Her Majesty the Queen - v. -, 2011 SKPC 8

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 008 Date: January 17, 2011 Information: 24398227 Location: Melfort _____________________________________________________________________________ Between: Her Majesty the Queen - and - Viengvilysak Zaythavy Appearing: Mr. Trent Forsyth For the Federal Crown Mr. Ryan Calder As Agent for the Applicant Chaitavee Saykham IN THE MATTER OF AN APPLICATION FOR FORFEITURE UNDER S. 16(1) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT MORGAN B.G., J INTRODUCTION

[ 1 ] On February 19, 2010, Viengvilysak Zaythavy (hereinafter the offender), the spouse of Chaitavee Saykham (hereinafter the applicant), had a minor accident. This unfortunate mishap led to a series of events that culminated in the offender entering a guilty plea to a charge of possessing cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA) . [ 2 ] Section 5(2) is a “designated substance offence” within the

interpretation

section of the CDSA , and the vehicle that the offender was driving meets the definition of “offence related property” contained in the same section. The Federal Crown therefore brought this application under s. 16 of the CDSA , seeking forfeiture of that vehicle. As this vehicle was owned by the offender’s spouse, who is the applicant, notice was served upon her and a hearing was held as directed by s. 19 of the CDSA .

Irrespective of the merits of the applicant’s claim for the vehicle, an additional issue raised by the Crown is whether or not the offender is “lawfully entitled to possession of property or any part of any property” , that is, the vehicle, by virtue of his marriage to the applicant. If he is, the Crown suggests, his interest in the vehicle may be available for forfeiture. Before embarking on that inquiry, however, I shall first examine the applicants’ claim. THE LAW [ 3 ] The relevant portions of s. 16 and s. 19 of the Controlled Drugs and Substances Act are: 16.

(1) Subject to sections 18 to 19.1, where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall (

b) in the case of any other offence-related property, (ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen's Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law. 19.

(1) Before making an order under subsection 16(1) or 17(2) in relation to any property, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.

(3) Where a court is satisfied that any person, other than (

a) a person who was charged with a designated substance offence, or (

b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (

a) under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property, is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under subsection 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (

a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person.

[4] The rationale and procedure for the forfeiture process has been explained in a number of cases (See, for example, R. v. TongCam, 2010 SKPC 162, paras. 5 to 11; R. v. Paul Jonathan Paziuk, 2007 SKCA 63, paras. 10 and 11). In R. v. Craig, 2009 SCC 23 , 2009 SCC23, [2009] 1 S.C.R. 762, 306 D.L.R. (4th) 577, 244 C.C.C. (3d) 1, 66 C.R. (6th) 201, McLachlin, CJC and Rothstein,J., reiterated that the “...intention of Parliament was to deprive offenders and other complicit individuals of the tools of the trade: see R.v. Gisby, 2000 ABCA 281, 148 C.C.C. (3d) 549, at paras. 20 -21".

They went on to note: “In the case of offence-related property, thefocus is on the physical property itself and the criminal opportunity that continued possession of the property furnishes to the offender orother complicit persons” (at para. 81) [5] In Craig, the Supreme Court dealt with an Application for Forfeiture of an offender’s residence, bringing into play theprovisions of subsection 19.1, which deals specifically with forfeiture of a dwelling house.

That case held that the forfeiture principlesto be applied under s. 19.1(3) of the Act, again dealing with a dwelling house, are discrete and distinct from the principles to be appliedin sentencing an individual, and are to be determined only by reference to the principles set out in s. 19.1. I see no reason not to apply thesame reasoning to the application in this case under ss. 16 and 19; in s. 19.1 the issue is forfeiture of offence related real property whichis a dwelling-house, whereas under s. 19, the issue is the forfeiture of offence related property generally.

As Poziak notes,proportionality, (which is a consideration under s. 19.1(3) ), is not a factor to be considered when dealing with the potential forfeiture ofpersonal property. [6] In determining how to interpret the words “part of the property” in s. 19.1(3), McLachlan, CJC and Rothstein, JJ set out aprocess to follow to get to that stage. The first two portions of that process deal with forfeiture generally, and operate as follows: 72 In order to understand the words “part of the property” in s. 19.1 (3), it is helpful to see how they operate in practice. (

i) The first and seminal provision is s. 16(1) where a person has been convicted of a designated substance offence, all property related tothat offence is subject to forfeiture. The judge is given no discretion in the matter. Section 16(1) says that the judge “shall” order thatthe offence related property be forfeited to the Crown, in right of the province or in right of Canada, as the case may be: s. 16(1)(b)(i). (ii) Before the Court makes an order of forfeiture, anyone who “appears to have a valid interest in the property” must be given notice andmay be provided with an opportunity to be heard: s. 19(1).

If the Court is satisfied that the person is the lawful owner or is lawfullyentitled to possession of “any property or any part of any property that would otherwise be forfeited”, and the person is innocent of anycomplicity or collusion in the offence, the Court may order that the “property or part” be returned to that person: s. 19(3).

Section 19applies equally to all offence-related property subject to an order under s. 16(1). If the offence-related property is not real property thenthe court’s inquiry into forfeiture ends here with the forfeiture of any interest in that property which is not an interest held by an innocentthird party. (Emphasis in quote, See: R. v.

Craig, para. 72). [7] The test for the applicant to meet has been stated as follows: Section 20(4) [an application made by an alleged innocent third party after forfeiture] does not require Brooks to prove either beyond areasonable doubt or on a balance of probabilities her innocence of any complicity in the designated substance offence and that sheexercised all reasonable care. It is sufficient for Brooks to merely satisfy the judge that she “appears innocent” (R. v. Brooks, 2000SKQB 515 para. 20, emphasis in quote).

DETERMINATION [8] The evidence in this hearing consisted of that of the applicant and the offender. There was no issue as to who the registeredowner of the vehicle is; all parties agreed that the 2000 GMC Jimmy S series sport utility motor vehicle in issue is registered to theapplicant. [9] The applicant testified that, in addition to that vehicle, she owned one other vehicle at the time, a vehicle that her son madeuse of in order to go to school and work. She testified that both she and her husband used the 2000 GMC Jimmy. In her words,

sometimes the offender would ask to use it for work, and sometimes she would use it to go back and forth to work. I am satisfied on the evidence that the arrangement was essentially that either party would use the vehicle, although, as is common in many relationships in which one vehicle is shared, each would check with the other before using it, to ensure that it was not otherwise needed.

In practice, this usually meant that the offender asked the applicant if he could use the vehicle. [ 10 ] As to the events of February 19, 2010, the applicant testified that her husband asked to borrow the vehicle to take it to work that day. She said, in her words, “I had no idea” that he was going to be going to Prince Albert, or that he was using it to transport drugs, on that date, or on any date. [ 11 ] The background for this last statement is that the parties both resided in Regina, Saskatchewan. A Mr.

Phon (ph.) had phoned the offender, with whom he had a passing acquaintance, a few days prior to the offence date, telling the offender that if he were to drive from Regina to Prince Albert to drop off some cocaine, upon his return, he would be paid $1,500.00.

There is no question that while he was en route from Regina to Prince Albert, he passed through Melfort, where he had the mishap that led to his guilty plea. [ 12 ] As for the offender’s employment, the applicant testified that his regular job was shovelling snow, and this work was on as “as needed basis”;when the opportunity arose, he and a number of his friends would earn some income by shovelling snow. [ 13 ] The applicant’s job was doing housework at a hotel in Regina. She would often have her son drive her to work, but there would also be days when she would use the vehicle.

Around the time of the offence, she was unclear as to exactly what date she was working, as her

schedule varied. [ 14 ] The offender testified, and he also said that he shovelled snow. He stated that the couple only had one car. (I pause to note that this does not agree with the applicant’s evidence. However, this minor variance in the evidence does not cause me to reject the overall strength of the applicant’s case. I also note that it was apparent that each of the applicant and the offender were not entirely comfortable in using the English language, causing some difficulty at times. In any event, it is not material how many other vehicles the applicant owned at the relevant time).

The offender went on to say that he told his wife, on the morning of the offence, that he had to go work with friends, and that he asked her for the use of the vehicle. He was unequivocal in his denial that his wife had any idea as to what was going on. He said he did not tell her the real reason he wanted the use of it, that being to transport drugs. [ 15 ] As to why the vehicle was in the name of the applicant, the offender indicated that some time ago he and his wife had a cleaning company, which apparently did some contracting work. Cheques were issued in the name of the applicant.

The vehicle was purchased during the marriage, in the name of the applicant, for reasons that were not particularly clear, but appear to have something to do with the legitimate business concern the parties once had during their marriage. There is certainly no suggestion in the evidence, nor is it urged by the Crown, that there was anything amiss or improper with respect to the registration of the vehicle in the applicant’s name, that is, that such registration was part of a ploy to protect this asset from seizure as offence related property. [ 16 ] As for the offender’s relationship with Mr.

Phon, he stated he had met him many years ago, and that they were friends, albeit not close ones, knowing of each other mainly because they were members of the same ethnic community. However, he testified that at no time had his wife ever met Mr. Phon, nor had Mr. Phon been to their house. [ 17 ] On all of the evidence, I am fully satisfied that the applicant “appears innocent”, in the words of the statute, of any complicity or collusion in this offence.

All the circumstances point to a one time opportunity for the offender to dabble in the drug trade to the limited extent of couriering drugs from Regina to Prince Albert. There is no evidence to suggest that in any way the applicant was aware that this event was going to occur on February 19, or any other date, and there is no evidence to suggest that she had any knowledge whatsoever of this illegal enterprise. She has met the test she is required to meet.

As she is the lawful owner, I need not determine the second ground under which she could make this application (s. 19 refers to the lawful owner or a person who, in the alternative, is “entitled to possession of [the] property or any part of [the] property”). As lawful owner, she is entitled to the return of the vehicle if she appears innocent of complicity. She appears innocent of complicity. But what of the Crown argument that the offender himself may be “lawfully entitled to possession of [the] property or any part of [the] property”? [ 18 ] In my view, he is not so entitled.

Under the provisions of The Family Property Act , S.S. 1997, C. F-6.3, the most the

offender has, by reason of marriage, is an entitlement to make an application for division of family property. Every spouse inSaskatchewan has this right. However, even had he made such an application, the best that could be said was that he would then beputting in play a process to determine those rights. Such a claim would be subject to a number of exceptions and exemptions in TheFamily Property Act, and would of course require a judicial determination of what his ultimate entitlement to the family property wouldbe.

That entitlement might result in him being awarded ownership of the vehicle, but he is a long way from having that determinationmade at this point. [19] Further, s. 43 of The Family Property Act has particular application in this case. That

section reads as follows: 43(1) No provision of this Act vests any title to or interest in any family property of one spouse in the other spouse.

(2) Subject to subsections 18(2) and sections 28 and 50, any interspousal contract and any order of a court made pursuant to this Act, thespouse who owns the family property may sell, lease, mortgage, hypothecate, repair, improve, demolish, spend or otherwise deal with ordispose of the property as if this Act has not been passed. [20] Unless and until such time as the offender obtains an order to the contrary under The Family Property Act, full legalownership of this vehicle remains in the name of the applicant. In dealing with the provisions of The Matrimonial Property Act, S.S.1977, C.

M-6.1, the legislation that preceded The Family Property Act, Carter J. of the Court of Queen’s Bench was faced with anapplication by a spouse who wished to remove an encumbrance that had registered against real property she was granted sole ownershipof; an encumbrance had registered on that real property between the time of the application and the time of the order. As Carter J.succinctly put it: It seems obvious that, until an order is made, the property remains the property of the spouse who owned it before the order, or the jointproperty of the spouses as it was before the order.

Nothing in s. 20 or s. 43 suggests that any retroactivity can be given to an order. (See:Dowd v. Toronto-Dominion Bank (1989), (SK KB), 72 Sask. R. 250 (Q.B.) para. 12.) [21] In the result, I dismiss the application for forfeiture. Although I am satisfied that the vehicle is offence related property andthat it was used in the commission of a designated substance offence, the applicant appears innocent of any complicity or collusion in thecommission of that offence. She is the lawful owner of that vehicle. The vehicle is to be returned to the applicant. _____________________ B. G. Morgan, J