Alberta (Minister of Justice and Solicitor General) v Amer, 2017 ABQB 558

Court of Queen’s Bench of Alberta Citation: Alberta (Minister of Justice and Solicitor General) v Amer, 2017 ABQB 558 Date: 20170915 Docket: 1501 10129 Registry: Calgary Between: Minister of Justice and Solicitor General for Alberta Applicant - and - Abdullah Mohamed Amer, Azaq Amed Haji, Mohamad Amer, Mohamad El-Rafih and the Chief of Police of the Calgary Police Service Respondents _______________________________________________________ Decision of the Honourable Mr. Justice G.H. Poelman _______________________________________________________

Table of Contents I. Introduction . 3 II. Facts . 3 A. Overview .. 3 III. General Legal Principles . 4 A. Overview of Act 4 IV. Jeep . 5 A. Statutory Test 5 B. Legal Principles of Ownership . 5 C. Findings . 6 V. Cash . 7 A. Statutory Test 7 VI. Conclusions . 9 I. Introduction [ 1 ] The Minister of Justice and Attorney General for Alberta applies for an order that a 2012 Jeep Grande Cherokee and $25,500 in cash be forfeited to Her Majesty the Queen in Right of Alberta.

The application is made under the Victims Restitution and Compensation Payment Act , SA 2001, c V-3.5. [ 2 ] Earlier proceedings under the Act resulted in an ex parte restraint order dated September 29, 2015, granted on the basis there

were reasonable grounds to believe that property was either acquired by illegal means or was an instrument of illegal activity: Act , ss 5 and 19.4. Some named respondents did not challenge the order, and some cash other than the $25,500 found during the same search was not claimed by any respondents. [ 3 ] On the hearing of this application, only Mohamad Amer and Mohamad El-Rafih claimed an interest in the restrained property. Mr. Amer is the current registered owner of the Jeep and disputes its forfeiture; Mr.

El-Rafih claims that he resided at the apartment where the cash was seized, that it was his cash, and that it constituted legitimate proceeds of his business. [ 4 ] The Minister’s application is supported by an affidavit of Det. Mark Best. Messrs. Amer and El-Rafih gave evidence by affidavits and cross-examinations thereon. II. Facts A. Overview [ 5 ] In January 2015, the Calgary Police Service was investigating a shooting incident.

Their investigation involved review of CCTV footage from an apartment in northeast Calgary (referred to as the “80 Avenue Apartment”), covert surveillance of Abdullah Amer and Azaq Amed Haji, the arrests of those individuals and the execution of search warrants on the 80 Avenue Apartment and the Jeep. [ 6 ] In the 80 Avenue Apartment, the police located $35,122 in Canadian currency in various locations, significant amounts of cocaine and oxycodone, a scale with white residue powder, several boxes of clear plastic sandwich bags and several documents on the floor in Abdullah Amer’s name.

The Jeep contained numerous cellphones, a loaded handgun, and hidden quantities of oxycodone pills. [ 7 ] The $25,500 in cash, which is in dispute on this application, was found in pockets of a beige men’s coat hanging in the closet of the east side or “master” bedroom of the apartment: $5,500 in a Ziploc bag in the left side breast pocket, and $20,000 in a Ziploc bag in the right lower side pocket. The scale, sandwich bags and documents were found in the kitchen of the apartment. The other currency and contraband were found in the northwest bedroom. [ 8 ] Mr.

El-Rafih testified that he was the lease-holder of the apartment (while also maintaining a residence elsewhere in the city). When Abdullah was released on drug-related criminal charges in 2014, Mr. El-Rafih (his uncle) agreed to let him live at the 80 Avenue Apartment, and to use the northwest bedroom in which drugs were found. Mr. El-Rafih’s room, he testified, was the master bedroom where the cash was found. They both had use of the common areas, including the kitchen. [ 9 ] Mr. El-Rafih could not produce any documents confirming that he was the named tenant of the apartment. Det.

Best searched a number of databases, but could find no results connecting Mr. El-Rafih to the 80 Avenue Apartment. Most utilities were included in the rent, and all other bills for the apartment were in Abdullah’s name. [ 10 ] Mr. El-Rafih’s business is construction and snow removal. He is paid by cash or cheques, and maintains some cash for expenses such as equipment repair. He testified that the $25,500 was cash received in his business, which he kept because he had not had an opportunity to deposit it and he liked some cash reserve for expenses. He regularly reported cash receipts to his accountant.

No documentation was produced to support his claim that the cash related to his business. [ 11 ] Mr. El-Rafih testified that he was unaware that there was an electronic scale in the kitchen. [ 12 ] Mr. Amer (Abdullah’s father) purchased the Jeep from an acquaintance of Abdullah on October 7, 2014 for $11,000. He immediately transferred ownership to Abdullah for one dollar, so that the vehicle could be registered in Abdullah’s name.

He testified that the purpose of the arrangement was that Abdullah’s conditions of release prevented him from being found in any vehicle not registered in his name, which made it difficult for him to work as a painter. [ 13 ] When Abdullah was arrested again in January 2015 for drug-related offences, he thereafter transferred ownership of the Jeep back to Mr. Amer for one dollar. Mr. Amer stated that his son only had a limited beneficial interest in the Jeep, and it was purchased at market value for Abdullah to use for employment only. Mr.

Amer acknowledged that Abdullah used the vehicle for all personal purposes as well as employment. [ 14 ] Abdullah obtained and maintained insurance for the Jeep, had sole possession of it, had the only keys, was the only one to drive it, parked the vehicle at his apartment and was free to use it outside of for work purposes. III. General Legal Principles A. Overview of Act [ 15 ] The Act gives the Minister authority to restrain and dispose of property acquired by illegal means (proceeds of crime) and property used in carrying out illegal acts (instruments of crime).

The Act ’s object and intention is to deter crime, alleviate societal costs of crime and compensate victims of crime, both the particular crime related to the property and crime in general: Alberta (Minister of Justice and Attorney General) v Pazder , 2010 ABCA 183 , 28 Alta. L.R. (5th) 1 at para 9 . [ 16 ] The procedures and burdens of proof on the Minister and Respondents under the Act are civil in nature, namely, a balance of probabilities: ss 14 and 51; Pazder at para10; Saskatchewan (Director, Seizure of Criminal Property Act 2009) v Kotyk , 2013 SKCA 140 , [2014] 3 W.W.R. 38 at para 33 .

[ 17 ] The Minister has the onus of demonstrating the illegality of the property; that is, that on a balance of probabilities the Jeep was an instrument of illegal activity: Act , s 19.93(1)(a), and that the cash was acquired by illegal means: Act , s 13(1)(a). [ 18 ] The Respondents have an onus, on a balance of probabilities, to establish an interest in the property (either the Jeep or the cash) and that they did not participate in or know of any illegality respecting the property: Act , ss 13(1)(

b) and 19.93(1)(b). Specifically, the respondents must establish on a balance of probabilities that they did not know, nor could they be expected to know, that the property had been acquired by illegal means or that the property was likely to be, or had been, used in carrying out an illegal act. [ 19 ] There are different tests to which these onuses apply for the Jeep and for the cash, and accordingly they will be addressed separately. IV. Jeep A. Statutory Test [ 20 ]

Section 19.93(1)(

a) puts the onus on the Minister to establish on a balance of probabilities that the Jeep was an instrument of illegal activity. Det. Best’s evidence clearly meets this standard, and Mr. Amer does not dispute that the Jeep was used as an instrument of illegal activity. [ 21 ] Under

section 19.93(1)(b), Mr. Amer has the onus to establish his interest in the Jeep; if he owned it at the relevant time, that he was not involved in using it for illegal purposes and did not know and could not reasonably be expected to have known of its use for that purpose; and if he obtained his ownership after the illegal activity, that he did not know and could not reasonably be expected to have known that it had been used in carrying out an illegal act. In this case, the analysis is simplified because if Mr.

Amer retained beneficial ownership of the Jeep, the Crown does not allege that he was involved in or knew of Abdullah’s use of it for illegal purposes; and if he only recovered his interest after Abdullah was arrested in January 2015, Mr. Amer concedes that by then he knew the Jeep had likely been used by his son for illegal activities (because of the nature of the charges on which he was arrested). [ 22 ] Accordingly, the only question is whether Mr. Amer retained beneficial ownership of the Jeep after he acquired it from a third party and transferred it to his son Abdullah for one dollar in in the fall of 2014.

Mr. Amer has the onus, on a balance of probabilities, of establishing that ownership. B. Legal Principles of Ownership [ 23 ] If Mr. Amer retained ownership of the Jeep after transferring it to his son for one dollar, it was pursuant to a trust.

Such a trust, referred to as a “resulting trust,” arises when title to property is in one party’s name but that party is under an obligation to return it to the original title owner because he or she gave no value for it: Pecore v Pecore , 2007 SCC 17 , 279 D.L.R. (4th) 513 at para 20 . [ 24 ] Where a parent makes a gratuitous transfer of property to an adult child, there is a presumption of resulting trust: Pecore , para 36 .

The presumption, however, is rebuttable and will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities: Pecore at paras 43 and 44 . [ 25 ] In this case, Mr. Amer relies heavily on his own testimony that his son only had a limited beneficial interest in the Jeep, and it was only registered in his name to satisfy his release conditions.

After-the-fact, self-serving testimony of this nature may be accepted as relevant, but considered only cautiously having regard to questions about its reliability and the fact that such statements are too easily fabricated to bring about a desired result: Pecore at paras 56-58 . [ 26 ] As recognized in cases dealing with attempts to rebut a presumption of resulting trust, evidence of intention that is contemporaneous with the transfer tends to be the most useful and reliable: Pecore , ibid ; Alberta (Minister of Justice and Solicitor General) v Davison , 2013 ABQB 553 , 570 A.R. 393 at para 32 ; Alberta (Minister of Justice and Attorney General) v Kim (February 15, 2013), Edmonton 1203 09227 (ABQB) at 15-16.

Such evidence may include, in the case of a vehicle, its use and control, where it was kept, responsibility for expenses and any factors that might support continued rights of the party claiming beneficial ownership. C. Findings [ 27 ] Mr. Amer argues that he has satisfied his onus on the only point in dispute, namely, that beneficial ownership remained with him at all relevant times. [ 28 ] The presumption of resulting trust would, in the absence of other evidence, be sufficient to satisfy Mr. Amer’s onus to prove his interest in the vehicle.

The Minister does not dispute that the evidence shows the Jeep to have been purchased with funds supplied by Mr. Amer, and the transfer to Abdullah was for nominal consideration. Thus, the Minister has the onus, on the civil standard of balance of probabilities, of rebutting the presumption of resulting trust: Pecore at para 43 . [ 29 ] The facts closest in time to the transfer from Mr. Amer to Abdullah weigh in favor of showing an intention to gift. Abdullah retained registered ownership throughout his use of the vehicle, until his arrest.

He maintained insurance, kept keys to the vehicle, parked it at his home, was the only person to drive it, and had day-to-day care and control. Even the original purchase was arranged by him, through an acquaintance. To this extent, the facts are similar to the Kim and Davison cases. In both of them, the transfer was said to assist adult children for work or educational travel. The children were the registered owners of the vehicles and had day-to-day care and control of them. In both cases, it was held that the presumption of a resulting trust had been rebutted and the transfers were held to be gifts. [ 30 ] Mr.

Amer urges that his case is different. Abdullah’s conditions of release required him to have registered ownership of any

vehicle he was using, and he was precluded from being at his parents’ home (thus making it impractical to store the vehicle with his father). Further, he argues that the initial double transfer (from a third party vendor to Mr. Amer, and then from Mr. Amer to his son) and then the transfer from Abdullah back to Mr. Amer after Abdullah’s arrest tend to indicate that Mr. Amer held true ownership throughout. [ 31 ] In effect, Mr.

Amer argues that the typical indicia of a gift have no weight because there are reasons other than a gift for the transfer to Abdullah. [ 32 ] These explanations have the merit of nicely coinciding with the conditions of release and Mr. Amer’s statement that the vehicle was purchased only because it was needed for Abdullah’s work. But the explanations only tend to reduce the weight of the indicia ; they do not prove the contrary on a balance of probabilities. [ 33 ] Further, there are difficulties with Mr. Amer’s explanatory testimony.

As the authorities warn, caution must be used in weighing after-the-fact explanations that are consistent with a desire to avoid a forfeiture of property. [ 34 ] Further, Mr. Amer’s testimony shows him to be inconsistent in his explanation. In his affidavit, he testified that Abdullah was granted judicial interim release on specific conditions, including that he not be found in a vehicle not registered in his name. He further stated: Abdullah was employed as a painter at the time of his release. As such, Abdullah required a vehicle to maintain his employment.

In an effort to help my son, I agreed to purchase a vehicle for him to use while working. He then described the purchase of a vehicle through an acquaintance of Abdullah and the transfer to Abdullah for one dollar. [ 35 ] During cross-examination, Mr. Amer acknowledged that it was not until about six months following Abdullah’s release that the Jeep was purchased.

In my view, that significantly weakens the link between purchase of the vehicle and the need for its use in Abdullah’s employment. [ 36 ] He offered that the explanation that in the interim, “he was getting a ride from somebody.” What precipitated the purchase of the vehicle was: “After he was having a ride, after that he doesn’t have a ride, so the guy – or quit or he moved somewhere else, so he have no ride, so he need a car.” That was a convenient, untestable explanation which would have been more convincing if included as part of the original evidence. [ 37 ] Further, even in his self-serving testimony, Mr.

Amer acknowledged that there was no expectation that his son would return the vehicle to him at any time: Q So there was no agreement that he had to return the vehicle back to you at anytime? A No. Q And is it fair to say that if he hadn’t been arrested in January 2015, he would have continued to use that vehicle? A If he didn’t get arrested, yes. [ 38 ] On all the evidence, I conclude that the Minister has rebutted the presumption of a resulting trust. All the indicia point to an intention to give full ownership to Abdullah.

The circumstances surrounding the acquisition, transfer, maintenance and use of the vehicle at the relevant times strongly point in the direction of a gift, as in the Kim and Davison cases. There are no contemporaneous indications (whether documentary or otherwise) to the contrary, and I find Mr. Amer’s explanations unconvincing. V. Cash A. Statutory Test [ 39 ] Section 13(1)(

a) of the Act gives the Minister the onus of establishing, on a balance of probabilities, that the cash was acquired or derived, directly or indirectly, by illegal means. [ 40 ] As part of meeting its onus, the Minister relies upon the presumption set out in section 52(1.1) which states, in part, that: …unless the contrary is proven on a balance of probabilities, cash . . . with a value greater than $10,000 found in the course of a police investigation [is] presumed to be proceeds of illegal activity when the cash . . . [is] found … (

b) in a bulk quantity or otherwise not associated with the packaging, storage, records, receipts or other evidence typical of legitimate business activity… [ 41 ] The Minister does not rely on the presumption in subsection (

a) for cash found “near or in conjunction with drugs or drug paraphernalia”, presumably because of the different locations of items seized in the apartment. [ 42 ] Mr. El-Rafih does not seriously contend that the presumption is not applicable. The cash of $25,500 was found in a bulk quantity and not stored with or associated with evidence consistent with legitimate business activity. Further, the contextual evidence of the cash being found in an apartment frequented by Abdullah (admittedly engaged in drug trafficking) and Mr.

Haji (alleged to be engaged in drug trafficking) and the presence of drugs and drug paraphernalia in the apartment are sufficient for the Minister to meet its initial onus.

[ 43 ] Mr. El-Rafih, then, bears the onus of proving the nature and extent of his interest in the cash under section 13(1)(b). The Minister does not allege that Mr. El-Rafih was involved in the illegal activities. [ 44 ] Mr. El-Rafih’s case is based solely on his assertion that the cash was the proceeds of his contracting and snow removal business. Again, I must bear in mind the caution applicable to self-serving, after-the-fact evidence of this nature. In all of the circumstances, I find Mr.

El-Rafih’s claim to an interest in the cash unconvincing and implausible. [ 45 ] The most basic difficulty is the lack of evidence that Mr. El-Rafih resided at the 80 Avenue Apartment. He maintained another residence where his children resided and where he received his mail. Searches of databases showed no connection between him and the 80 Avenue Apartment. He could not provide a lease or any documents bearing his name associated with or located in the residence. It was Abdullah’s name, not his, associated with household expenses. [ 46 ] There are serious inconsistencies which detract from the credibility of Mr.

El-Rafih’s testimony. It is highly improbable that he would have been unaware of the digital scale in a kitchen cupboard if, as he suggested, he resided in the apartment. He would have made regular use of the common areas, including the kitchen. Thus, his professed lack of knowledge either indicates untruthfulness or very limited, if any, association with the apartment. [ 47 ] In his affidavit and initially in his cross-examination, he suggested that when Abdullah was released on drug-related charges, he moved in with Mr.

El-Rafih and their agreement was that Abdullah could use one bedroom and the common areas of the apartment. Later, it developed that Abdullah lived with him initially at Mr. El-Rafih’s family residence on Pinemill Way for about a month; next, they resided together at a rented residence on Pinemill Mews for about six months; and only after that, for a couple of months, did they reside at the 80 Avenue Apartment. [ 48 ] Finally, the explanation of why $25,500 in cash constituted business proceeds is implausible. Mr.

El-Rafih quickly resiled from his contention that his was mostly a cash-based business, later acknowledging that most customers paid by cheque. The explanation that he needed cash for expenses if equipment broke down also does not survive scrutiny. He ultimately conceded that he would often pay business expenses by cheque or debit card, and would use cash only if a service provider’s debit machine or computer broke down or if something had to be paid for in the field and the provider did not have a portable machine. Such explanations do not explain why, as Mr.

El-Rafih suggested, he would hold about $25,500 in cash consistently available for a two or three month period. [ 49 ] Furthermore, Mr. El-Rafih suggested that part of the explanation for keeping this large amount of cash was a lag in time between receiving cash and getting to a bank to deposit the cash. However, on production of documents, it was proved from his bank statement that he made three deposits in the month leading up to Abdullah’s arrest. Yet he still claimed to have $25,500 in coat pockets in the apartment. [ 50 ] Mr. El-Rafih has the onus of proving his interest in the cash.

He attempts to meet that onus by bald assertions. There is no explanation why corroborative evidence, such as invoices or accounting records establishing a regular practice of conducting business in cash, was not tendered. Perhaps such evidence would be difficult to procure. That does not change the fact that Mr. El-Rafih has the onus.

He might at the least have tendered evidence from business customers, service providers or his accountant to corroborate the rather unusual business practices he asserts. [ 51 ] In brief, the facts show cash of $25,500 in two Ziploc bags found in two separate pockets of a coat hanging in an apartment frequented by drug dealers with no objective evidence of Mr. El-Rafih’s residence, other than his uncorroborated statements. I do not accept his testimony about either his occupancy of the apartment or the funds being from his business as established on a balance of probabilities.

Accordingly, he has failed to meet his onus. VI. Conclusions [ 52 ] For the reasons given, I find that the Minister has established its right to orders forfeiting the Jeep and the cash in the amount of $25,500 that were restrained by earlier court order. Heard on the 31 st day of July, 2015. Dated at the City of Calgary, Alberta this 15 th day of September, 2017. G.H. Poelman J.C.Q.B.A. Appearances:

Christopher Ghesquiere for the Applicant Katherine Beyak for the Respondents, Mohamad Amer and Mohamad El-Rafih