THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 Applicant - v. -, 2023 SKKB 243

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 243 Date: 2023 11 16 Docket: KBG-RG-01768-2023 Judicial Centre: Regina ___________________________________________________________________________ BETWEEN: THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 Applicant - and - NADIR DISHO DANO, TCU FINANCIAL GROUP CREDIT UNION and THE BANK OF MONTREAL Respondents Counsel: Shauna R. Silver for the applicant Crown Brian R. Pfefferle, K.C. for the respondent, Nadir Disho Dano ___________________________________________________________________________ FIAT CURRIE J.

November 16, 2023 ___________________________________________________________________________ [ 1 ] Earlier this year the director under The Seizure of Criminal Property Act, 2009 , SS 2009, c S-46.002 , applied without notice for an order under that Act . The director applied for an order requiring two financial institutions, TCU Financial Group Credit Union and the Bank of Montreal, to provide to the director information about the bank accounts of Nadir Disho Dano. [ 2 ] That application came before Justice Tochor, who identified an issue as to the jurisdiction of the court to make the requested order.

With that issue in mind, he dismissed the application without notice and he granted leave to the director to re-apply, with notice to Mr. Dano and the two financial institutions. ( Saskatchewan (Director under The Seizure of Criminal Property Act, 2009) v Dano , 2023 SKKB 168 .) [ 3 ] The director then re-applied, giving notice of the application to Mr. Dano and the two financial institutions, and the application came before me. The application was unopposed. I granted the requested order, and these are my reasons for doing so. Requested relief [ 4 ] The director applied under s. 6(1)(

a) and (

b) of the Act for an order requiring the financial institutions to: … identify any bank accounts associated with, or previously associated with [Mr. Dano] for the period between January 23, 2023 and the date of the Order and produce for the Director account statements and summaries, and transaction history records for said account(

s) for the period of January 23, 2023 and the date of the Order; Issue [ 5 ] The Act is aimed at identifying and obtaining forfeiture of property that is proceeds of unlawful activity, or that is an instrument of unlawful activity. On this application, the director provided the evidentiary basis for making the requested order. The factual basis for making an order is not in issue. [ 6 ] The issue is whether s. 6 applies to a financial institution and to bank account information being held by that institution. Statutory provisions [ 7 ] These are the relevant provisions of s. 6: 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; …

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

a) enter at any time and search any place or premises named in the order; (

b) stop and search any vehicle described in the order; (

c) open and examine the contents within any trunk, box, bag, parcel, closet, cupboard or other receptacle that the director finds in the place, premises or vehicle; (

d) 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; (

e) remove, for the purpose of making copies, any records examined pursuant to this section; and (

f) 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.

(4) Unless it clearly would not be in the interests of justice, the court shall make an order pursuant to subsection (1) if it is satisfied that there are reasonable grounds to believe that the property is proceeds of unlawful activity or an instrument of unlawful activity. …

Interpretation of s. 6 [ 8 ] The issue before me arises from the broad terms that are used in s. 6 of the Act . The

section empowers the court to authorize the director to enter and search a “place or premises”, along with searching and seizing documents and information obtained there. The

section does not expressly refer to credit unions or banks, or to people’s financial information. The question arises whether the

section would apply to financial institutions only if it specifically referred to financial institutions. [ 9 ] In generally understood terms, credit unions and banks are “places” or “premises”. They are locations that can be visited physically and that, if necessary, can be searched physically. In this case, the director could have been authorized to physically attend at branches of the credit union and the bank, and there to conduct searches for the information about Mr. Dano’s accounts. This situation falls within the description in s. 6. [ 10 ] Furthermore, the

section goes on in s. 6(3)(

d) to refer to the kind of information that may be sought and obtained pursuant to a s. 6 order. That clause provides that – having obtained a s. 6 order from the court – the director may: (

d) 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; [ 11 ] Here the director could have been authorized, on attending the credit union or the bank, to require persons there to produce its records of Mr. Dano’s accounts. This situation falls within the description in s. 6. [ 12 ] This leads to the next question – whether money constitutes “property” under the Act . It does: (a) “Property” is defined in s. 2(

q) of the Act as “real or personal property, and includes any interest in real or personal property”. (b) “Personal property” is defined in s. 2(

l) of the Act as “personal property as defined in The Personal Property Security Act, 1993 ”. (c) “Personal property” is defined in s. 2 (ff) of The Personal Property Security Act, 1993 , SS 1993, c P-6.2 , as “goods, chattel paper, investment property, a document of title, an instrument, money or an intangible”. [ 13 ] On its face, then, s. 6 of the Act applies to property that is money, and it applies to money that may be being held in a financial institution such as a credit union or a bank. [ 14 ] The relief that the director requested here falls under these provisions.

With reference to s. 6(4), the evidence satisfied me that there are reasonable grounds to believe that money in Mr. Dano’s credit union and bank accounts “is proceeds of unlawful activity or an instrument of unlawful activity”, those proceeds being money. Those records are at a place or premises, being a credit union and a bank, where one may expect to find records containing information relating to money being held to Mr. Dano’s credit. [ 15 ] As an aside, I note that the order requested – and granted by me – directs the financial institutions to provide the specified documentation to the director.

This is a practical and less intrusive implementation of the s. 6 power than is an order

authorizing the director to physically attend the financial institutions and to conduct searches there for the pertinent records. For this reason I granted the order in the above terms. Effect of the imminent amendment [ 16 ] In 2022, the Legislature passed an amendment to the Act , being The Seizure of Criminal Property Amendment Act, 2022 , SS 2022, c 40 .

Among other provisions the amendment, which is not yet in force, elaborates on the reference to “place or premises” by adding the words “including a financial institution, private business or other place of business”. [ 17 ] One may ask whether this amendment effectively is an admission by the Legislature that s. 6, as it now stands, does not apply to financial institutions, private businesses or other places of business. No reason is apparent for so concluding.

As I have discussed, the wording of s. 6 as it now stands is sufficiently clear to apply to financial institutions and (by the same analysis) private businesses and other places of business. [ 18 ] Furthermore, the amendment includes an expansive definition of “financial institution”.

Rather than concluding that the amendment signals that s. 6, as it now stands, does not apply to a financial institution, I conclude that the Legislature has introduced the specific reference to a financial institution in order to more clearly define the institutions to which the Act applies. [ 19 ] The amendment does not contradict the

interpretation of s. 6 that I have reached. Privacy interests [ 20 ] Certain privacy interests attach to people’s financial information. No argument based on privacy interests has been put to me on this application, though. As I have said, the application was unopposed. [ 21 ] If an issue were raised in this regard, I might explore the effect of the provisions of s. 6 on Mr. Dano’s privacy interest in his bank account. That interest might be weighed against the goal of statutes such as the Act .

That goal is “to take the profit out of crime”, as Justice Binnie put it in Chatterjee v Ontario (Attorney General) , 2009 SCC 19 at para 23 , [2009] 1 SCR 624 . Weighing the privacy interest and the goal of the Act might lead to a conclusion as to whether a s. 6 order “clearly would not be in the interests of justice” within the meaning of s. 6(4). [ 22 ] The Court of Appeal, though, has interpreted the phrase “clearly would not be in the interests of justice” in the context of s. 7 of the Act , dealing with forfeiture of property.

In Saskatchewan (Director under the Seizure of Criminal Property Act, 2009) v Mihalyko , 2012 SKCA 44 , 348 DLR (4th) 756 , Justice Vancise said at paragraph 30 that the phrase refers to an order that would be “draconian and unjust or manifestly harsh”. [ 23 ] Notice of this application was given to those parties who had an interest in the requested relief. No one argued that the order under s. 6 should not be granted, on the basis of privacy rights or for any other reason.

In the absence of argument on the point, I do not conclude that granting the order “clearly would not be in the interests of justice” in this case. Nor do I conclude, more generally, that a person’s privacy interest in his or her bank account outweighs the goal of the Act so as to render s. 6 inapplicable to financial institutions and the account information held by them. Applying for the order without notice [ 24 ] One other question remains. That is whether an order under s. 6(1) may be granted by the court on an application without notice.

In this case I have granted the order on an application with notice, so this is not a live issue before me. Nonetheless, the director asked that I address the question and I will do so, having identified that my remarks are obiter . [ 25 ] The starting point is s. 6(1) of the Act , which specifically provides that such an order may be applied for and granted without notice . The reasoning behind this statutory provision is not difficult to follow.

For example, if a person who is believed to have money that is proceeds of unlawful activity receives notice of an application to look into his or her bank accounts, it is foreseeable that – if that person actually has proceeds of crime in an account – that person will move and hide the money before an order is granted. If an order cannot be obtained without notice, the goal of the Act may be frustrated. [ 26 ] Of course, it always is open to the judge who reviews a without notice application to direct that the application must be brought with notice , as occurred in this case.

There can be different reasons for doing so.

Sometimes the reason is that the judge perceives that a certain party has a substantial interest in the requested relief, and as a matter of fairness the judge decides that that party should have an opportunity to make submissions before such relief is granted. [ 27 ] The starting point remains, though, the statutory provision expressly authorizing the court to grant an order without notice. [ 28 ] I add the observation that, where an order is sought and obtained without notice, a person who is affected by the order is entitled to apply to the court to review the order, potentially to set it aside or vary it.

This entitlement is set out in Rule 10-3(5) of The King’s Bench Rules . Conclusion [ 29 ] An order under s. 6 of The Seizure of Criminal Property Act, 2009 may be made with respect to a financial institution and to bank account information being held by that institution. That being the case, I granted the application of the director. “G.M. Currie” J. G.M. CURRIE