Alberta (Justice and Attorney General) v. Cardinal, 2013 ABQB 407

Court of Queen ’ s Bench of Alberta Citation: Alberta (Justice and Attorney General) v. Cardinal, 2013 ABQB 407 Date: 20130717 Docket: 1103 09345 Registry: Edmonton Between: Minister of Justice and Attorney General for Alberta Applicant - and - Bruce James Cardinal and the Chief of Police, Edmonton Police Service Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Thomas W. Wakeling _______________________________________________________ I.

Introduction [ 1 ] On June 2, 2011 the Edmonton Police Service arrested Bruce James Cardinal for trafficking in a controlled substance contrary to the Controlled Drugs and Substances Act , S.C. 1996, c. 19, s. 5(2) ( “ Controlled Drugs and Substances Act ’ ). A search of Mr. Cardinal and the 2005 Chrysler 300 Mr.

Cardinal was driving ( “ 2005 Chrysler 300" or “ Chrysler ” ) revealed that he had $1,625 in his pockets and thirteen dilaudid hydromorphone pills with a street value of approximately $520, two working cell phones containing text messages the police officers described as drug-related texts and other items they believed were evidence Mr. Cardinal was a drug trafficker in his car.

[ 2 ] On June 10, 2011 the Court, pursuant to the Victims Restitution and Compensation Payment Act , S.A. 2001, c. V-3.5 s. 5(1) [1] ( “ Victims Restitution and Compensation Payment Act ” or the “ Act ” ), granted a restraint order against Mr. Cardinal ’ s 2005 Chrysler 300 and the $1,625. [ 3 ] On June 19, 2011 the Minister of Justice and Attorney General for Alberta ( “ Minister ” ) served Mr.

Cardinal with the restraint order and an originating application for a property disposal hearing under the Act to be heard on July 21, 2011. [ 4 ] The July 21, 2011 hearing was adjourned and, for a number of reasons, the property disposal hearing did not take place until June 27, 2013. II. Questions Presented [ 5 ] Has the Minister established on a balance of probabilities that Mr. Cardinal acquired the $1,625 by selling dilaudid hydromorphone pills contrary to the Controlled Drugs and Substances Act , the onus imposed on him by s. 13(1) (

a) of the Victims Restitution and Compensation Payment Act ? [ 6 ] If so, has Mr. Cardinal established on a balance of probabilities that the $1,625 was not the proceeds of drug trafficking in contravention of the Controlled Drugs and Substances Act , the onus imposed on him by s. 13(1) (

b) of the Victims Restitution and Compensation Payment Act ? [ 7 ] Has the Minister established on a balance of probabilities that Mr. Cardinal ’ s 2005 Chrysler 300 was an “ instrument of illegal activity ” , an onus imposed on him by s. 19.93(1)(

a) of the Act ? [ 8 ] If so, has Mr. Cardinal established on a balance of probabilities that his 2005 Chrysler 300 was not used in carrying out an illegal act and that he did not know and would not reasonably be expected to know that his car was used in carrying out an illegal act, the onus imposed on him by s. 19.93(1)(

b) of the Act ? [ 9 ] If the Minister has discharged the onus on him under ss. 13(1)(

a) and 19.93 (1)(

a) of the Act and Mr. Cardinal has not discharged the onus on him under ss. 13(1)(

b) and 19.93 (1)(

b) of the Act , should the Court order the forfeiture of the $1,625 and the Chrysler? III. Brief Answers [ 10 ] The Minister has established on a balance of probabilities that Mr. Cardinal acquired the $1,625 he had with him when he was arrested on June 2, 2011 by illegal means and that Mr. Cardinal ’ s 2005 Chrysler 300 was an instrument of criminal activity. [ 11 ] Mr.

Cardinal has failed to establish on a balance of probabilities that the cash was not acquired by illegal means and that the 2005 Chrysler 300 was not used in carrying out an illegal act and that he did not know and would not reasonably be expected to know that his car was used in carrying out an illegal act. [ 12 ] The Court determines that Mr. Cardinal acquired the $1,625 by illegal means and that his 2005 Chrysler 300 is an instrument of illegal activity.

[ 13 ] The Court, pursuant to ss. 14(b)(iii) and 19.94(b)(iii) of the Act , orders the disposal of the restrained property and payment to the Crown of the proceeds from the disposal. There is no reason for the Court to exercise its discretion in Mr. Cardinal ’ s favour and order the return of the restrained property to him. A forfeiture order is neither inequitable nor unjust, the standard approved by the Court of Appeal of Alberta in Minister of Justice v. Sykes , 334 D.L.R. 193, 208 (2011). IV.

Applicable Statutory Provisions [ 14 ] The important sections of the Victims Restitution and Compensation Payment Act are as follows: 1(2) A reference in this Act to an illegal act is a reference to (

a) anything done or carried out in contravention of, or that constitutes an offence under, the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada); ...

(3.1) A reference in this Act to an instrument of illegal activity is a reference to property that (

a) was 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, ... 3(1) ... [T]he Minister may, with respect to property that is alleged to have been acquired by illegal means, commence an action under this Part by an application for any one or more of the following purposes: (

a) to obtain restitution or compensation for property victims and other persons, including the Crown and prescribed public bodies; (

b) to remove financial incentives to commit illegal acts, including disgorging financial gains from illegal acts; (

c) to prevent property that has been acquired by illegal means from being used to carry out future illegal acts; (

d) other purposes provided for in the regulations. 9 At a property disposal hearing, the Court is to determine (

a) whether or not the restrained property was acquired by illegal means; ... 13(1) At a property disposal hearing

(

a) the onus is on the Minister to establish that the restrained property has been acquired by illegal means; (

b) the onus is on a respondent, other than a respondent referred to in clause (b.1), to establish, with respect to the restrained property, (

i) the origin and the nature and extent of that respondent ’ s interest in the property, (ii) that the respondent has not been involved in the commission of the illegal act in respect of which the property was restrained, and (iii) where the property had been acquired by illegal means and subsequent to the acquisition of the property by illegal means the property was acquired by the respondent, that the respondent did not know and would not reasonably be expected to know that the property had been acquired by illegal means;

(4) For the purposes of a property disposal hearing, it is not necessary for the Minister to establish that any person has been charged with, found guilty of, or convicted of or otherwise held responsible for any illegal act in relation to any matter related to the property in respect of which the property disposal hearing is being conducted. 14 If at the conclusion of a property disposal hearing the Court determines, based on a balance of probabilities, that the restrained property (

a) was not acquired by illegal means, the Court (

i) is to revoke the restraint order and direct that the restrained property be returned to the person against whom the restraint order was made or to any other person that the Court considers appropriate or as otherwise directed by the Court, and (ii) may provide for compensation for actual loss, if any, resulting directly from the restraint of the property, or (

b) was acquired by illegal means, the Court may grant a property disposal order and in the property disposal order. (

i) provide under

section 15 for the return of the restrained property to the respondents or otherwise dispose of the restrained property or the proceeds of the restrained property among the respondents; ... (iii) provide under

section 17 for the disposal of the restrained property and for the payment to the Crown of the proceeds from the disposal to be used for the purposes of making payments or grants or as otherwise provided for under Division 2 of

Part 3; ...

19.2(1) ... [T]he Minister may, with respect to property that is alleged to be an instrument of illegal activity, commence an action under this Part by an application for any one or more of the following purposes: (

a) to obtain restitution or compensation for victims and other persons, including the Crown and prescribed public bodies; (

b) to remove financial incentives to commit illegal acts, including disgorging financial gains from illegal acts; (

c) to prevent property that has been used or is likely to be used in carrying out an illegal act from being used to carry out future illegal acts; (

d) other purposes provided for in the regulations. ... 19.8 At a property disposal hearing, the Court is to determine (

a) whether or not the restrained property is an instrument of illegal activity; ... 19.93(1) At a property disposal hearing (

a) the onus is on the Minister to establish that the restrained property is an instrument of illegal activity; (

b) the onus is on the respondent ... to establish, with respect to the restrained property, (

i) the origin and the nature and extent of that respondent ’ s interest in the property, (ii) that the respondent (

A) has not been or would not have been involved in or associated with carrying out an illegal act using, or associated with, the restrained property, and (

B) 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. ...

(4) For the purposes of a property disposal hearing, it is not necessary for the Minister to establish that any person has been charged with, found guilty of or convicted of or otherwise held responsible for any illegal act in relation to any matter related to the property in

respect of which the property disposal hearing is being conducted. 19.94 If at the conclusion of a property disposal hearing the Court determines, based on a balance of probabilities, that the restrained property (

a) was not used and is not likely to be used in carrying out an illegal act, the Court (

i) is to revoke the restraint order and direct that the restrained property be returned to the person against whom the restraint order was made or to any other person that the Court considers appropriate or as otherwise directed by the Court, and (ii) may provide for compensation for actual loss, if any, resulting directly from the restraint of the property, or (

b) was used or is likely to be used in carrying out an illegal act, the Court may grant a property disposal order and in the property disposal order. ... (iii) provide under

section 19.97 for the disposal of the restrained property and for payment to the Crown of the proceeds from the disposal to be used for the purposes of making payments or grants or as otherwise provided for under Division 2 of

Part 3; ... 51 Except as otherwise provided for in this Act or the regulations, (

a) the rules and procedures that apply to civil matters apply to a legal action; (

b) the Alberta Rules of Court apply to a legal action; (

c) The laws of evidence that apply to civil matters apply to a legal action; (

d) the standard of proof that applies to civil matters applies to a legal action. 52(1) In a legal action the Court may accept oral or affidavit evidence from any of the parties, and that evidence may be based on matters that come within the personal knowledge of the witness or affiant or that come within the knowledge of the witness or affiant based on information and belief.

(2) Where, in respect of a legal action, (

a) an affiant who provides evidence by means of an affidavit is questioned on the affidavit ...

that person may be questioned ... in respect of that evidence and also, subject to any direction of the Court, on anything that relates directly or indirectly to any matter that concerns or otherwise touches on any event, business affair, transaction or other subject that is related in any way to any matter in the legal action. ... 55(1) The Lieutenant Governor in Council may make regulations ... (

c) establishing or otherwise modifying any rules or procedures that apply to legal actions. V. Statement of Facts A. Police Investigation [ 15 ] In May of 2011 the downtown division special project team of the Edmonton Police Service ( “ special team ” ) targeted the Boyle Street Co-op area, a part of the downtown plagued by illegal drug activity. [ 16 ] During this campaign the special team noticed on three separate occasions a 2005 Chrysler 300 engage in suspicious activity.

In the first incident, which occurred on May 27, 2011, special team members observed an unknown female enter the front passenger door of the Chrysler and then promptly leave the car after it travelled a very short distance. The female passenger then walked back to the place where she first entered the vehicle. [ 17 ] The second incident occurred in the same area on June 2, 2011. The same female entered the Chrysler through its front passenger door and exited after the Chrysler drove ten to twenty metres down the road.

Special team members noted that the female put something small into a pocket of her shorts. [ 18 ] Special team members followed the Chrysler as it left the Boyle Street Co-op area and headed west. The Chrysler stopped in the vicinity of another female and picked her up. She exited from the car within a minute. This was the third incident. [ 19 ] Kyle Deeg, a constable with the Edmonton Police Service, was one of the special team members monitoring the Boyle Street Co-op area. His length of service and background with the Edmonton Police Service is unknown.

Constable Deeg provided an account of the next part of the investigation in his June 9, 2011 affidavit: 8. Believing that [the three incidents] ... were instances of trafficking in a controlled substance, at approximately 1838 hours on June 2, 2011, [special team] ... members conducted a vehicle stop on the Chrysler while it drove on Yellowhead Trail just west of 121 Street in Edmonton ... (... the “ Stop ” ). During the Stop, the driver of the vehicle was identified as Bruce James Cardinal ... by his class 5 driver ’ s licence.

Following the Stop, Cardinal was arrested for trafficking in a controlled substance (the “ Arrest ” ). Incident to his arrest, Cardinal ’ s person and Chrysler were searched (... the “ Search ” ). 9. During the Search, [special team] ... members located 13 pills of Dilaudid Hydromorphone (... the “ Pills ” ) in a sunglass compartment in the upper middle console (each of the Pills was 8 mgs). In my experience as a [special team member] ..., I have come to

learn that each of the Pills has an approximate street value of $40, thus making the total street value of the Pills approximately $520. The Pills were located inside a clear, unmarked orange prescription pill container. 10. During the Search, ... [special team] members also located a Big Gulp Slurpy cup in the middle console and two glass bottles under the driver ’ s seat (consistent with swallow bottles). 11. During the Search, team members also located two cell phones in the middle console and one cell phone in the glove compartment.

Of these 3 phones, one was an operating LG phone (... the “ LG Phone ” ) , one was a Motorola phone (not functioning) and one was an Apple Iphone (... the “ Iphone ” ). Both the LG phone and the Iphone were searched and numerous drug conversations were located within the text messages. ... 19. After his arrests [sic], on Search of Cardinal ’ s personal, ... [special team] members located $1,625 of Canadian currency ... in Cardinal ’ s right pant pocket. [ 20 ] Constable Deeg recited in his affidavit the text of the messages recorded in the iPhone and the LG phone.

A small sample of the messages, which Constable Deeg described as drug related, are set out below: 1. Morning bro if u were interested in doing that still I have an opportunity ti gi grab however many at 1100 per now I would grab them and give them to you and you pay 1200 per. 2. Anyway bro. 11 is a good price 12 is the norm and some people are charging 13. I would be very surprised if you could get it cheaper. 3. So lets check it out i know the foods good you wont have any risks about holding shirt and you can see how it will work. 4.

Hey bro k i can see buddy today for the same price 1100 but ill pay 400 so i need 700 and I ’ ll give you 800 back no risks. 5. I ’ m selling Yao k call if u here any one ask k. 6. You getting tree from mo? 7. I did for Tommy dum ass u want to meet up or not Doesn ’ t mo tell u anything I ’ ll grab a quart off you not Tommy. 8. It ’ s big John, I need 2 hundred dollars worth ASAP PLEASE call me Big John @ ... . 9. Hey can u text me I can come where ever I want me to and I ’ ll give u an extra ten for meeting me. 10. Need 10 pills desperately. going to fort mac tonight. hsve to b at work for 7 am.

[ 21 ] There is no evidence which confirm when these messages were sent and received. [ 22 ] On June 3, 2011 Mr. Cardinal was charged with possession of dilaudid hydromorphone for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . B. Ex Parte Restraint Order [ 23 ] On June 10, 2011 the Minister started a legal action under the Act by filing an originating application against Mr. Cardinal. The Minister seeks the forfeiture of $1,625 and Mr. Cardinal ’ s Chrysler.

He alleges that the $1,625 “ has been acquired as a result of ... [an] illegal act ” and that the Chrysler “ was used to carry out that illegal act ” . This document identifies the facts in issue. 1 S. Schiff, Evidence in the Litigation Process 25-26 (4 th ed. 1993). On the same day, counsel for the Minister appeared before the Court of Queen ’ s Bench of Alberta seeking a restraint order with respect to Mr. Cardinal ’ s 2005 Chrysler 300 and the money found on him when he was arrested on June 2, 2011.

In support of this application, the Minister filed Constable Deeg ’ s June 9, 2011 affidavit, parts of which have already been reproduced, and the affidavit of Guy Pilon, a long-service member of the Edmonton Police Service holding the rank of detective. [ 24 ] Constable Deeg ’ s affidavit contained his understanding of what the events and text messages he observed and set out in the preceding part meant: 13.

In my experience as a ... [special teams] officer, I believe that ... [text 1] summarizes the purchase of a controlled substance for the value of 1100 dollars because of the construction of the statements, and because “ Food ” is a commonly heard street term used to describe any type of controlled drug or substance. 14. I have learned from my experience as a ... [special teams] officer that “ yao ” ... is a common street name for soft cocaine. 15.

I have learned from my experience as a ... [ special teams officer] that “ tree ” ... is a street term for marihuana and “ quart ” ... is the quantity for a quarter ounce. ... 18. It is my belief based on my experience as a ... [special teams] officer and upon reading the ... texts found on the Iphone and the LG Phone, that the ... [three incidents] were drug transactions because they occurred in a public place, and appeared to be arranged through the use of cell phone text messages. [ 25 ] Constable Deeg ’ s affidavit does not disclose his background with the Edmonton Police Service.

It states that he holds the rank of constable but nothing more. His resum é is not attached to his affidavit. [ 26 ] Guy Pilon ’ s evidence revealed his extensive experience with the illicit drug trade. He has been a member of the Edmonton drug and gang enforcement unit for over ten of the twenty-nine years he has been with the Edmonton Police Service.

Detective Pilon states in his affidavit that “ one of the ... priorities of the [drug unit] ... is to target mid to high level drug traffickers ” . [ 27 ] Detective Pilon ’ s work during the last ten years had given him an opportunity to observe and learn the business methods of drug traffickers: 5. ... I have been assigned to the Edmonton Police Service Drug Unit between January 2002 and present. I have prepared and successfully executed search warrants leading to the seizure of drugs and proceeds of crime exhibits as part of major undercover operations.

I have concluded investigations that involve the use of informants and agents. I have listened to legally intercepted conversations of person actively involved in drug trafficking and proceeds of crime offences, and conducted surveillance where I observed the trafficking of controlled substances. In addition to general developmental training provided by the EPS, I have completed

the more specialized Operational Undercover Training course during which I was trained in the recognition, use and purchase of illicit drugs. As a result of this experience I am familiar with activities and habits of drug traffickers as it pertains to the illegal drug trade.

I have been qualified in Provincial Court three ... times and in Court of Queen ’ s Bench once ... providing expert opinion in relation to commercial illegal drug transactions, financial proceeds of these activities, illegal drug culture and activities in respect of possession for the purpose of trafficking in prescription pills. [ 28 ] The detective ’ s affidavit points out that drug dealers often accumulate large amounts of cash. They pay their supplier in cash and their customers pay them in cash.

Banks are of little use to drug dealers because banks have a legal duty to report suspicious money transactions. [ 29 ] Detective Pilon gave his opinion as to the significance of the fruits of the search of Mr. Cardinal ’ s Chrysler and Mr. Cardinal. [ 30 ] First, he grouped three different facts together and gave his assessment of those facts. Fact number one - thirteen dilaudid hydromorphone pills in Mr. Cardinal ’ s car; fact number two - the thirteen pills were in a Safeway prescription container with no patient name on it; and fact number three - Mr. Cardinal had $1,625 on him.

That there were only thirteen pills and a large amount of cash in the car supported the inference that there were more pills in the Chrysler before it was stopped. The presence of $1,625 in small bills supports the inference that Mr. Cardinal sold the pills to customers for cash. According to Detective Pilon, the street value of an eight milligram dilaudid hydromorphone pill was in the $30 to $40 range.

The unmarked Safeway prescription container is a container of choice for drug dealers: “ Prescription pill bottles with no patient labels are regularly used in order to transport prescription pills in an inconspicious manner ” . This information also supports the inference that the pills were the inventory of a drug dealer. [ 31 ] Second, the detective explained the evidential value of the three cell phones discovered in the Chrysler. Drug dealers communicate with customers by cell phone. They agree during a cell phone conversation on terms of the sale and their meeting place.

Once the meeting place is settled, the drug dealer drives to the exchange location. Drug dealers need to know where their customers are. [ 32 ] Third, Detective Pilon studied the text messages which were stored on two of the cell phones discovered in Mr. Cardinal ’ s vehicle. He expressed this opinion: “ In my opinion the text messages refer to purchasing and selling bulk quantities of prescription pills.

The caller was quoting prices of $1,100 to $1,200 per hundred pills ” . [ 33 ] The detective also gave his opinion based upon his review of the three groups of facts: Based upon my review of the file and upon my own observations of the matter and types of cash that was being stored by Cardinal, I believe that the cash seized was the proceeds of the sale of the Hydromorphone pills. I further believe that the Hydromorphone pills located in the vehicle being operated by Cardinal was possessed for the purpose of trafficking.

Based on my experience as a drug investigator and expert, drug trafficking is the only reasonable explanation for the quantity of cash found in Cardinal ’ s possession in the manner in which it was located in the vehicle. The quantity of cash located in the possession of Cardinal when he was arrested considering all the circumstances of this case, I have opined that illegal Hydromorphone pill trafficking activity generates large quantities of cash. [ 34 ] Justice Burrows granted an ex parte restraint order under

Part 1.1 of the Victims Restitution and Compensation Payment Act with respect to Mr. Cardinal ’ s Chrysler and the $1,625 in cash. This order provided that a property disposal hearing would take place on July 21, 2011. [ 35 ] Mr. Cardinal did not file a request for a review of a restraint order under s. 19.6(1)(

b) of the Act . C. Mr. Cardinal ’ s Criminal Trial [ 36 ] As noted above, an information sworn on June 3, 2011 charged Mr. Cardinal with possession of dilaudid hydromorphone for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act .

[ 37 ] A preliminary inquiry court ordered him to stand trial on that charge. [ 38 ] The Court of Queen ’ s Bench of Alberta found Mr. Cardinal not guilty of the trafficking charge, but guilty of the lesser included offence of possession of dilaudid hydromorphone contrary to s. 4(1) of the Controlled Drugs and Substances Act . [2] [ 39 ] The trial occurred before the property disposal hearing. D. Property Disposal Hearing [ 40 ] Sections 11(2) and 19.91(2) (

a) of the Victims Restitution and Compensation Payment Act allow a respondent to file an affidavit “ setting out the origin and the nature and extent of the respondent ’ s interest in the property and any other matters related to the respondent ’ s claim to the restrained property ” for use at a property disposal hearing. [ 41 ] Mr. Cardinal swore an affidavit on July 14, 2011. He denied that the $1,625 the Edmonton Police Services discovered on him was the proceeds of crime.

He claimed that the money “ came into my possession as repayment of loans made by me as well as monies which I had borrowed from my mother ” . He swore that he had the money “ to pay for my rent and a damage deposit ” . He also denied that he used his Chrysler “ to assist in the trafficking of controlled substances ” . [ 42 ] Counsel for the Minister questioned Mr. Cardinal on his affidavit on December 20, 2011. [3] When asked why he had $1,625 in his possession on June 2, 2011, Mr.

Cardinal said that he needed to use the money on June 3, 2011 to cover the damage deposit and rent for an apartment that he had never seen before. He said that his father who lived in Newfoundland and visited Edmonton two or three times a year would share this apartment with him. After he acknowledged that he used to pay for rent with a cheque, he claimed that he “ was just going to give it to ... [his] father to hold on for ... [him] ” . [ 43 ] Mr. Cardinal asserted that the $1,625 did not come from his bank account. He swore that his mother gave him $300 to 400 to repay him for a loan.

He also said that another $500 came from his girlfriend ’ s father to repay a loan. Mr. Cardinal could not “ remember exactly ” when he received this money. The other $700 was left over cash he had saved to buy the Chrysler early in 2011. [ 44 ] Mr. Cardinal said that he had a bank account and that his employer directly deposited his wages into his bank account. The deponent was a journeyman fire proofer whose regular wage was $41.10 per hour. [ 45 ] The Minister ’ s counsel asked Mr. Cardinal to explain why he was on Boyle Street on May 27 and June 2, 2011. Mr.

Cardinal said that his father ’ s girlfriend lived there. He went to give her $20 to purchase cigarettes. Mr. Cardinal gave her $20 even though he was not close to her and he did not like the fact that his father had a girlfriend. [ 46 ] When asked who the second woman was that entered his car on June 2, 2011, he stated that she was an aunt of a friend, a person named Ruby. He went to see her to give her a joint which he owed her. [ 47 ] Mr.

Cardinal, in response to questions about the thirteen pills the Edmonton Police Service found in his car, claimed that his father ’ s girlfriend had given him the pills, which were pain killers, after he hurt his wrist. Mr. Cardinal told counsel that someone had stabbed him in the wrist, causing an injury which required surgery just months before June 2, 2011. [ 48 ] Mr. Cardinal acknowledged that he owned the iPhone. He denied being the owner of the other two cell phones. He swore that he had never seen the LG phone before.

[49] Mr. Cardinal volunteered to “clear” up the incriminating text messages. He said that the ones talking about “$1,100 per”related to a request from a high school friend who was a drug user. His friend asked him to pick something up for him but he declined todo so. Mr. Cardinal admitted that he was a drug user and in one of the texts was attempting”to buy some green off my friend”. As for thetext where he said he was “selling Yao”, he stated that Yao was the name of his dog, and he was trying to sell her because she did not getalong with his other two dogs.

Another message, “you getting tree from Moe?”, indicated that Mr. Cardinal would be getting somemarihuana from a friend. Mr. Cardinal was not selling. [50] Mr. Cardinal filed a second affidavit sworn on June 13, 2013. In this affidavit, he stated, in part, that the Court of Queen’sBench found him not guilty of the drug trafficking charge but guilty of possession of dilaudid hydromorphone. VI. Analysis A. The Purpose of the Victims Restitution and Compensation Payment Act 1.

General Principles [51] A court forced to interpret legislation and apply it to a fact pattern without an understanding of the underlying purpose of theenactment functions with a severe handicap. The Queen v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, 331 (“Alllegislation is animated by an object the legislature intends to achieve”); Hirsh v.

Protestant Board of School Commissioners, (SCC), [1926] S.C.R. 246, 267 (the court must always consider the object of the statute); City of Montreal v. 2992 - 1366Quebec Inc., 2005 SCC 62 , [2005] 3 S.C.R. 141, 156 (“Identifying the purpose of a regulation can be helpful in determining themeaning of a given word or expression”); Re Rizzo & Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27, 41 (“statutoryinterpretation cannot be founded on the wording alone”) & Canadian Fishing Co. v.

Smith, (SCC), [1962] S.C.R. 294,306 (“The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention of theParliament which passed them”). A court which understands the object the legislators pursued is more likely to interpret it in a mannerthat advances the legislative goal. Johnson v. Southern Pacific Co., 196 U.S. 1 (1904) (an enactment should not be interpreted in amanner which defeats its object); Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, 49 (an

interpretation “which would defeat the truemeaning, intent and spirit of the ... [act]” must be rejected); Castellano v. City of New York, 142 F. 3d 58, 67 (2d Cir. 1998)(“Where thelanguage is ambiguous we focus upon the broader context and primary purpose of the statute”); A. Scalia & B. Garner, Reading Law:The

Interpretation of Legal Texts 56 (2012) (“the resolution of an ambiguity or vagueness that achieves a statute’s purpose should be favored over the resolution that frustrates its purpose”); R. Sullivan, Sullivan on the Construction of Statutes 2 (5th ed. 2008) (judges “tryto identify the intended goals of the legislation and the means devised to achieve those goals so that they can act accordingly”) &Interpretation Act, R.S.A. 2000 c.1-8, s. 10 (“An enactment ... shall be given the fair, large and liberal construction and

interpretationthat best ensures the attainment of its object”). A court must apply the statute in a manner “which best ensures the attainment ... [of theenactment’s] object and purpose”. Covert v. Nova Scotia, (SCC), [1980] 2 S.C.R. 774, 807. See also Harley v. Harley, (ON CA), 24 D.L.R. (2d) 438, 442 (Ont. C.A. 1960). (“One should inquire first what is the evil that the Legislature is attempting to remedy and what

interpretation will give the statute itsintended practical effect”.) [52] The best source of the goal the legislature pursues is the text itself. A part of the legislation devoted to a statement of thelegislative purpose is usually an indisputable marker of the true intention of the legislature. E.g.

Election Amendment Act 1998, S.A.1998, c. 34 (the Legislative Assembly explained why it denied some prisoners the right to vote in provincial elections); The HumanRights Act; S.A. 1996, c.39 (the goal of the enactment is safeguarding individual rights) & Civil Remedies Act, 2001, S.O. 2001, c. 28(the Ontario legislature created civil remedies to compensate victims of crimes and prevent persons who commit unlawful acts to keepthe fruits of their unlawful acts or use their property to perpetrate crimes).

Rarely is it to the benefit of the assembly to camouflage itstrue legislative agenda, although in exceptional cases this has happened. Texada Mines Ltd. v. British Columbia, (SCC),[1960] S.C.R. 713. [53] There are problems with other sources of the legislative purpose. Bureaucrats, commentators and others who are notmembers of the parliament, regardless of how well informed they are, suffer from the fact that they are not part of the legislative branch.And there are also risks in relying on the opinions of individual legislators. Their views, whether articulated in the course of

deliberations of the legislature or not, are simply the views of those who expressed them. See generally Castillo v. Castillo 2005 SCC 83, [2005] 3 S.C.R. 870, 881 (“It is now well accepted that legislative history, Parliamentary debates and similar material may bequite properly considered as long as they are relevant and reliable and not assigned undue weight”.) [54] On occasion, the legislative purpose is stated in terms too abstract to be helpful. A legislative purpose which is precise is ofmore assistance to the court than one that is not. Alberta Union of Provincial Employees v.

Alberta Research Council, [1992] C.L.L.R.14,390 at 14,392 (Alta. P.S.E.R.B.) (“an abstract statement of purpose will as a rule be less helpful ... than one that is specific”). 2. Application of the General Principles [55] Regrettably, the Legislative Assembly of Alberta chose not to declare expressly the purpose it pursued in enacting the VictimsRestitution and Compensation Payment Act in a part devoted to this task. In doing so, it forfeited an excellent opportunity to tell thoseresponsible for interpreting and applying the enactment why it passed the bill.

See The Criminal Property Forfeiture Act, C.C.S.M., c.C306, s. 2; Civil Remedies Act, 2001, S.O. 2001, c. 28, s.1; Civil Forfeiture Act, S.N.B. 2010, c. C-4.5, s. 3 & Civil Forfeiture Act, S.N.S.2007, c. 27, s.2. [56] The best internal evidence of the legislative purpose is found in ss. 3(1) and 19.2(1) of the Act. These sections are, with the exception of one word, identical.[4] They state that the Minister may commence an action alleging that property has been acquired byillegal means or is the instrument of illegal activity (

a) to obtain restitution or compensation for victims and other persons, including the Crown and prescribed public bodies; (

b) to remove financial incentives to commit illegal acts, including disgorging financial gains from illegal acts; and (

c) to prevent property that has been used or is likely to be used in carrying out an illegal act from being used to carry out futureillegal acts. [57] One may safely assume that the legislature shared the same goals in passing this law as it set for the Minister in takingaction under the Act.

It is inconceivable that the Legislative Assembly would have allowed the Minister to act for specified purposes ifthe assembly did not approve of the sanctioned goals. [58] If this assumption is valid, and I believe that it is, the Court may safely conclude that the Legislative Assembly of Albertapassed the Victims Restitution and Compensation Payment Act to accomplish two distinct purposes. [59] The name of the Act suggests one purpose.

It is intended to ameliorate the burden unlawful acts may impose on the directvictims of crime and society, the indirect victim of criminality, in that society bears the costs of the victims’ health care and otherservices made available to victims and their family, as well as consequential police and court costs. [60] The Legislative Assembly also acted to impose a direct cost on persons who engaged in unlawful acts. It created a protocolthe application of which deprives them of the proceeds of unlawful activity and the property they used to perpetrate unlawful acts.

It acted to deter persons who commit crimes to make money. Pazder v. Minister of Justice, 2010 ABCA 183 , 320 D.L.R. 4th 209,213 (Alta. C.A. 2010) (“The basic objective of the Victims Restitution and Compensation Payment Act, is to allow for the seizure anddisposition of property that has been implicated in criminal activity”). [61] The Supreme Court of Canada, in Chatterjee v. Ontario, 2009 SCC 19 , [2009] 1 S.C.R. 624, 640 & 642-43,provided the following comment on the express statutory purpose provision of comparable Ontario legislation:

The internal evidence of purpose thus suggests a credible intent to recover from the proceeds of crime found in Ontario the costs tovictims and to the public of criminality that would otherwise fall on the provincial treasury. ... ... [The Ontario Act] creates a property-based authority to seize money and other things shown on a balance of probabilities to be tainted bycrime and thereafter to allocate proceeds to compensating victims of and remedying the societal effects of criminality.

The practical (andintended) effect is also to take the profit out of crime and to deter its present and would-be perpetrators. [62] This Court must keep two important points in mind when interpreting the Act and applying it to the facts. [63] First, as one of the objects of the Act is to deprive a person of his property, the Court must strictly scrutinize the Minister’scase, both from a procedural and substantive perspective. Deficiencies, on either front, cannot be condoned. Our legal system recognizesand celebrates the benefits private ownership of property represents to the entire community.

Private property is indispensable to freeenterprise, which is the engine of the Canadian economy, as it is in the United Kingdom and the United States of America, varying onlyin degree in those other jurisdictions. Private property must not be subject to forfeiture except in strict compliance with the law. SeeAlberta Bill of Rights, R.S.A. 200, c. 14, s.1(a) & Canadian Bill of Rights, S.C. 1960, c. 44, s. 1(a). [64] Second, if the Minister has made out his case under these demanding conditions, the Court must be careful not to make anorder which undermines the purpose of the Act.

Forfeiture is intended to deny the alleged criminal or the proven criminal of the financialgains associated with unlawful acts or the means used to carry out illegal acts. B. The Legislative Means Adopted to Implement the Purposes of the Victims Restitution and Compensation Payment Act 1. Evidentiary Standards [65] Alberta v. Pazder, 2010 ABCA 183 , 320 D.L.R. 4th 209 (Alta.

C.A. 2010) provides a helpful overview of the meansthe Legislative Assembly of Alberta selected to deprive alleged criminals or criminals of the fruits or instrumentalities of criminalactivity. [66] In brief, the Minister initiates the process by applying ex parte for a restraint order under s. 5(1) of the Act, which the Courtmay grant if satisfied there are reasonable grounds for believing that the property “has been acquired by illegal means”, or unders.19.4(1), which the Court may grant if satisfied that there are reasonable grounds for believing that “the property ... is an instrument ofillegal activity”. [67] The restraint order triggers the need for a property disposal hearing.

Victims Restitution and Compensation Payment Act,ss.5(2) & 19.4(2). [68] At a property disposal hearing the Minister must first discharge a legal or persuasive burden and establish on a balance ofprobabilities that “the restrained property has been acquired by illegal means”, the test in s. 13(1)(

a) of the Act, or “that the restrainedproperty is an instrument of illegal activity”, the test in s. 19.93(1)(

a) of the Act. If the Minister is able to do this, the respondent mustthen discharge a legal or persuasive burden and establish on a balance of probabilities that the restrained property was not acquired byillegal means or used as an instrument of crime. Victims Restitution and Compensation Payment Act, ss. 13(1)(b) & 19.93(1)(b). If therespondent fails to do so, the Court may order the forfeiture of the restrained property. [69] In Alberta v. Echert, 2013 ABQB 314 Justice Brown carefully and thoughtfully reviewed the evidentiary principles whichgovern the admissibility of proffered evidence in a property disposal hearing.

[ 70 ] He emphasized that there were two distinct fact-finding principles at play. [ 71 ] First, the Minister must present evidence from a person who had the firsthand opportunity to observe the facts on which the Minister relies in supporting his claims. Ideally, the deponent will be the person who had this opportunity. If the deponent is merely the conduit for the transmission of this information, the affiant must disclose the identity of the informant and the affiant ’ s belief that the information is true. Alberta v. Echert , 2013 ABQB 314 , ¶ 35.

In this case, Constable Deeg is the source of these important testimonial observations. He swore that he saw a 2005 Chrysler 300 at certain places and certain times, that two women entered and left this vehicle in a short span of time, that on June 2, 2011 the Edmonton Police Service stopped and searched the Chrysler and its driver, Mr. Cardinal, and that the search disclosed that dilaudid hydromorphone was in the vehicle, along with three cell phones, two of which had text messages on them, and that Mr. Cardinal had $1,625 in cash on him.

These are the direct testimonial observations of Constable Deeg. [ 72 ] Second, if the Minister ’ s case depends on an expert ’ s opinion, the Minister must abide by the norms governing the admissibility of expert evidence. Alberta v. Echert , 2013 ABQB 314 , ¶ 23. [ 73 ] The Minister may have to present an expert to provide evidence which supplements the testimonial facts and allows the court to draw inferences leading to the conclusion that the respondent was engaged in illegal acts. This is because the testimonial facts alone may not prove that a respondent committed an illegal act as defined in s. 1(2)(

a) of the Act . No witness may have observed the actual exchange of drugs for money. This is what happened here. The testimonial facts alone do not confirm that Mr. Cardinal sold dilaudid hydromorphone to anyone. A nonexpert cannot infer from the testimonial facts presented by Constable Deeg that illegal acts occurred. This point is discussed below: A threshold requirement for the reception of evidence from lay witnesses is that they must possess firsthand knowledge of a fact perceived through one of their senses.

Expert witnesses, on the other hand, have specialized knowledge, skill or experience and are not required to have firsthand knowledge of the facts which form the basis of their opinions. It is the expert ’ s function to provide the trier of fact with a ready-made inference from proven facts since the technical or scientific nature of the subject matter is likely to be beyond the facts-finders knowledge or experience. A. Bryant, S. Lederman & M.

Fuerst, The Law of Evidence in Canada 785 (3d ed. 2009). [ 74 ] Justice Brown held that the Minister had failed to present background information about the constable which would allow the Court to qualify him as an expert.

As such, he was unable to accept the opinion of the constable, whose experience as a drug trafficking investigator was not presented to the Court, that the testimonial facts he presented were evidence of illegal activity, as defined in the Act : “ The connection between the observed activities involving the BMW and the Hyundai not being the sort of matters upon which lay persons of ordinary experience can opine, it is not the sort of thing that [the] Constable[ ’ s] ... experience allows him to opine ” . 2013 ABQB 314 , ​ 29. [ 75 ] What is the standard by which the adequacy of an affidavit containing an expert ’ s opinion is measured? [ 76 ]

Part 5, Division 2 of the Alberta Rules of Court entitled “ Experts and Expert Reports ” applies to the use of expert ’ s reports in the context of a trial. A proceeding under the Victims Restitution and Compensation Payment Act is not a trial. Rule 3.10 of the Alberta Rules of Court stipulates that “

Part 5 [does] ... not apply to an action started by originating application unless the parties otherwise agree or the Court otherwise orders. ” A legal action under the Act is started by an originating application. [ 77 ] Nothing in the Victims Restitution and Compensation Payment Act or the Alberta Rules of Court, which apply by virtue of s. 51(

b) of the Act, dictates the form an affidavit containing an expert ’ s opinion must follow. [ 78 ] Rule 1.7(2) of the Alberta Rules of Court contemplates that there might be some gaps in the rules and stipulates that “ [t]hese rules may be applied by analogy to any matter arising that is not dealt with in these rules ” .

[79] Taking into account the rules in

Part 5, Division 2 of the Alberta Rules of Court, the purpose these rules serve and the contextof a proceeding under the Victims Restitution and Compensation Payment Act, an affidavit containing the opinion of an expert used tosupport an application for a restraint or a property disposal order must contain the expert’s qualifications, the factual foundation on whichthe expert’s opinion is based and the expert’s opinion. It is always open to the respondent to challenge the admissibility of expertevidence tendered by the Minister on the ground that the qualifying conditions in The Queen v.

J.-L.J., 2000 SCC 51 , [2000] 2S.C.R. 600 are not met. The authors of The Law of Evidence 791 (3d ed. 2009) summarized the law this way: The criteria for the admissibility of expert evidence are: (1) a properly qualified expert; (2) relevance; (3) necessity; (4) reliability; (5)prejudice/probative analysis; and (6) the absence of an exclusionary rule.

The criteria of necessity, reliability or the prejudice/probativetest are often interrelated and overlapping in their application. [80] I am satisfied that Detective Pilon is qualified to give expert evidence in relation to commercial illegal drug transactions.Detective Pilon possesses special knowledge or experience which the Court does not have.

He has over ten years experience with theEdmonton Police Service drug unit and has been extensively involved in investigations and prosecutions of persons involved in the illicitdrug trade. “The admissibility of expert evidence does not depend upon the means by which that skill was acquired. As long as the trialjudge is satisfied that the witness is sufficiently experienced in the subject matter at issue, the judge will not be concerned with whetherthe expertise was derived from specific studies or by practical training”. A. Bryant, S. Lederman & M.

Fuerst, The Law of Evidence inCanada 820 (3d ed. 2009). [81] The respondent did not challenge the qualifications of Detective Pilon. [82] Given the consequence of a finding that property is the proceeds of crime or has been used to commit a crime is forfeitureof the property, this Court must vigorously scrutinize the proof presented by the Minister, both from a substantive and procedural perspective. See R. Sullivan, Sullivan on the Construction of Statutes 469-71 (5th ed. 2008) & A. Scalia & B. Garner, Reading Law: TheInterpretation of Legal Text 297-98 (2012).

This is the unmistakable message Justice Brown delivered in Alberta v. Echert, 2013 ABQB314, ​ 32. I agree wholeheartedly with his position. [83] Holding the Minister to this high standard does not impose an unfair or onerous burden on him. As Justice Brown notes,when the Minister “is relying upon a police officer’s opinion that is based upon his or her experience, the police officer should beproperly qualified as an expert (as it appears the police officer relied upon in Pazder was)”. Alberta v. Echert, 2013 ABQB 314, ​ 32. 2. Substantive Standard [84] Under s. 14(

b) of the Victims Restitution and Compensation Payment Act the Court may order the forfeiture of restrainedproperty if it determines “at the conclusion of a property disposal hearing ... on a balance of probabilities, that the restrained property was... acquired by illegal means”. [85] What are “illegal means”? [86] According to s. 1(3) of the Act, property has been acquired by illegal means if it “has been acquired or derived directly orindirectly through an illegal act”. [87] And what is an “illegal act”? [88] An “illegal act”, according to s. 1(2), means “anything done or carried out in contravention of, or that constitutes an offenceunder the Criminal Code (Canada) or the Controlled Drugs and Substances Act (Canada)”. [89] The money or other valuable consideration a drug dealer receives from his customers for the sale of illicit drugs constitutesproperty that was acquired by illegal means.

The drug dealer intended to exchange drugs for money. This is straightforward. One can

imagine fact patterns which complicate the issue, but they will seldom, if ever, occur. [90] Suppose that a drug dealer also carries on a legitimate art gallery business buying and selling works of art. Also suppose thata customer visits the drug dealer’s art gallery and sells the art gallery a painting. Suppose again, that in return, the drug dealer agrees tosupply the seller of the painting, a cocaine user, his cocaine for the next six months. Is this painting property that has been acquiredthrough an illegal act? Arguably, the principal object which changed hands in this transaction was a painting, not drugs.

Acquiring apainting is not an illegal act. Does this make a difference? [91] The Court of Queen’s Bench may also order the forfeiture of restrained property if, after conducting a hearing, it concludes,on a balance of probabilities that the restrained property “was used or is likely to be used in carrying out an illegal act”. VictimsRestitution and Compensation Payment Act, s. 19.94(b).

This issue arises after the Court has granted a restraint order because it “issatisfied that there are reasonable grounds to believe that the property ... is an instrument of criminal activity”. [92] Section 1(3.1) of the Act provides that a “reference ... to an instrument of illegal activity is a reference to property that ... wasused 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 orin bodily harm to any person”.

This definition obliges an adjudicator to determine whether the restrained property was used in carryingout an illegal act and, if so, whether the illegal act “resulted in or was likely to or was intended to result in the acquisition of otherproperty or in bodily harm to any person”. In other words, was the result or likely result, objectively assessed, of the illegal act theacquisition of other property or bodily harm to any person? [93] Counsel for the respondent argues that Mr.

Cardinal’s car was not an instrument of criminal activity if his only culpable actwas giving Ruby on June 2, 2011 a joint to compensate her for the joint she had previously given him. As I understand the argument, Mr.Rauf, while conceding that Mr. Cardinal was guilty of trafficking when he gave Ruby the marihuana, maintained that giving Rubymarihuana did not trigger s. 1(3.1)(

a) of the Act because the illegal act of trafficking in marihuana did not result in or was not likely to orwas not intended to result in the acquisition of other property or in bodily harm to Ruby. [94] This argument is not compelling. The Supreme Court of Canada in The Queen v. Malmo-Levine, 2003 SCC 74 ,[2003] 3 S.C.R. 571, 621 expressly stated that Parliament criminalized the use of marihuana because marihuana harms people. See alsoHarper v. Canada, 2000 SCC 57 , [2000] 2 S.C.R. 764, 770-72 (until the contrary is established, a court must assume that astatute “serves a valid public purpose”).

The Court concludes that Mr. Cardinal, by giving Ruby marihuana or any other drug listed in theControlled Drugs and Substances Act for her personal consumption, resulted in bodily harm to Ruby. [95] A drug trafficker who uses a vehicle to sell drugs is caught by s. 1(3.1) of the Act. First, drug trafficking is contrary to theControlled Drugs and Substances Act. It is an illegal act. Second, the drug trafficker used his vehicle to carry out the illegal act. Thereare two components to this second aspect of the analysis. First, the drug trafficker intended to use the vehicle to effect an unlawfulpurpose.

It must be part of his business plan. This will usually be the case. But there are always exceptions. Suppose that a drug dealerpicked up a hitchhiker, not for the purpose of selling him marihuana but to drop him off closer to his destination. Suppose also that thehitchhiker, smelling marihuana, offered to purchase from the drug dealer some marihuana so he could use it while he was a passenger inthe car; that the driver agreed to sell him some; and that this transaction constituted drug trafficking for the purposes of the ControlledDrugs and Substances Act.

This transaction would not meet the subjective component of the test. The driver never intended to use thevehicle to effect the sale of marihuana. Second, objectively assessed, the vehicle must play an important role in the illegal transaction.Most of the time a drug dealer’s vehicle connects the drug trafficker and his customers. In addition, the car shields the actual exchange ofdrugs for money from public scrutiny. Furthermore, it allows the drug trafficker to promptly leave the area if he thinks a speedydeparture is necessary.

Any other mode of transportation used to bring the drugs to market most certainly will be caught in the spider netthe Act represents. A drug dealer who flies his product to his market can expect to lose his plane. As Justice Ritter explained in Minister of Justice v. Sykes, 2011 ABCA 191 , 334 D.L.R. 4th 193, 203 (Alta. C.A. 2011), “if the object subject to seizure was more thatincidentally involved in the commission of the crime, it was used for criminal activity under this legislation”.

That the drug traffickercould have used other means of connecting with his customers, such as taking a cab, riding a bike or walking, is irrelevant. What isrelevant is that the vehicle played an important role in facilitating the illegal transaction. [96] This analysis explains why the clothes a drug dealer was wearing, the food he was eating, the music he was listening to andthe golf clubs he had in the trunk while he was selling drugs from his vehicle are not instruments of crime.

It also explains why thevehicle a drug dealer uses to carry his inventory and to drive to meet his customers and the cell phone a drug dealer uses to communicatewith his customer base falls within the definition of an instrument of crime.

C. Application of the General Principles to the Facts of This Case 1. The Minister Has Discharged His Onus [ 97 ] The Minister ’ s originating application identifies the facts in issue he must establish. He must prove on a balance of probabilities that Mr. Cardinal sold dilaudid hydromorphone to the two women from his Chrysler on May 27 and June 2, 2011. [ 98 ] The Minister has established on a balance of probabilities that the $1,625 in Mr. Cardinal ’ s possession was acquired by illegal means and that Mr.

Cardinals ’ 2005 Chrysler 300 was an instrument of illegal activity. [ 99 ] The Court concludes, on a balance of probabilities, that Mr. Cardinal sold dilaudid hydromorphone on May 27 and June 2, 2011 to women who entered his vehicle for a short period of time while members of the Edmonton Police Service special unit, including Constable Deeg, watched. [ 100 ] While neither Constable Deeg nor any other member of the Edmonton Police Service observed Mr. Cardinal deliver dilaudid hydromorphone to the females who entered his car on May 27 and June 2, 2011 and the females give Mr.

Cardinal money, the admissible testimonial facts provided by Constable Deeg and the expert opinion evidence of Detective Pilon provide a firm foundation for the inference that he did. [ 101 ] Constable Deeg swore that a 2005 Chrysler 300, in the vicinity of the Boyle Street Co-op, an area with a high concentration of illegal drug activity and under surveillance by the special unit the constable was a part of, and elsewhere, on May 27 and June 2, 2011, on three separate occasions, stopped, picked up and dropped off moments later two different females. Mr.

Cardinal was arrested on June 2, 2011 after the third incident. He was driving the 2005 Chrysler 300 when it was stopped. He must have been driving it earlier in June 2, 2011 when Constable Deeg had it under surveillance. There is no evidence that anyone else left the car while it was being watched. In any event, Mr. Cardinal admitted being the driver at the material times. The Minister can rely on evidence led by the respondent to fill in gaps in his case. The Edmonton Police Service searched Mr. Cardinal and his vehicle.

He had $1,625 in his pant pockets and thirteen dilaudid hydromorphone pills and three cell phones, two of which were working, in his vehicle.

The working cell phones contained text messages which Constable Deeg reproduced in his affidavit. [ 102 ] Detective Guy Pilon, in his June 8, 2011 affidavit, described his professional experience and training, his expertise relating to the illegal drug trade and his acceptance on four occasions by The Provincial Court of Alberta and the Court of Queen ’ s Bench of Alberta as an expert qualified to give expert opinions “ in relation to commercial illegal drug transactions, financial proceeds of these activities, illegal drug culture and activities in respect to possession for the purpose of trafficking in prescription pills, ” as he states in his June 8, 2011 affidavit.

As stated earlier, I find that Detective Pilon is an expert in these areas and qualified to give opinions on these topics. [ 103 ] The detective provided a general overview of how drug dealers carry on business. They carry large sums of cash because they are reluctant to use banks.

Cell phones are the primary means by which drug dealers communicate with their customers: “ In this manner, the customers call the dealer ’ s cell phone, they have a conversation in which pills are ordered and delivery arrangements are secured ” . [ 104 ] Detective Pilon reviewed the facts as presented by Constable Deeg and offered specific opinions about this case. The most important are set out below: 8. ...The presence of large amounts of money and minimal amount of dilaudid pills (hereinafter referred to as “ Hydromorphone ” ) is consistent with prior drug sales. ... 9.

Currency found in this manner is often found to have been derived from the proceeds of illegal drug transactions... .

10. The police reports indicate that the Hydromorphone pills were located in an unmarked Safeway prescription bottle bearing no patient label... . Prescription pill bottles with no patient labels are regularly used in order to transport prescription pills in an inconspicious manner. ... 14. Constable Deeg searched the data from the Iphone and the Motorola cell phones. I have reviewed the text messages downloaded from the Iphone. In my opinion, the text messages refer to purchasing and selling bulk quantities of prescription pills. The caller was quoting prices of $1,100 to $1,200 per hundred pills.

The Motorola cell phone contained messages from users looking to purchase pills. These incoming text messages provide strong corroborative evidence that Cardinal was a drug distributor involved in the illicit sale of prescription pills. 15. I am informed by Constable McLaughlin that the cash was comprised of bills of small denominations. ... In my opinion, the only reasonable inference from the quantity of the cash in the circumstances described above is that the money was generated from the sale of the drugs. [5] 16. ...

The possession of large amounts of cash associated to drug trafficking represents either the proceeds of a recent sale of product by the dealer or the funds to be used by the dealer to purchase more inventory or to pay off amounts owing for drugs fronted (previously received but not paid for). The presence of large amounts of money on small denominations is connected with prior drug sales. ... 18. ... I believe that the cash seized was the proceeds of sale of the Hydromorphone pills.

I further believe that the Hydromorphone pills located in the vehicle being operated by Cardinal was possessed for the purposes of committing an illegal act, namely possessed for the purpose for trafficking. ... I have opined that illegal Hydromorphone pill drug trafficking activity generates large quantities of cash. [ 105 ] I am satisfied that the inferences which the detective made from the foundational facts to support his conclusion that Mr. Cardinal was selling dilaudid hydromorphone are justified. It is much more likely than not that Mr.

Cardinal on May 27 and June 2, 2011 sold dilaudid hydromorphone to the two females who entered his vehicle while he was subject to police surveillance. [ 106 ] For these reasons, I conclude that the Minister has discharged his onus under s. 13(1)(

a) of the Act and has established on a balance of probabilities that the $1,625 in Mr. Cardinal ’ s possession was acquired by illegal means. [ 107 ] My thought process works this way. The presence of a large amount of cash in small bills supports the inference that Mr. Cardinal was engaged in an undertaking which provided him with lots of small bills. What undertaking would that be? Detective Pilon gave expert evidence that the market price for a single eight milligram pill of dilaudid hydromorphone was in the $30 to $40 range.

Constable Deeg ’ s affidavit revealed that there was thirteen pills of this size and composition in Mr. Cardinal ’ s car. According to Detective Pilon, the text message in the cell phone revealed that Mr. Cardinal bought dilaudid hydromorphone in bulk – units of 100. If Mr. Cardinal buys these pills in large quantities, more likely than not he sells them in large quantities. The inference is that Mr. Cardinal sold these pills to accumulate $1,625. Mr. Cardinal would only have to sell forty pills to accumulate $1,600 in cash. The next inference is that the two females who visited with Mr.

Cardinal for a short time while his Chrysler was under surveillance, were two of Mr. Cardinal ’ s paying customers. They acted in a manner consistent with the behaviour of a customer of a drug dealer. See 1 S. Schiff, Evidence in the Litigation Process 32-34 (4 th ed. 1993).These transactions are in contravention of the Controlled Drugs and Substances Act . [ 108 ] The combination of the uncontroverted testimonial facts and the expert opinion of Detective Pilon supports the conclusion on a balance of probabilities that the Minister has proven the facts in issue. [ 109 ] The conclusion that Mr.

Cardinal sold dilaudid hydromorphone while he was driving his Chrysler supports the determination on a balance of probabilities that Mr. Cardinal used his vehicle to carry out an illegal act. Mr. Cardinal intended to use the Chrysler as the

platform for his drug-selling business. He used it to meet his customers, to transport his inventory and to camouflage his unlawful business. His car was a central feature of his business plan. The Court easily concludes that Mr. Cardinal ’ s Chrysler played an important role in this illegal business. [ 110 ] Having determined that the Minister has discharged his onus to establish on a balance of probabilities that the $1,625 has been acquired by drug trafficking in contravention of s. 5(1) of the Controlled Drugs and Substances Act and that Mr.

Cardinal ’ s Chrysler was an instrument of crime, the Court must conclude that Mr. Cardinal acquired the money by illegal means and that the vehicle was an instrument of crime unless the respondent establishes, on a balance of probabilities, that the cash came from an activity other than the sale of dilaudid hydromorphone and that his car was not used to carry out an illegal act. 2. Mr. Cardinal Failed To Discharge His Onus [ 111 ] Mr.

Cardinal claimed in either his July 14, 2011 affidavit or the questioning on his affidavit conducted on December 20, 2011 that he had $1,625 in his possession on June 2, 2011 because he intended to rent an apartment on June 3, 2011 and expected the rent and damage deposit to be roughly $1,600. [ 112 ] This account is totally unbelievable. First, Mr. Cardinal admitted that he had never seen the apartment he swore he was going to rent the next day. The likelihood Mr. Cardinal would rent an apartment neither he nor someone he knew had not seen before is extremely low.

Second, he was living with his girlfriend at the time. Monthly rent for this apartment was $600, with each of the occupants contributing $300. He did not need another place to stay. Third, he swore that he needed a place in which he and his father could reside. The fact that his father has a house in and is a permanent resident of Newfoundland and visits Edmonton two or three times a year makes this claim incredible. Why would Mr. Cardinal rent an apartment for $900 per month so that his father could stay with him two or three times a year? Fourth, in the past Mr.

Cardinal acknowledged that he paid his rent by cheque. Why not this time? Mr. Cardinal ’ s answer is less than credible: Q So why in this case were you planning on using cash for this damage deposit? A Well, I was just going to give it to my father to hold on for me, but it was no big deal. Q So you were going to take the cash that you had got, and your dad was going to come into town, and you were both going to go look at the apartment, and then you were going to give the cash to him to pay for the damage deposit, or how exactly was that going to work? What was the plan? A There was no plan.

It was just over the phone at the time. But he was going to come in. I ’ m sorry; that was a mistake. This is - - this is - - Fifth, why would Mr. Cardinal carry around $1,625 when he could have deposited the cash in his bank account, which he claimed he had, or the safe he said he kept in the apartment he and his girlfriend shared and removed it the day he needed the money? It is much more likely than not that a person with a background similar to Mr. Cardinal ’ s would store a sum of money this large in a much safer place than a pocket in his jeans.

In addition, $1,625 in cash in small bills is a bulky bundle to carry about. [ 113 ] Mr. Cardinal asserted in his July 14, 2011 affidavit that there were three sources for the $1,625 the Edmonton Police Service found on him when he was arrested on June 2, 2011: “ These monies came into my possession as repayment of loans made by me as well as monies which I had borrowed from my mother. ... [T]he rest of the monies were my own personal property ... . ” His explanation changed when cross-examined on his affidavit on December 20, 2011.

When questioned he swore that his mother had repaid him $300 to $400 she owed him. Another $500 came from his girlfriend ’ s father. According to Mr. Cardinal, this person repaid a $500 loan at some unknown time before June 2, 2011: Q So $500 was from your girlfriend ’ s dad?

A Yes Q And do you recall when your girlfriend ’ s dad gave you this cash? A I do not recall - - Q You don ’ t recall, okay. A - - exactly. I can ’ t say. Q Was it in the month before the cash was seized, or was it - - A Yeah, it was - - Q - - six months before the cash was seized? A No, no, no, it was - - within a month before. Q Within a month? A I don ’ t remember, exactly, but ... [ 114 ] In his affidavit and on questioning Mr. Cardinal maintained that a portion of the $1,625 came from another source.

During questioning he swore that $700 of the $1,625 represented money he had saved to buy his 2005 Chrysler 300 but did not need for the purchase. [ 115 ] I do not believe Mr. Cardinal. He changed his story when questioned about the nature of the transaction to which his mother was allegedly a party. And he could not remember when the father of his girlfriend repaid him a $500 loan. Mr. Cardinal, according to his answers under oath, had not worked between November 2010 and June 2, 2011. His work as a journeyman fire proofer is seasonal, usually ending in November and starting up in March or April. In 2011 Mr.

Cardinal was unable to work because in roughly March someone had stabbed him in the wrist with a knife. Under the circumstances I would have thought it much more likely than not that Mr. Cardinal would have been short of cash and had better recall about his financial situation. [ 116 ] Mr. Cardinal ’ s account of the facts which led to his having thirteen dilaudid hydromorphone pills in his possession is also unbelievable.

He claimed that his father ’ s off-and-on-again girlfriend, a person whose relationship with his father makes him uncomfortable and to whom he is not close, gave him the pills because they were painkillers and he had a painful wrist injury. Even assuming that he had a wrist injury, why would a person who is not close to him give him hundreds of dollars worth of pills? More significantly, why would Mr. Cardinal not secure painkillers from a legitimate source? Pharmacies sell painkillers. [ 117 ] I have another reason for disbelieving Mr.

Cardinal ’ s explanation that he received the pills as a gift to help alleviate the pain caused by his wrist injury.

[ 118 ] Why would he store them in his car? Most people do not use their vehicles as mobile medicine cabinets. I cannot believe that Mr. Cardinal would consume them while operating his motor vehicle. He would not be fit to drive safely. His own evidence is that “ you don ’ t feel no pain ” when you take one. [ 119 ] I also find completely unconvincing Mr. Cardinal ’ s account of the nature of his contact with the females who entered his car on May 27 and June 2, 2011 when it was under surveillance.

He swore that the female who entered his car near the Boyle Street Co-op on May 27 and June 2, 2011 was his father ’ s girlfriend and that he met her so that he could give her “ 20 bucks for smokes and whatever ” . Just as it was implausible that Mr. Cardinal ’ s father ’ s girlfriend would give Mr. Cardinal drugs for free, so it is that Mr. Cardinal gave this woman $20 and intended to drive her to a store so that she could purchase cigarettes. [ 120 ] Constable Deeg ’ s evidence was that the first female who climbed into Mr.

Cardinal ’ s car on May 27 and June 2, 2011 left it shortly after entering and walked back to the area where she was when Mr. Cardinal picked her up. I am satisfied, based on all the evidence before me and using the standard of proof in force in a civil matter – a balance of probabilities – that Mr. Cardinal sold this female one or more dilaudid hydromorphone pills when she was in his vehicle. [ 121 ] Mr. Cardinal asserted that the second female who Constable Deeg observed enter his vehicle on June 2, 2011 was a “ friend ’ s aunt ” . He swore that the purpose of his interaction was to “ [drop] ... of a joint ” .

According to Mr. Cardinal, she had lent him one earlier when they were drinking together. He could not remember when. He denied selling her the joint. Again, based on all the evidence before me and using the standard of proof in force in a civil matter, I find that Mr. Cardinal sold this female one or more dilaudid hydromorphone pills when she was with him in his car. [ 122 ] Mr. Cardinal ’ s characterization of the messages recorded on the cell phones found in his 2005 Chrysler 300 on June 2, 2011 does not have the ring of truth.

For example, one message he was asked to explain reads as follows: “ Morning bro if u were interested in doing that still I have an opportunity ti gi grab however many at 1100 per now I would grab them and give them to you or something and you pay 1200 per ” . [ 123 ] This strikes me as an unequivocal offer from the message sender to Mr. Cardinal to supply him with a quantity of something at “ 1200 per [unit] ” . The part of the questioning of Mr. Cardinal on point reads this way: Q Sure, its page 3 [of Constable Deeg ’ s affidavit], conversation number one between you and Mike.

So just to confirm what you said, that he was asking to buy drugs from you but that you didn ’ t? A No, no, confirm he was asking me to get it for him. Q He was asking you to get it for him? A Yeah. He wasn ’ t - - I wasn ’ t selling nothing or your know ... Q Okay. A Because - - and I ’ ll clear this up too. Like, I wasn ’ t - - I didn ’ t know where to get it. He was going to get it; he just wanted me to grab it, but ... Q So why would he come to you for that kind of - - A Well, he knows I work

Q - - assistance? A I work a lot. Sometimes I have money; sometimes I’m broke. Q Does Mike work? A I don’t know. I haven’t seen him ... in a while. Mr. Cardinal’s response does not accord with the text he was asked to explain. [124] For these reasons, I conclude that Mr. Cardinal has failed to establish on a balance of probabilities that the cash he had on himwhen the Edmonton Police Service arrested him on June 2, 2011 is not the proceeds of the sale of the dilaudid hydromorphone. Thelikelihood his account is true is very low. [125] As a consequence, I also conclude that Mr.

Cardinal has failed to establish on a balance of probabilities that his 2005 Chrysler300 was not involved in carrying out an illegal act, namely selling dilaudid hydromorphone on May 27 and June 2, 2011. D. There Is No Reason To Show Mr. Cardinal Leniency [126] Both ss. 14(

b) and 19.94(

b) of the Act bestow a discretion on a court that has adjudged the restrained property to have beenacquired by illegal means or is an instrument of illegal activity. It does not have to order the forfeiture of the restrained property. Butthere is no reason to be lenient in Mr. Cardinal’s case. The cash was the proceeds of illegal acts and he used the Chrysler to sell dilaudidhydromorphone pills. The vehicle played an important role in Mr. Cardinal’s business. There is nothing unjust about depriving Mr.Cardinal of his vehicle. If Mr.

Cardinal had been driving an expensive car, he might have been able to argue that forfeiture would beunjust because he did not need to drive an expensive car to execute his business plan and that forfeiture would be a harsh result. But Mr.Cardinal was not driving an expensive car. Mr. Cardinal paid $9,700 for his Chrysler in February or March 2011. It must be worthconsiderably less now. There is nothing “inequitable or unjust” about forfeiture in this case. Minister of Justice v. Sykes, 334 D.L.R. 193, 208 (Alta. C.A. 2011). See also Ontario v. 440 Aubin Road, 2011 ONCA 363 , 333 D.L.R. 4th 326, 351 (Ont.

C.A. 2011)(forfeiture is inappropriate if it is “excessive”). In fact, leniency would undermine the legislative goal of removing “financial incentivesto commit unlawful acts” set out in s. 3(1)(

b) and 19.2(

b) of the Act. [127] The Court orders the forfeiture of the $1,625 under s. 14(b)(iii) of the Act and the 2005 Chrysler 300 under s. 19.94(b)(iii) ofthe Act. E. The Significance of the Fact That the Court of Queen’s Bench of Alberta Acquitted Mr.

Cardinal of Drug Trafficking [128] Sections 13(4) and 19.93(4) of the Victims Restitution and Compensation Payment Act provide that the Minister does not haveto establish that “any person has been charged with, found guilty of or convicted of or otherwise held responsible for any illegal act inrelation to any matter related to the property in respect of which the property disposal hearing is being conducted”. [129] But what is the significance of the fact that Justice Macklin acquitted Mr.

Cardinal of trafficking in dilaudid hydromorphone? [130] Are the doctrines of res judicata, issue estoppel or abuse of process engaged? No.

[131] As counsel did not raise this point, I am content to make only a brief comment. [132] The proceedings under the Act do not result in unfair treatment of Mr. Cardinal or bring the administration of justice intodisrepute. [133] At a criminal trial, the Court must acquit the accused if the prosecution has not proved beyond a reasonable doubt thephysical and mental components of the charged crime. This is a very high level of probability. The level of probability required in an inrem property disposal hearing under the Victims Restitution and Compensation Payment Act is considerably less.

The Minister need onlyprove the facts in issue on a balance of probabilities. Victims Restitution and Compensation Payment Act, s. 51(d). [134] Given the different standards applicable in the two proceedings, it is conceivable that on the same facts a criminal trial judgemay conclude that the prosecution has not proved its case beyond a reasonable doubt and that a Court of Queen’s Bench judgeconducting a property disposal hearing may conclude that the Minister had made his case on a balance of probabilities. Ontario v. 51,000Cdn, 2013 ONSC 1321, ¶ 32.

And the criminal trial judge may well have concluded that the prosecution would have succeeded had thebalance of probabilities standard been the measure of conviction. Likewise, the Queen’s Bench judge who declared that the evidence theMinister relied on at an in rem property disposal hearing was sufficient to clear the lower balance of probabilities standard could haveconcluded that it fell short of the bar set higher at the proof beyond a reasonable doubt standard. See City of Toronto v.

Canadian Unionof Public Employees, Local 79, 2003 SCC 63 , [2003] 3 S.C.R. 77 ( a criminal determination that the grievor in a labourarbitration committed a criminal offence binds the labour arbitrator).

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