government Liability: Law and Practice (Canada Law Book, 2012, looseleaf) at 4-1; Richard W. Bauman, "Property Rights in the Canadian Constitutional Context" (1992), 8SAJHR 344; and Van Giessen v.

Montana Alberta Tie Ltd., 2011 ABQB 219 at para. 28.] Further, appellate courts have consistentlyrejected arguments that

Section 7 (and, for that matter,

Section 8) of the Charter enshrine protection against uncompensated takings ofrights in property in the same manner as, for example, the 5th Amendment to the Constitution of the United States. [Irwin Toy v. Quebec(A.G.), (SCC), [1989] 1 SCR 927; Becker v. Alberta (1983), 1983 ABCA 161 , 148 DLR (3d) 539, 45 AR 36(CA); A&L Investments Ltd. v. Ontario (Minister of Housing) (1997), (ON CA), 152 DLR (4th) 692, 36 OR (3d) 127(CA), leave to appeal to SCC dismissed (1997), 155 DLR (4th) x, 111 OAC 399n; Clitheroe v.

Hydro One Inc. (2009), 96 or (3D) 203 atparas. 73-77 (SCJ), aff'd 2010 ONCA 458, leave to appeal dismissed, [2010] SCCA No. 316; and New Brunswick v. Estabrooks PontiacLtd. (1982), (NB KB), 135 D.L.R. (3d) 307, 40 NBR (2d) 42 (QB), aff'd (NB CA), 144 DLR (3d)21, 44 NBR (2d) 201 (CA).]

[45] The absence of written constitutional limitations on the Crown's power to take is not, however, the end of the inquiry, sincecertain common law protections of property rights against the Crown are preserved by

Section 26 of the Charter ("[t]he guarantee in thisCharter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist inCanada"). The common law rule provides that, absent express legislative language directing otherwise, courts will order compensationto owners of property rights taken by the state. [Manitoba Fisheries Ltd. v. Canada, (SCC), [1979] 1 S.C.R. 101; BritishColumbia v. Tener, (SCC), [1985] 1 S.C.R. 533; Canadian Pacific Railway Co. v.

Vancouver (City), 2006 SCC 5;Horsman & Morley, Government Liability: Law and Practice at 4-1 to 4-65.] [46] The Respondent Echert does not rely upon the common law protection, however. He relies upon the Alberta Bill of Rights. In Sykes, where the respondent had also relied upon on the Bill of Rights as overriding the Minister's entitlement to seek civil forfeitureunder the Victims Restitution and Compensation Payment Act, our Court of Appeal declined to determine the matter.

While I have foundfor the Respondents here on the basis that the evidence relied upon by the Minister does not satisfy his burden of showing the necessaryconnection between the property and illegal activity, in order to furnish guidance as to the application of the Alberta Bill of Rights toapplications for restraint and forfeiture under the Act, I will consider the matter here. [47]

Section 1(

a) of the Alberta Bill of Rights affirms "the right of the individual" to the "enjoyment of property" and "the right notto be deprived thereof except by due process of law."

Section 2 provides that, unless a law of Alberta is expressly declared to operatenotwithstanding the Alberta Bill of Rights, it shall not be construed or applied so as to "abrogate, abridge, or infringe or to authorize theabrogation, abridgement or infringement of its rights guarantees." [48] The protection afforded by

Section 1(

a) is of no practical assistance to the Respondents here, since the scope of a "dueprocess" guarantee is procedural, not substantive. This suggests that the Alberta Bill of Rights gives holders of property rights lessprotection than even the modest protections afforded by the common law.

Further, the meaning of that procedural protection, both as itappears in the Alberta Bill of Rights and in the identical protection which appears in the Canadian Bill of Rights, SC 1960, c. 44, hasbeen narrowly confined such that the Crown is immune from liability under either the Alberta Bill of Rights or the Canadian Bill ofRights so long as the impugned measure is effected by a validly enacted statute. [R. v. Martin (1961), (AB CA), 35WWR 385 (ABCA) at 398-99: "due process" means "in accordance with the common and statute law as it exists in any particular time"; Authorson v.

Canada (Attorney General), 2003 SCC 39 , [2003] 2 SCR 40 at 53: "[t]he only procedure due any citizen ofCanada is that the proposed legislation receive three readings in the Senate and House of Commons and that it receive Royal Assent. Once that process is completed, legislation within Parliament's competence is unassailable."; Harrison v.

Carswell, (SCC), [1976] 2 SCR 200 at 219: "Anglo-Canadian jurisprudence has traditionally recognized … the right of the individual to theenjoyment of property and the right not to be deprived thereof, or any interest therein, save by due process of law. … If there is to be anychange in this statute law … such a change must be made by the enacting institution, the Legislature …."; Lupien v. Alberta (DriverControl Board) (2001), 2001 ABQB 511 , 295 AR 291 (QB); Marr v. Marr Estate (1989), (AB KB), 63DLR (4th) 500 (ABQB); Moore v. Edmonton (City) (1997), (AB KB), 199 AR 346 (QB); R. v.

Pennington (1981),1981 ABCA 190 , 128 DLR (3d) 746 (ABCA); and Trelenberg v. Alberta (Minister of the Environment (1980), (AB KB), 31 Alta LR (3d) 353 (QB).] [49] No suggestion was put to me that the Act was invalidly enacted, and I therefore find that the Alberta Bill of Rights offers noprotection to the Respondents to this application, or to respondents to applications under the Act generally. [50] Even where the Alberta Bill of Rights' narrow protection is of use to a holder of property rights [as it was in Byron HillsResources Ltd. v.

Alberta (Minister of Sustainable Resource Development) (2009), 2009 ABQB 292 , 473 AR 71 (QB)], theLegislature can preclude application of the Alberta Bill of Rights by expressly declaring the enabling provision to operatenotwithstanding the Alberta Bill of Rights. While

Section 47 of the Act provides that "no action lies or order or judgment may be madeagainst the Crown, the Minister, any employee of the Crown or any person acting on behalf of the Crown for anything done or omitted tobe done under this Act …", it does not contain the express declaration which the Alberta Bill of Rights requires. In view of theexceedingly limited scope of the underlying protection, however, this deficiency is of no consequence, at least on an application underthe Act. [51] It may be that the Alberta Personal Property Bill of Rights, RSA 2000, c.

A-31 provides a greater measure of protection, atleast for holders of rights in chattels, where those chattels are made the subject of proceedings under the Act. As neither the RespondentEchert nor the Respondent Enica rely upon it, I will not consider it here. V. Conclusion

V. Conclusion [ 52 ] Constable Sauve's evidence as to the experience that leads him to conclude that the observed activities involving the BMW and the Hyundai were consistent with drug transactions, and his evidence regarding the searches themselves, are unavailable to the Minister in discharging his onus.

In the absence of (1) admissible, properly qualified expert opinion evidence from Constable Sauve or any other witness that the observed activities involving the BMW and the Hyundai probably constituted drug transactions; and (2) evidence from Constable Sauve or any other witness of the source of and his belief in the information regarding the searches, the Minister has not discharged his burden of showing either that the BMW and Hyundai were instruments of illegal activity or that the Cash was acquired by illegal means. [ 53 ] The Minister submits that his case may be salvaged by evidence obtained from the cross-examination of the Respondents Echert and Enica.

In particular, he relies upon the Respondent Echert's statement that "I got founds with drugs in my vest" and the Respondent Enica's acknowledgment that his residence "got raided" and his explanation for the source of the drugs found there (which, the implicit argument appears to be, constitutes an admission that drugs were found in his residence). Both Respondents submit that the Minister must discharge his onus based on his own evidence, and not on theirs. I agree with the Minister that the evidence given by the Respondents can form, where he chooses to rely upon it, part of his case.

That said, the Respondents ’ evidence does not help the Minister here. [ 54 ] Even if the Respondents' statements state what the Minister submits they state, without Constable Sauve's evidence connecting the BMW and the Hyundai to the drugs, their statements would not support a forfeiture order in respect of anything other than the Cash (which the Respondents do not oppose). Further, their statements, read closely, do not support a forfeiture order in respect of the Cash.

The Respondent Echert's statement "I got found with drugs in my vest" is, viewed in the light of the question posed to him, an acknowledgment that this is an allegation against him, and not an acknowledgment that he had drugs in his vest. The full text of his response makes this clear: "Yeah, that's what I says. I was, I got found with drugs in my vest." Similarly, the Respondent Enica's statement does not acknowledge the presence of drugs in his residence. [ 55 ] I have already dismissed the Minister ’ s application for forfeiture in respect of the Hyundai, and BMW and the Cash. I further revoke under

Section 19.94 the restraint order granted by Topolniski J on March 1, 2012 in respect of the BMW and the Hyundai, and I direct that the BMW be returned to the Respondent Echert and that the Hyundai be returned to the Respondent Enica. [ 56 ] The Minister requests an order requiring the Respondents to compensate the Minister for storage fees paid in respect of the BMW and the Hyundai, noting that his counsel had considerable difficulty arranging for cross-examination of the Respondent Echert. I decline to order storage fees.

Each of the parties assumed a burden when the Minister sought and obtained the restraint order: the Respondents lost the use of their private property, and the Minister incurred storage costs.

Since there is no means by which I can direct the Minister to compensate the Respondents for the costs associated with their burden under the restraint order, I make no order relieving the Minister from the costs of his own burden. [ 57 ] While the Respondents do not oppose the Minister's application in respect of the Cash, I find that his evidence does not prove its connection to illegal activity and I therefore make no order in respect of the Cash. The Cash might be properly disposed of by an application under Division 9 of

Part 6 of the Rules of Court for an interpleader order, or under

Section 490 of the Criminal Code , or by any other method the Minister identifies as appropriate. [ 58 ] I also direct that all parties shall bear their own costs. Heard on May 7, 2013. Dated at Edmonton, Alberta on May 23, 2013

Russell Brown J.C.Q.B.A. Appearances: Nicole Pfeifer Alberta Justice - Civil Litigation for the Applicant K. B., Sinn, Student-at-law Chadi & Company for the Respondent Radu Echert Paul Moreau Moreau & Company for the Respondent Andrei Enica