Her Majesty the Queen - v. -, 2014 SKPC 176

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 176 Date: October 7, 2014 Information: 37398490 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andrew Maurice Pelly Appearing: Dan Heffernan For the Crown Sheena Smytaniuk Appearing on her own IN THE MATTER OF AN APPLICATION FOR FORFEITURE UNDER S. 16(1) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT AND IN THE MATTER OF AN APPLICATION UNDER SECTION 19(3) OF THE CONTROLLED DRUGS AND SUBSTANCES ACT H. M. HARRADENCE , J INTRODUCTION: [ 1 ] Andrew Pelly pled guilty before me on March 13, 2014, in relation to the following charges:

On or about the 15 th day of September, A.D. 2013 at or near Prince Albert, Saskatchewan did: Unlawfully have in his possession a controlled substance to wit: cocaine for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act ; and Have in his possession Canadian currency to wit: two thousand dollars, of a value not exceeding five thousand dollars, knowing that all or part of that currency was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to

section 354 and 355 of the Criminal Code . [ 2 ] As a result of a joint submission, Pelly was sentenced to eighteen months to be served in a Provincial Correctional facility. As part of this joint submission, he agreed to the forfeiture of 112.9 grams of cocaine, an iPhone, and two thousand dollars Canadian currency. In addition, the Crown applied to forfeit a Dodge Durango that he was driving at the time of his arrest.

The accused, Pelly, resisted this application stating that this vehicle had been purchased by the mother of his children, Sheena Smytaniuk, and she wished to make an application for the return of this vehicle. [ 3 ] Ms. Smytaniuk was provided with notice. The hearing proceeded on August 20, 2014, before me. THE FACTS: [ 4 ] On September 14, 2013, the Prince Albert City Police received confidential information that the offender, Andrew Pelly, would be travelling from Saskatoon to Prince Albert in a white Dodge Durango with a large quantity of cocaine.

At 1:54 hours on September 15, 2013, a member of the Prince Albert City Police stopped a white Durango on the west side of Prince Albert. The vehicle was registered to the offender, Pelly, and he was suspended from driving. Initially, he was detained on the basis of his driver’s licence suspension, but eventually, a decision was made to search him and the vehicle. The police seized two thousand dollars Canadian currency as a result of the search of his person. In the ashtray of the vehicle, as well as in the back seat, the police seized four bags of cocaine weighing a total of 112.9 grams.

The police also seized, from the front of the vehicle, a digital scale. These were the facts that were agreed to by counsel as part of the sentencing. [ 5 ] At this hearing, the Crown filed an agreed statement of facts signed by the offender, Pelly. This agreed statement of facts, in its entirety, reads as follows: The following facts are admitted and agreed for the purpose of the forfeiture hearing with respect to a white 1998 Dodge Durango motor vehicle bearing Saskatchewan licence plate #113IZK: 1.

On September 15, 2013, the Respondent, Andrew Maurice Pelly was operating a white 1998 Dodge Durango motor vehicle bearing Saskatchewan licence plate #113IZK (“the said vehicle”), in the City of Prince Albert, Saskatchewan. 2. The said vehicle was stopped by the police on September 15, 2013 and the Respondent, Andrew Maurice Pelly, was detained. 3. The said vehicle was registered to the Respondent, Andrew Maurice Pelly. 4.

The said vehicle was searched by police, and certain items were located and seized from the interior of the vehicle, including the following: • 112.9 grams of cocaine; • digital scale; • package of gastrolyte. 5. Following his arrest on September 15, 2013, police also seized from the personal possession of the Respondent, Andrew Maurice

Pelly $2,000.00 in cash. 6. The Respondent, Andrew Maurice Pelly was charged with, among other things, possession of cocaine for the purpose of traffickingcontrary to section 5(2) of the Controlled Drugs and Substances Act. On March 13, 2014, the Respondent Andrew Maurice Pelly wasconvicted and sentenced for possession of cocaine for the purpose of trafficking in relation to the drugs seized from the said vehicle onSeptember 15, 2013. [6] At this hearing, Ms. Smytaniuk testified. She stated in her evidence that the Durango was purchased by her in March 2013for two thousand dollars.

She testified that she had borrowed the money from a friend and still owed five hundred dollars. She filed anote from the friend, but I believe this note is hearsay, and therefore, has no evidentiary value in this hearing. In her evidence, Ms.Smytaniuk was vague as to whether a bill of sale existed and was equally vague as to where she purchased the vehicle, saying she foundthe vehicle on-line and purchased it on the west side of Prince Albert. She could not remember the name of the vendor. Ms. Smytaniukindicated in her testimony that she had lent the vehicle to the offender.

He used it for approximately five months. She said that she andthe offender, who is the father of her child, were now separated. [7] In cross-examination, Ms. Smytaniuk acknowledged the vehicle was not registered to her nor did she register any type of lienor interest in the personal property registry.

ANALYSIS: [8] This application by Sheena Smytaniuk is brought by virtue of s. 19(3) of the Controlled Drugs and Substances Act whichreads: 19(3) Subject to an order made under subsection 19(3), if a court is satisfied that the impact of an order of forfeiture made undersubsection 16(1) or 17(2) in respect of real property would be disproportionate to the nature and gravity of the offence, the circumstancessurrounding the commission of the offence and the criminal record, if any, of the person charged with or convicted of the offence, as thecase may be, it may decide not to order the forfeiture of the property or part of the property and may revoke any restraint order made inrespect of that property or part. [9] As Mr.

Heffernan fairly pointed out, there is no suggestion in the evidence that Ms. Smytaniuk is anything but innocent ofany complicity in the offences of Mr. Pelly. I do not have any evidence to suggest that Mr. Pelly was actively involved in the cocainetrade or whether this was an isolated instance. There is no evidence that Ms. Smytaniuk even suspected the illegal activity of Mr. Pelly. Based on the evidence presented, my finding is that Ms. Smytaniuk is innocent of any complicity in the offences for which Mr. Pelly hasbeen convicted. [10] As the vehicle was registered to Mr.

Pelly at the time of the offences, the issue is whether Ms. Smytaniuk is lawfully entitledto the property or any part of it. If so, I must determine whether I should order that property or any part of it to be returned to her. [11] Mr. Heffernan filed two cases to assist the Court. In R v Paziuk, 2007 SKCA 63, 221 CCC (3d) 518; 293 Sask R 277, at para11, [Paziuk], Chief Justice Klebuc (as he then was) described s. 19(3) of the Controlled Drugs and Substances Act in the followingterms: … This

section allows innocent parties who have valid interest in the property to apply for an order of restoration of the property. However, the innocent party must be either the lawful owner or lawfully entitled to possession of the property which would otherwise beforfeited.

The Court may order in its discretion that the property be returned to the innocent person. [12] Given the subject matter in the Paziuk decision and this decision is a vehicle, personal property, the Chief Justice goes on toclearly state that proportionality is not a consideration: [16] As stated above, the vehicle was owned by the respondent and the parents are not lawfully entitled to possession of the property. The sentencing judge had no discretion but was required to order forfeiture and erred in failing to do so.

He further erred in consideringproportionality as a factor to be considered when dealing with the forfeiture of personal property. [13] The Crown also filed the decision of His Honour Judge Morgan in R v Zaythavy, 2011 SKPC 8 , 2011 SKPC 008. Judge Morgan concluded that the application for forfeiture by the Crown should be dismissed and the vehicle returned to the applicant

who was the offender’s spouse. The spouse was the lawful owner of the vehicle. Judge Morgan reached the conclusion that the spouse appeared innocent of any complicity in the offences. [ 14 ] In R v Fercan Developments Inc. , [2013] OJ No 748 , Justice West, of the Ontario Court of Justice, clearly resolves the issue of which party bears the onus in s. 19(3) applications. Justice West concludes: 54 Where Parliament has not clearly indicated which party bears the onus of proof a court must be guided by the principles of statutory

interpretation. The Supreme Court of Canada has repeatedly cited with approval Sullivan's (formerly Dreidger'

s) approach to the

interpretation of statutes: • Today there is only one principle or approach, namely the words of

an Act need to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. 55 Some recent examples where the Dreidger (now Sullivan ) approach has been recognized include: Ontario v. Canadian Pacific Ltd.; R. v. Rizzo & Rizzo Shoes Ltd.; R. v. Gladue; R. v. Araujo; R. v. Sharpe; R. v.

Bell ExpressVu Limited Partnership . 56 I agree with the respondents' submission that "absent express language to the contrary, ... it would be inconsistent with the plain language of the text of section 19(3) to read in any onus upon the third party owner, particularly where the onus is specified in both

section 16 and

section 20 applications." The section 16(1) application for forfeiture, brought by the Crown, is subject to the provisions of

section 19. As Chief Justice Lamer in Ontario v. Canadian Pacific Ltd. explained: • ... the first task of a court construing a statutory provision is to consider the meaning of its words in the context of the statute as a whole. If the meaning of the words when they are considered in this context is clear, there is no need for further

interpretation. The basis for this general rule is that when such a plain meaning can be identified this meaning can ordinarily be said to reflect the legislature's intention ...

Thus, the best way for the courts to complete the task of giving effect to legislative intention is usually to assume that the legislature means what it says, when this can be clearly ascertained. 57 I agree with the respondents' argument that the language contained in section 19(3) "speaks to a conclusion which the court is to draw, rather than an onus." The appearance of innocence of complicity or collusion in relation to the designated substance offence on the part of the lawful owner or person lawfully entitled to possession is a factual conclusion and, in my view, can hardly be a clear indication of an intention to place an onus on the respondents to the Crown's application for forfeiture. 58 As I have indicated previously, it is my view that because the Crown brings the forfeiture application, in which the issue of the return of the property is considered under section 19(3), the Crown presumably bears the onus throughout the entire application.

Further, as Justice Doherty in Wilson points out, the judge hearing the Crown's forfeiture application may decide that the offence-related property, although forfeitable, is not available for forfeiture because the property should be returned to the innocent lawful owner. [ 15 ] I agree that the Crown bears the onus throughout the forfeiture application.

Applying this onus, I must determine whether Sheena Smytaniuk provided credible evidence, and further, I must determine whether she is lawfully entitled to possession of the truck despite it being validly registered and licenced in the offender’s name. [ 16 ] I found Sheena Smytaniuk to be an honest witness. Her vague answers on the circumstances of the purchase of the truck are unusual and cause me to pause, but do not cause me to reject her testimony.

I accept that she paid for the truck and lent it to the offender and allowed him to register it in his name. [ 17 ] As indicated in Paziuk , ultimately the issue of forfeiture is discretionary. As indicated, I am satisfied that Sheena Smytaniuk was not complicit in the illegal activity of the offender. There is also no evidence that she had knowledge or even suspected his illegal activity. Further, I am satisfied by her evidence that she paid for the Dodge Durango.

I am of the view that although the vehicle was registered to the offender at the time of the offence, and he would therefore be the lawful owner, Sheena Smytaniuk does have a valid claim to possession of the vehicle. I have concluded that she would be entitled to possession as this distinction was recognized by His Honour Judge Vanek in R v Nimbus News , 11 CRS 315 at page 322: In this context, “lawful owners” means entitled as owner and “lawful possession” is used in the sense of being entitled to possession.

[ 18 ] Given my findings of fact as set out above, I conclude that it is reasonable and appropriate to decline the Crown’s forfeiture application. In doing so, I adopt the rationale of His Honour Judge Deshaye in the unreported decision in the matter of the Queen v Richard Musselwhite , dated September 15, 1999, where he states at page 7, in part, as follows: Even though the newer provisions of the CDSA contemplate forfeiture of property which is “offence related”, the discretion to allow return or restoration has not been legislated away.

As I mentioned, the CDSA and the Criminal Code clearly contemplate restoration in a proper case. The statutory provisions do not delineate the criteria the judge or justice should apply in determining if return should be made, other than innocence of complicity or collusion in relation to an offence (s. 19(3)).

Where on the face of the matter there is evidence of innocence on the part of the applicant and no other evidence to dislodge the presumption of innocence, it would be difficult to contemplate circumstances where restoration should not be ordered. [ 19 ] In these circumstances, I am satisfied that the Dodge Durango seized as a result of this investigation, should not be available for forfeiture and should be returned to Ms.

Sheena Smytaniuk pursuant to s. 19(3) of the Controlled Drugs and Substances Act . [ 20 ] Dated this 7 th day of October, A.D. 2014, at the City of Prince Albert, in the Province of Saskatchewan. _________________________ H. M. Harradence, J