2018 SKPC 44, 2018 SKPC 44

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2018 SKPC 044 Date: July 17, 2018 Special Application: 991051948 (re: Information #24451671) Location: Saskatoon _____________________________________________________________________________ Re: Her Majesty the Queen as represented by the Office of the Director of Public Prosecutions - and - Seized Property Appearing: Ms. Cameron For the Crown Ms. Nichols On Her Own Behalf DECISION ON SPECIAL APPLICATION B.G. MORGAN , J Introduction

[1] Mr. Maier was recently convicted of two counts of conspiracy to traffic in cocaine and marijuana, and two counts ofpossession of both cocaine and marijuana for the purpose of trafficking. Mr. Maier was living with Ms. Nichols for a period of the timeframe covered in the charges against him, and using the Acadia vehicle registered in the name of Ms. Nichols to further his crimes. TheCrown now brings this application against each of them for forfeiture of that vehicle. Mr. Maier takes no position on this application;Ms.

Nichols represented herself at the forfeiture hearing. [2] The issue is whether or not the Acadia vehicle should be forfeited to the Crown. The Background [3] The Crown relies partly on evidence at the trial for Mr. Maier, as well as the evidence of Ms. Nichols at the hearing. I amsatisfied of the following factual background: 1) Ms. Nichols and Mr. Maier have been together approximately 10 years but ceased living together in mid-June, 2016; 2) from January 18, 2016 to April 1, 2016, Mr. Maier and Ms.

Nichols resided at 440 Dalhousie Crescent, along with their children; 3) from April 1, 2016 to June 16, 2016, the family resided together at 506 Blackthorne Crescent in Saskatoon. On the latter date, Ms.Nichols asked Mr. Maier to leave the residence; 4) the conspiracy charges of which Mr. Maier was convicted cover the time frame January 18, 2016 to July 27, 2016, that latter datebeing the date he was arrested; 5) the possession for the purposes of trafficking charges were from April 15, 2016 and are based on what was discovered by police whenthey searched the property of Mr.

Crumly, an alleged co-conspirator; 6) in brief, the evidence at trial consisted of, among other things, police surveillance, a tracking device affixed to the Acadia, and textmessages; 7) generally, paragraphs 56 through 70 of the trial decision (2018 SKPC 21 , 2018 SKPC 021) deal with my findings respectingspecific occasions on which Mr. Maier used the Acadia for activity that led to the conclusion that he was guilty of all four counts; 8) The evidence of one of the surveillance officers was that although Mr.

Maier occasionally drove other vehicles, while he and/or thevehicle were under surveillance, he would be driving the Acadia 90% of the time, with Ms. Nichols driving it the other 10%. During thetime frames in question, Mr. Maier was using the vehicle to further his criminal activity; 9) Mr. Maier sold his Cadillac to purchase the Acadia. There was no evidence as to when this happened, but it was well prior to the timeframe set out in the charges. There was no evidence as to why the vehicle was registered in Ms. Nichols name and I cannot infer it was soregistered for any improper purpose.

It was, essentially, the family vehicle. The Law

[ 4 ] The Crown brings this application under s. 16 of the Controlled Drugs and Substances Act ( CDSA ) and s. 462.37 of the Criminal Code . Either route requires as a pre-condition that Mr. Maier be convicted of a “designated offence”. Each of the four counts that Mr. Maier has been convicted on fit the definition under either section. [ 5 ] Mr. Maier takes no position on this application. He is clearly the offender, and I am satisfied that the Crown has met the requirements of the sections with respect to Mr. Maier. I order forfeiture of the interest of Mr.

Maier in the vehicle, assuming he in fact has any interest. [ 6 ] The issue is whether Ms. Nichol’s interest as registered owner should also be forfeited. She clearly has a valid interest in this property. [ 7 ]

Section 16 of the CDSA makes reference to “offence related property”, defined in that Act as meaning any property by

a) means of or in respect of which a designated substance offence is committed;

b) that is used in any manner in connection with the commission of a designated substance offence, or

c) that is intended for use for the purpose of committing a designated substance offence. [ 8 ] Based on all the foregoing, I am satisfied beyond a reasonable doubt that the Acadia sought to be forfeited by the Crown is in fact offence related property. The evidence was clear at the trial that Mr. Maier’s use of the Acadia in question was clearly for furtherance of his criminal activity. [ 9 ] The live question is whether or not Ms.

Nichols can fulfill the provisions of s. 19(3) of the CDSA , which essentially states that where a court is satisfied that she is the lawful owner of that vehicle (she is) that would otherwise be forfeited pursuant to an order under s. 16(1) (which it would be), and that she “appears innocent of any complicity in [these] offences or of any collusion in relation to such an offence, the Court may order that the property or part be returned to that person”. Analysis [ 10 ] Ms. Nichols testified in a very fair and impartial way, and I accept her evidence. Specifically, I do accept that after Mr.

Maier left the home in June 16, 2016, on many occasions, he would pick up the vehicle at night, and return it in the morning, so Ms. Nichols could use the vehicle to take the children to school. [ 11 ] I further accept that during the time in question, Ms. Nichols was a homemaker, and that she was not the one who did the financial dealings for the household. She knew of Mr. Maier`s work at a local detail shop, although she was not familiar with his earnings. [ 12 ] With respect to the reasons that she asked Mr. Maier to leave the home in June, her concern was that he was out with friends on most nights.

She knew he was using drugs, but she attributed that to the fact that he was, in her words, “always partying”. [ 13 ] Ms. Nichols stated that Mr. Maier never had cocaine in the house, and she did not know of Mr. Crumly, the co-accused on these charges, nor had she ever been to the house where the drugs were seized. [ 14 ] She testified that she had “no idea” that Mr. Maier was using the vehicle for the purpose of a drug operation and she stated she had no idea that he was selling drugs. Essentially, the position she laid out was that although she knew Mr.

Maier had dealt with drugs in the past (specifically, on June 30, 2010, Mr. Maier was given an 18 month CSO for possession of a

Schedule 1 substance for the purpose of trafficking, a fact Ms. Nichol`s was aware of ), she did not have actual knowledge that he was up to his old ways, as it were. [ 15 ] In cross-examination, it became clear that, around the time that the parties separated, Ms. Nichols had suspicions as to Mr.

Maier’s activities, but he never told her what he was doing. [16] In conclusion, it was clear to me on the evidence that Ms. Nichols did not actually have much trust in Mr. Maier, but she didnot want to ask for fear of what the answer might be. This was against a background of a frayed personal relationship that led to theseparation. [17] In argument, Ms. Cameron for the applicant took the position that, at the very least, Ms. Nichols was wilfully blind or recklessto the activities Mr. Maier was engaged in and found guilty of. She says there is no suggestion that Ms.

Nichols herself was breaking thelaw with respect to trafficking, but in all the circumstances, the only reason she did not have knowledge was due to her wilful blindness orrecklessness. She refers and relies to the case of R v Musselwhite, 2000 SKQB 458.

In that case, Justice Laing stated ”...the test [forwilful blindness] is not whether a person “should” have known or should “normally” have known, but whether the circumstances weresuch that the person was in fact suspicious and deliberately refrained from making inquiries so that he or she could remain in ignoranceof the truth.” (para 4). [18] The Supreme Court of Canada dealt with wilful blindness in R v Hinchy, , in which Cory, J accepted theapproach to determine wilful blindness as set out by Glanville Williams.

He accepted the proposition that “the rule is that if a party hashis suspicion aroused but then deliberately omits to make further inquiries, because he wishes to remain in ignorance, he is deemed tohave knowledge . . .” As Cory, J explained, “in other words, there is a suspicion which the defendant deliberately omits to turn intocertain knowledge”.

This is frequently expressed by saying that he “shut his eyes to the fact”, or that he was “wilfully blind”. [19] Later in that decision, Cory J explained the difference between wilful blindness and recklessness, stating that “recklessnessinvolves knowledge of a danger or a risk and persistence in a course of conduct which creates a risk that the prohibited result will occur. ..”. [20] In R v Rubachuk, 2009 ABPC 19, Judge Fradsham, in a totally different situation, had cause to undertake a review of the lawrespecting wilful blindness and, to a lesser extent recklessness, at paragraphs 74 to 77.

At para 76, quoting R v Jorgensen, SCC, he observes that “...Deliberately choosing not to know something when given reason to believe further inquiry is necessary cansatisfy the mental element of the offence.” [21] In this case, I find that the doctrine of wilful blindness is inapplicable to the conduct of Ms. Nichols. I cannot say that shewould have reason to believe that further inquiry was necessary vis-a-vis any possible criminal activity by Mr. Maier. He was using thefamily vehicle in the same fashion he always had.

There was nothing to suggest to her that he was in the drug trade in any way otherthan as a drug user, and though his involvement beyond his usage of drugs may have been a possibility, there was nothing to raise anysuspicions she may have had beyond that. [22] As noted in Rubachuk, at paragraph 76: A court can properly find wilful blindness where it can almost be said that the defendant actually knew. He suspected the fact; herealised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to denyknowledge.

This, and this alone, is wilful blindness. [23] As noted in paragraph 75 of Rubachuk, citing R v Sansregret, SCC, “... recklessness involves knowledge of adanger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur...”. I do not find thatdoctrine applicable to this application. [24] I grant the application against Mr. Maier and dismiss it against Ms. Nichols.

_________________________ B.G. Morgan, J