THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 PLAINTIFF/APPLICANT - v. -, 2023 SKKB 262

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 262 Date: 2023 11 06 Docket: KBG-RG-01988-2023 Judicial Centre : Regina BETWEEN: THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 PLAINTIFF/APPLICANT - and - A.R. AND THE ATTORNEY GENERAL OF CANADA DEFENDANTS/RESPONDENTS Counsel: Shauna Silver for the plaintiff No one appearing for A.R. No one appearing for the Attorney General of Canada FIAT WILDEMAN J.

DECEMBER 6, 2023 [ 1 ] The Royal Canadian Mounted Police seized $67,480.00 in Canadian currency [Seized Monies] on or about June 17, 2021 as a result of an investigation into the activities of A.R. and J.F. [investigation].

The Director [Director] appointed pursuant to The Seizure of Criminal Property Act, 2009, SS 2009, c S-46.002 [ Act ] applies for an order forfeiting the Seized Monies to the Crown in right of Saskatchewan pursuant to s. 3 and s. 7 of the Act. [ 2 ] This application raises the issue whether the Director may rely upon factual findings related to the behaviour and practices consistent with drug trafficking in other cases to argue the facts of this case. [ 3 ] The Director submits that the Seized Monies are connected to the trafficking of contraband cigarettes.

The Director does not seek to admit expert evidence in this application, which was confirmed by her counsel during oral submissions. However, the Director argues that certain behaviour or factors are consistent with unlawful activity, including:

(

a) the use of a rental vehicle during the late hours of the evening; (

b) travel from a source point for drugs to a source destination for drugs; (

c) the presence of multiple cellular phones in the vehicle; (

d) the quantity and manner in which cash was bundled and stored; and (

e) the meaning of certain terms that are used in relation to contraband cigarettes. [ 4 ] With respect to some of these factors, the Director relies upon the affidavit of Corporal Alexandros Giannoulis, who was involved in the investigation. Cpl. Giannoulis indicated in his affidavit that he has been involved in over 110 drug trafficking investigations and provided some evidence of his experience with behaviour that is indicative of drug trafficking and the meaning of certain terms used in messages exchanged with A.R. and J.F. However, the Director does not seek to have Cpl.

Giannoulis qualified as an expert in this application. [ 5 ] In her written submissions, the Director’s counsel relies upon other cases where the court concluded on the evidence before it that certain behaviours or practices were indicative of or consistent with unlawful activity and suggests that I can come to a similar conclusion in this case.

In many of the other cases, the court had expert evidence before it on the practices and types of behaviour that are indicative of unlawful activity, in particular drug trafficking. [ 6 ] For example, in this case, J.F. and A.R. were observed driving a rental vehicle at 4:16 a.m.

In her written submissions, the Director’s counsel states that “[i]ndividuals who fear detection by police may employ the use of a third party vehicle so as to remain anonymous while travelling, to try to prevent the vehicle from being subject to forfeiture if the individual is apprehended, and to plausibly deny knowledge of the contents of the vehicle” (para. 53). In support of this statement, the Director’s counsel relies on Director Under the Seizure of Criminal Property Act, 2009 v Nauzinor , 2020 SKQB 154 para 31 [ Nauzinor ]. However, para. 31 of the Nauzinor decision is an extract from the affidavit of Mr.

J. David Henry, who was qualified as an expert by the court in that case to provide expert testimony in relation to trafficking controlled drugs and substances. [ 7 ] During oral submissions, I asked counsel for the Director for her position on what use I can make of expert evidence summarized or accepted by the court in other decisions that is not before me in this application.

Counsel for the Director offered to provide a supplementary brief on this issue, which has been filed with the court. [ 8 ] The Director relies upon the Saskatchewan Court of Appeal’s decision in Saskatchewan (Seizure of Criminal Property Act, Director) v Kotyk , 2013 SKCA 140 , 427 Sask R 193 [ Kotyk ] to support the assertion that the court can use common sense to find that certain factors are consistent with unlawful activity.

Further, the Director argues that where a particular factor is repeatedly recognized by the court as being consistent with certain unlawful activity, the court can, and should, take notice of that factor as a suspicious or unusual circumstance. [ 9 ] In Kotyk , the Court of Appeal considered the use of expert evidence in forfeiture applications under the Act.

The chambers judge qualified Lise Gray as an expert “with respect to illicit drug activities and practices” (para. 42) and relied on her evidence to show that the “denominations and packaging are consistent with denominations commonly used in the drug trade” (para. 42). However, the chambers judge did not mention Ms. Gray’s opinion on the ultimate issue before the chambers judge – that is, whether the funds were derived directly or indirectly from the trafficking of illicit drugs.

The appellant argued that this was an error. [ 10 ] After reviewing the law on whether opinions on the “ultimate issue” are admissible as expert evidence, the Court of Appeal noted that the chambers judge was not bound to accept Ms. Gray’s opinion on the ultimate issue. Rather, it was open to him to reject it on the footing that it was superfluous and related to a matter in which he did not need her assistance in drawing proper inferences from the facts as a whole. The Court of Appeal went on to identify other areas where expert evidence was not necessary: [47] . . .

For instance, the Chambers judge did not need expert evidence to help him understand the implications of the strange and changing and conflicting stories told by the two men while under criminal investigation. Nor did he need expert evidence to assist him in understanding the general implications of the possession by the two men of a huge amount of hidden and strangely assembled cash for the purported purpose of legitimate commercial transactions of the kind and magnitude they said they had in mind. And on it goes.

It might be noted that Lise Gray’s reasoning in relation to the likely source and intended use of the money, when viewed in the context of the whole of the facts of the case, is essentially the same as the reasoning employed by the Director in his submission to the Chambers judge.

The issue reduced to what inferences of fact the Chambers judge might properly have drawn in relation to the ultimate issue he was called upon to decide. [ 11 ] It is important to note that with respect to expert evidence, the issue before the Court of Appeal was whether the chambers judge erred in principle in either ignoring or rejecting opinion evidence on the ultimate issue he was called upon to decide.

The Court of Appeal concluded that it was for the chambers judge to decide the ultimate issue having regard to what inferences of fact could be reasonably drawn from the established facts. [ 12 ] I agree with the Director that in Kotyk , the Court of Appeal provided guidance on the question to be asked in forfeiture applications under the Act - that is, whether, on a common sense view of the situation, it was more likely than not the property in question was proceeds of, or an instrument of, unlawful activity. [ 13 ] However, in my view, the Court of Appeal’s decision in Kotyk does not address whether it is permissible to adopt expert evidence (which is not before me in this case) referenced by the court in other cases.

Further, it does not address whether it is permissible to take notice of facts, including behaviours and practices that are consistent with unlawful activity, that are found by the court in other cases and apply them to the matter before me. In this regard, I am mindful of the warning given by Lord Denning in Qualcast (Wolverhampton) Ltd. v Haynes , [1959] AC 743 (HL) at 761 where he cautioned against turning a question of fact into a proposition of law:

. . . we ought to beware of allowing tests or guides which have been suggested by the court in one set of circumstances, or in one class of cases, to be applied to other surroundings”, and thus by degrees to turn that which is at bottom a question of fact into a proposition of law. [ 14 ] In saying this, I understand that whether expert evidence is required in forfeiture applications under the Act will depend on the facts of each case.

In some cases, the totality of evidence before the court may be such that when examined as a whole, the court is satisfied without expert evidence that, on a balance of probabilities, the property was either proceeds of unlawful activity or an instrument of unlawful activity as required by s. 7 of the Act.

However, in my view, that is a separate question from whether expert evidence is necessary when the Director seeks to assert that certain behaviour or practices are indicative of or consistent with unlawful activity. [ 15 ] The Director’s counsel argues that requiring an expert to allow the court to make the necessary inferences from factors present in civil forfeiture cases would represent an elevation of the burden of proof to something approaching beyond a reasonable doubt.

However, it is important not to conflate: (1) expert evidence on practices that may be consistent with or common to certain unlawful activity; and (2) expert evidence on the ultimate issue of whether on the facts of a particular case, the property was acquired directly or indirectly from unlawful activity. The first issue, which is the question I consider here, is a matter of evidence regardless of the applicable standard of proof. [ 16 ] In

summary, I am not persuaded that I can conclude that certain practices or behaviours are consistent with unlawful activity, in this case the trafficking of contraband cigarettes, without expert evidence to support such assertions. [ 17 ] The Director has not sought leave to file expert evidence. However, in light of her submissions, I will provide the Director leave to file expert evidence in this matter if she so chooses, to be served and filed within 30 days of the date of this decision. Should she fail to do so, I will proceed to determine the application in the absence of expert evidence in any event.

A.R. has not filed any materials in this application to date. However, should A.R. wish to respond to any expert evidence filed by the Director, he shall do so within 14 days from the date served with the Director’s expert evidence. J. J.R. WILDEMAN