THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 PLAINTIFF/APPLICANT - v. -, 2023 SKKB 168

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 168 Date: 2023 08 09 Docket: KBG-RG-01531-2023 Judicial Centre : Regina BETWEEN: THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 PLAINTIFF/APPLICANT - and - NADIR DISHO DANO, TCU FINANCIAL GROUP CREDIT UNION, AND THE BANK OF MONTREAL DEFENDANTS/RESPONDENTS Counsel: Shauna Silver for the applicant FIAT TOCHOR J. AUGUST 9, 2023 [ 1 ] The Director applies, without notice, for orders under s. 6 of The Seizure of Criminal Property Act, 2009 , SS 2009, c S- 46.002 [ Act ], requiring two financial institutions to provide to the Director information about the bank account(

s) of a person. [ 2 ]

Section 6 of the Act is not specifically directed to financial institutions but, instead, provides a general authority for the court to make orders with respect to “any place or premises”. This

section states, in part: 6

(1) On an application without notice by the director, the court may make one or more of the following interim orders respecting property that is, or may become, the subject of an application for a forfeiture order made pursuant to this Part: (

a) an order authorizing the director to investigate and inventory the property of the person named in the application without notice as the respondent or defendant; (

b) an order authorizing the director to do all or any of the following: (

i) enter and search any place or premises named in the order; (ii) stop and search any vehicle described in the order;

(iii) seize and remove from any place , premises or vehicle searched anything that may be evidence of property that is proceeds of unlawful activity or an instrument of unlawful activity; [emphasis added] … [ 3 ] In support of this application, the Director refers to a number of unreported fiats in which similar orders were granted on a without notice basis: Director v Paul (12 July 2018) Regina, QBG-RG-02016-2018 (Sask KB); Director v Rempel (11 March 2019) Regina, QBG-RG-00097-2019 (Sask KB); Director v Letwiniuk (30 August 2019) Regina, QBG-RG-01069-2019 (Sask KB); and Director v Mote (29 November 2019) Regina, QBG-RG-03151-2019 (Sask KB). [ 4 ] In each of these fiats, the requested orders were made without reasons and the fiats generally state the draft order sought by the Director may issue.

There is no discussion of whether s. 6 is intended to apply to financial institutions. [ 5 ] The Director also refers to Director v Raditoiu (4 February 2021) Regina, QBG-RG-02003-2020 (Sask KB) [ Raditoiu ]. There, the court identified a possible jurisdictional issue but did not decide the application on that basis. Instead, the application was dismissed because notice was not given to the respondent.

The court’s fiat, in its entirety, states: The Director applies on a without notice basis for an extraordinarily broad order against bank records of the respondent, most of which the respondent has a reasonable expectation of privacy.

Section 6 of The Seizure of Criminal Property Act is not intended to authorize such a broad ranging order on a without [notice] basis, if at all. I note that the respondent is represented by counsel. The application is denied – should the Director wish to pursue this application, it should be done on notice to counsel for the respondent. [ 6 ] Raditoiu briefly states, in obiter , that s. 6 is not intended to authorize broad ranging orders on a without notice basis.

It also draws attention to the potential issue of whether s. 6 authorizes the making of an order to require financial institutions to disclose private information to the Director. [ 7 ] It may be noted, for example, that s. 6 does not confer specific authority to compel financial institutions to provide an individual’s banking information to the Director. Instead, the

section provides a broad, general authority for the Director to “investigate and inventory the property of the person” and to “seize and remove” “anything that may be evidence of property that is proceeds of unlawful activity”. [ 8 ] The affidavit filed by the Director acknowledges the privacy interests in a person’s financial records: 26 . This information is being sought to determine the appropriate direction to proceed.

An order of this nature is required as banks and credit unions are unable to provide this information in the absence of a court order due to privacy considerations [ 9 ] Here, the Director seeks the court’s authorization to override those privacy interests. However, whether the term “property” in the Act should be interpreted to include financial records which are subject to recognized privacy interests is not entirely clear. [ 10 ] On the basis of the evidence filed in this application, I am not satisfied I have the jurisdiction under s. 6 of the Act to make the order sought by the Director.

In light of this uncertainty, and without the benefit of submissions from the Director or the responding parties on this point, I dismiss the without notice application. However, I grant leave to the Director to re-apply with notice to the respondent and the two financial institutions so that the jurisdictional issue, and any other issues, may be considered. [ 11 ] I will also add some observations. I am mindful that on May 18, 2022 , the Legislature assented to The Seizure of Criminal Property Amendment Act, 2022, SS 2022, c 40 [ Amending Act ].

The amendments are not yet in force and I am unable to rely upon them in this application. However, two sections of the Amending Act may be considered noteworthy. [ 12 ] First, s. 2.3(1)(b)(

i) of the Amending Act authorizes the court to make an order permitting the Director to enter and search any place, including a financial institution , and to require production of records or property. This amendment specifies that the court may permit the Director to enter and search a financial institution: “Investigation orders 2.3

(1) On an application without notice by the director, the court may make one or more of the following investigation orders respecting property … (

b) an order authorizing the director to do all or any of the following: (

i) enter and search any place or premises named in the order, including a financial institution , private business or other place of business ;

(2) With an order made pursuant to clause (1)(b), the director may:

… (

e) require the production of and examine any records or property that the director believes, on reasonable grounds, may contain information related to property that is proceeds of unlawful activity or an instrument of unlawful activity; [Emphasis added] [ 13 ] This aspect of the Amending Act appears to directly address one of the concerns raised in Raditoiu . [ 14 ] Second, s. 23.2 of the Amending Act appears to go one step further and requires a financial institution to provide personal banking information of a person to the Director, without a court order or prior judicial authorization: “ Information from financial institution 23.2

(1) If the director has reasonable grounds to suspect that property is proceeds of unlawful activity … and that a person who … is the owner of … the property has dealt with a financial institution, the director may, in writing, request that the financial institution provide information, including personal information , about one or more of the following: … (

b) the person’s account or accounts with the financial institution, including the following: (

i) any information necessary to identify the account, including the account number and other particulars; (ii) the nature and type of account; (iii) whether the account is active; (iv) the names and addresses of all account holders; (

c) the person’s dealings with the financial institution; (

d) any other person’s interest in: (

i) the property; and (ii) the account or accounts mentioned in clause (b).

(2) A financial institution must comply with a request made pursuant to subsection (1) within the period specified in the request.

(3) A financial institution from which information is requested pursuant to this

section shall not disclose to any other person that the director has requested information ”. [Emphasis added] [ 15 ] There is no similar provision, specifically directed at financial institutions, in the current Act . Section 23(2)(

b) of the current Act permits the Director to “collect information, including personal information, from a government institution, local authority or other source … to conduct proceedings pursuant to this Act ”. Section 23(3)(

b) of the current Act provides that a government institution, local authority or other source “must provide the director with information requested by the director”. [ 16 ] In this application, it is not necessary to consider any potential jurisdictional or constitutional issues that may arise from the implementation of s. 23.2 of the Amending Act . [ 17 ] As well, in this application and without submissions from the parties, I am unable to make any finding as to whether s. 6 of the current Act was intended to apply to financial institutions.

This issue, and any other issues, must be left for consideration at a later time. [ 18 ] In conclusion, and as set out above, the Director’s without notice application is dismissed, with leave granted to re- apply upon notice to the named person and financial institutions. J. M.D. TOCHOR