R.W. ELSON QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 81 Date: 2017 03 22 Docket: QBG 3200 of 2016 Judicial Centre: Regina BETWEEN: THE DIRECTOR UNDER THE SEIZURE OF CRIMINAL PROPERTY ACT, 2009 and WILLIAM ROSS BUTLER (ALSO KNOWN AS ROSS BUTLER) AND THE CHIEF OF POLICE OF THE REGINA POLICE SERVICE Counsel: Meghan McAvoy for the plaintiff Ian McKay, Q.C. for the defendant JUDGMENT SCHWANN J. March 22, 2017 [1] This is an application by the Director under the The Seizure of Criminal Property Act, 2009, SS 2009, c S-46.002 [2009 Act] for an order directing the forfeiture of $10,475.00 [property] to the Crown in right of Saskatchewan. The property had been seized by the Regina Police Service [RPS] from William Ross Butler in 2008. [2] In support of this application, the Director filed the affidavits of Sgt. Guy Criddle, Cst. Ahren Strueby, Sgt. Darren Fikeldey, Sgt. Caroline Houston, Sgt. Darcy McDonald, Kim Calfas and Cpl. Springinatic. [3] The Director’s application was preceded by administrative forfeiture proceedings in relation to the property pursuant to Part II.1 of the 2009 Act. Since Mr. Butler filed notice of dispute in response to those proceedings, the Director applied to this Court for forfeiture order pursuant to Part II. Circumstances and Summary of the Evidence The Director’s Evidence [4] The RPS executed search warrant at 839 Pasqua Street, Regina, Saskatchewan on July 24, 2008. This was Mr. Butler’s place of residence at the time. [5] On their approach to the residence the police encountered male by the name of Kirk Florek. Mr. Florek was questioned by the police. He admitted to having just purchased three grams of cocaine for $140.00. The cocaine found on his person was seized by the police. [6] The police were forced to use ram to open the steel frame front door. After it was utilized twice, Mr. Butler yelled out that he would open the door for the police, but he did not. The door was breached on the third attempt and the police entered. [7] Once inside the house, Sgt. McDonald heard toilet running as if it had just been flushed. Sgt. McDonald also observed Motorola cell phone in the living room which rang an estimated 20 times while the police were executing the search warrant. Sgt. McDonald answered four of the calls. All were from individuals who wanted to stop by to pick up product. One of the callers, Rob, requested “4”. [8] Three of the callers subsequently showed up at the residence within minutes with cash in hand. Each admitted to the police that they were there to purchase drugs. Sgt. McDonald also noticed approximately ten vehicles approaching the house but each drove off upon noticing the police presence. [9] The police found the following items in execution of the search warrant: a) $240.00 seized by Cst. Slater from Butler’s front right jeans pocket b) $140.00 seized by Cst. Slater from Butler’s front left jeans pocket c) $1,015.00 seized by Cst. Slater from Butler’s left jeans pocket d) $100.00 seized by Cst. Slater from the basement rafters e) $480.00 seized by Cst. Steinke from under the living room table f) $8,500.00 seized by Cst. Slater from safe in the basement of the residence g) $275.00 seized from Nicholson’s person [10] The following items were also located and seized: a) three gram packages of cocaine seized by Cst. Strueby from Kirk Florek b) black digital scale from the living room end table seized by Cst. Steinke c) Ativan mg pill bottle from the living room table seized by Cst. Steinke d) two cell phones from the living room table seized by Cst. Steinke. [11] The police also seized numerous items believed to have been stolen including plasma TV and various PlayStation games. [12] The cash located in the safe ($8,500.00) was held together in three elasticized bundles of $1,500.00 and four elasticized bundles of $1,000.00. The $1,500.00 bundles were each folded in half. [13] Sgt. Houston, who has 26 years’ experience in drug enforcement, surmised the cash recovered from the safe had cocaine residue on it based on its smell and feel. Subsequent ION testing was done on 19 random samples of cash. All 19 tested positive for cocaine with 17 manifesting high level of cocaine. [14] The majority (93%) of cash seized from the residence was in $20.00 denominations. The Evidence of the Respondent [15] Terry Metz swore an affidavit on January 9, 2017 in support of Mr. Butler. Mr. Metz is Mr. Butler’s former co-worker. He deposed to having purchased 1985 GMC Bison five ton truck from Mr. Butler in 2007 for $16,000.00. After paying the down payment, Mr. Metz claims he repaid the balance ($11,000.00) in cash periodically over the course of the ensuing years in lump sums of $1,000.00 to $1,500.00. [16] Mr. Butler swore an affidavit on January 24, 2017. He claims Mr. Metz purchased five ton Chevrolet truck from Bell’s Moving and Storage. Mr. Butler also claims he lent Mr. Metz the money to purchase this truck. At para. of his affidavit, he says: 8. THAT Mr. Metz had been paying me back for the money that lent him to purchase the truck and do not know why Mr. Calfas would suggest that the vehicle was never registered in any of our names. [17] With regard to the search of his residence, Mr. Butler denies any of the individuals present at that time of the search were there to purchase drugs of any sort. [18] Mr. Butler says the police evidence about Mr. Florek is not to be believed because Mr. Florek subsequently gave statement to the police denying he had purchased or received cocaine from Mr. Butler. This statement was not filed in these proceedings. [19] Finally, Mr. Butler indicates that although the police seized number of items which were allegedly stolen, it was subsequently established that none of these items were in fact stolen and all were returned to him. With regard to the toilet flushing incident, Mr. Butler points out that no drug residue was ever found around the toilet nor were any drugs or traces of drugs found elsewhere in the home. Mr. Butler also says no drug residue was found on his hands or clothes. Qualifying Mr. Henry as an Expert Witness [20] The Director offered opinion evidence from J. David Henry. [21] Defence counsel did not challenge Mr. Henry’s qualifications as an expert witness nor was voir dire sought for such purposes. [22] In the circumstances, accept Mr. Henry as an expert qualified to express an opinion in the area of controlled drugs and substances, trafficking in controlled drugs and substances and matters relating to that field. Mr. Henry provided detailed affidavit setting out his experience and level of expertise acquired over 30.5 years as an RCMP officer and his work in various drug enforcement capacities. His expertise is based on job related experience, investigative courses taken and articles and publications read. [23] Mr. Henry has been previously qualified as an expert in similar applications. In fact, his expertise has never been challenged (see Saskatchewan (Seizure of Criminal Property Act 2009 Director) Nagy, 2016 SKQB 332 (CanLII) [Nagy], The Director Shercliffe, QB 1854 of 2014 dated February 18, 2015 (unreported) and Saskatchewan (Seizure of Criminal Property Act 2009 Director) Dickinson, 2016 SKQB 82 (CanLII)). In Nagy, Brown J. stated: 29 Expert evidence was provided through J. David Henry, former RCMP member of some 30 years. He spent much time with the Integrated Drug Unit in Regina as well as other units associated with drug awareness and organized crime. He is an expert and is qualified to provide opinion evidence regarding the distribution, trafficking, usage, language (including code and jargon), packaging, accoutrements and paraphernalia associated with substances addressed in the CDSA. His affidavit, which accept, confirmed that, when all the facts and circumstances were viewed as whole, including those set out earlier in this decision, the activities of Nagy were consistent with the purchase and sale of controlled substances, contrary to the CDSA. The cash seized was also, in the opinion of officer Henry, an instrument of unlawful activity as recognized by the Act. While this expert evidence was impugned, find his evidence to be relevant, necessary, his knowledge to be established through training and experience and of assistance here. [24] find Mr. Henry’s opinion evidence to be relevant and necessary. There is no exclusionary rule which would bar the receipt of his evidence. Mr. Henry is therefore qualified to provide opinion evidence regarding the distribution, trafficking, usage, language (including code and jargon), packaging, accoutrements and paraphernalia associated with substances addressed by the Controlled Drugs and Substances Act, SC 1996, 19. [25] There are three issues before this Court: 1. Is the Director’s application statute barred? Does it have retroactive effect? 2. On balance of probabilities, is the property proceeds of unlawful activity? 3. Has the “interests of justice” exception been established? 1. Is the Director’s application statute barred? Does it have retroactive effect? [26] It is common ground that the property for which forfeiture is sought was seized from Mr. Butler by the RPS on July 24, 2008. The governing legislation in 2008 was The Seizure of Criminal Property Act, SS 2005, S-46.001 (Repealed) [former Act]. This statute was subsequently repealed and replaced with the 2009 Act, and it is pursuant to the 2009 Act that the Director’s application was brought on December 16, 2016. [27] Since Mr. Butler’s argument is based on the expiration of limitation period, s. 35.1 comes into play. This section was added to the 2009 Act by way of amendment in 2013. [28] It is Mr. Butler’s submission that because the property in question was seized from him in 2008, the Director should have acted pursuant to the legislation in place at that time. As mentioned, the governing legislation in 2008 was the former Act. Had she done so, he argues, the application would have been statute barred because The Limitations Act, SS 2004, L-16.1 bars commencement of proceedings two years after the date of discoverability. The date of seizure, he argues, is the date of discovery. [29] Secondarily, Mr. Butler argues that the current legislative mandate reflected in the 2009 Act is prospective in operational effect and not retroactive. Consequentially, it is his position that no order can issue with respect to property seized before the 2009 Act came into effect. Mr. Butler draws support for this argument from Gustavson Drilling (1964) Ltd. Minister of National Revenue, 1975 CanLII (SCC), [1977] SCR 271 [Gustavson] and his contention the legislation was not made expressly retroactive. [30] In my view, it serves no useful purpose to analyse the limitations issue from the perspective of whether the Director’s application would have been statute barred had it been brought under the former Act. The reality is that the Director commenced proceedings under the 2009 Act thus the Director’s authority to pursue a forfeiture order must be assessed from that perspective alone. Viewed in this light, the issues posed by Mr. Butler boil down to: 1. Whether the Director’s forfeiture proceedings were commenced after the limitation period expired; and 2. Whether an order granted under the 2009 Act in relation to property seized before this legislation came into force is retroactive in effect. If it is retroactive in its application, whether the 2009 Act expressly allows for retroactive effect. The Limitations Issue [31] Section 35.1 of the 2009 Act prohibits the commencement of forfeiture applications or administrative proceedings under this Act two years after the Director becomes satisfied the property sought to be forfeited is proceeds of unlawful activity or an instrument of unlawful activity. The section reads: 35.1 Notwithstanding The Limitations Act, no application or administrative forfeiture proceeding pursuant to this Act may be commenced after two years from the day on which the director becomes satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity. [32] The language employed by s. 35.1 is significant in two respects. [33] First, the limitations rule expressed in s. 35.1 is preceded by the words “Notwithstanding The Limitations Act…”. These words are not superfluous. They operate as preface to the rule itself and as such hold interpretative significance. Pierre-André Côté in The Interpretation of Legislation in Canada, 3d ed (Scarborough: Carswell, 2000) at 355-6 [Legislation in Canada] discussed the concept of legislative harmony and the ordering of rules where conflicts exist between statutes. Normally, conflicts between statutes are resolved by recognizing hierarchy between them, that is primacy or paramountcy of one text over the other. The paramount text will apply, the other will be without effect… The way to determine which law has precedence is to seek the intent of the legislature. This intent can be expressed formally… [34] One way in which to resolve legislative or operational conflict is to express paramountcy between conflicting statutes by inserting an explicit word or phrase into the statute. The word “notwithstanding”, for instance, has recognized and acknowledged meaning for statutory interpretation purposes. As Pierre-André Côté in Legislation in Canada explains at 356: variety of well-known terms is used. The statute will declare that it applies “notwithstanding” provisions to the contrary. If, on the other hand, precedence is to be given to another provision, the statute will operate “subject to” that enactment. [Emphasis Added] [35] Thus, by prefacing s. 35.1 with the phrase “Notwithstanding The Limitations Act”, the Legislature signaled an intention to prioritize or give legal effect to the content of s. 35.1 over what may otherwise be provided for in The Limitations Act. [36] This brings me to the substantive content of s. 35.1. What does this provision say about limitation of proceedings? Is it in operational conflict with The Limitations Act? [37] In general terms, The Limitations Act provides that no proceedings with respect to claim may be commenced after two years from the day on which the claim is discovered (s. 5). Subject to limited exceptions, claim is discovered on the day on which the claimant first knew or ought to have known about the injury, loss or damage (s. 6(1)). claimant is presumed to have known of these matters on the day on which the act or omission on which the claim is based took place unless the contrary is proved (s. 6(2)). [38] Section 35.1, in contrast, charts different course. In clear and unambiguous language, the legislation prescribes starting point for when the limitation period begins to run. Significantly, it is not the day on which the act or omission took place but “the day on which the director becomes satisfied that property is proceeds of unlawful activity...” [emphasis added]. By inserting the word “notwithstanding” in s. 35.1 it can be presumed that the Legislature was alive to potential limitation of actions issues associated with forfeiture matters and intended to adopt different frame of reference for when the limitation period begins to run. [39] This legislative intent or purpose was explained in Saskatchewan, Legislative Assembly, Standing Committee on Intergovernmental Affairs and Justice (Hansard), 27th Leg, (May 14, 2013) at 418. Speaking on behalf of the Minister of Justice, the explanation provided to the Standing Committee on Intergovernmental Affairs and Justice was this: Mr. McGovern Mr. Chair, there’s provision that’s being added regarding the limitation period commencing when the director is satisfied that the property is proceeds of unlawful activity or an instrument of unlawful activity, rather than two years from the point of discovery, which probably is the provision that the member’s referring to. And that arises in two ways. One is now that statements of claim may be used to bring this forward and that’s one of the changes that is being made that was identified by our team in this area as an important alternative to have now that it can be commenced by statement of claim, of course it then attracts the provisions in The Limitations Act. And what this provision does is say that discoverability isn’t as relevant for limitation period in this context as is saying the director can be satisfied that the property is proceeds of unlawful activity or an instrument of unlawful activity. And so that’s why that new provision comes in: (1) because it’s statement of claim; and then (2) to recognize the process of when that clock should start. [40] Thus, in accordance with the language adopted by the Legislature for s. 35.1, the starting point for the commencement of the limitation period is not the date of seizure as contended by Mr. Butler but the date when the director became satisfied that the property constitutes proceeds of unlawful activity. [41] The evidence on when the Director “became satisfied” the seized property constituted proceeds of unlawful activity is found in the Affidavit of Tammy Pryznyk sworn December 15, 2016. She deposed to the following: 3. became aware of the Property (and the circumstances of its seizure), when the RPS referred the file to my office in August 2016. subsequently became satisfied, pursuant to the requirements of section of the [2009] Act, that the Property is an instrument of unlawful activity in that it has been used to engage in unlawful activity that resulted in or was likely to result in or was intended to result in the acquisition of property (more particularly, obtaining more controlled substances for the purpose of trafficking them). am also satisfied that the Property is an instrument of unlawful activity in that it is likely to be used to engage in unlawful activity that would be likely to or is intended to result in the acquisition or production of property. 4. In addition, am satisfied that the Property is proceeds of unlawful activity in that it was acquired directly or indirectly, in whole or in part, as result of unlawful activity, specifically the trafficking in controlled substances. [42] Mr. Butler did not challenge the admissibility of Ms. Pryznyk’s affidavit, cross-examine her on the affidavit, or offer any evidence to the contrary. Thus, on the unchallenged evidence of Ms. Pryznzk, the only finding of fact which can rationally be made is that Ms. Pryznyk in her capacity as Director was satisfied in August 2016 that the $10,475.00 previously seized by the police constituted proceeds of unlawful activity. The Director’s application was brought four months later and fell comfortably within the two year limitation window prescribed by s. 35.1. [43] The Director’s application is therefore not statute barred and there is no limitations issue. The Retroactivity Issue [44] Mr. Butler submits the presumption against retroactive application of statutes prevents the Director from reaching back to forfeit goods seized prior to the coming into force of the 2009 Act. [45] There is distinction to be made between the temporal operation of statutes insofar as legislation has either retroactive or prospective effect. As general principle of law, statutes are not to be construed as having retroactive effect and operation unless such construction is expressly or by necessary implication mandated by the language of the statute. Gustavson is cited as the leading authority on this point. At 267, the Supreme Court of Canada said: The general rule is that statutes are not to be construed as having retrospective operation unless such construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to its enactment. In those instances the statute operates retrospectively. [46] This basic principle of construction is easy to state, however defining retroactivity, retrospectivity and prospectivity, let alone assessing when they occur in the context of repealed and amended law has proven to be difficult because of the confusing and often times inconsistent body of law which has evolved (by Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed (Markham: Butterworths Canada Ltd., 2002) at 543 [Construction of Statutes]). [47] In very general terms it can be said legislation receives retroactive application when the effect of applying it to particular facts is to deem the law to have been different from what it actually was when the facts occurred (Construction of Statutes at 553). The Supreme Court in Gustavson explained this concept but went on to touch upon when statute is not retroactive. At 267-8: Superficially the present case may seem akin to the second instance but think the true view to be that the repealing enactment in the present case, although undoubtedly affecting past transactions, does not operate retrospectively in the sense that it alters rights as of past time. The section as amended by the repeal does not purport to deal with taxation years prior to the date of the amendment; it does not reach into the past and declare that the law or the rights of parties as of an earlier date shall be taken to be something other than they were as of that earlier date. The effect, so far as appellant is concerned, is to deny for the future right to deduct enjoyed in the past but the right is not affected as of time prior to enactment of the amending statute. [Emphasis Added] (See also Paton The Queen, 1968 CanLII 102 (SCC), [1968] SCR 341) [48] The Director submits the legal effect vis-a-vis Mr. Butler has not changed with passage of the 2009 Act. agree. Both the former Act and the 2009 Act authorize the commencement of court application for forfeiture of proceeds of unlawful activity. The only meaningful difference between the two statutes is the party empowered to seek the remedy. Under the former Act it was police chief and in the current statute it is statutory designate. [49] The 2009 Act did not change the state of the law or Mr. Butler’s rights from what it was before the new law came into effect. Under both regimes the terms “property” and “proceeds of unlawful activity” were defined in the same manner. Both statutes contemplate an application to this Court for forfeiture of such property. Both apply the same legal test and standard of proof. [50] There is no obvious or identified unfairness attached to the legislative change in relation to the triggering events or definitions, nor to the ultimate consequence. Thus, it can hardly be said that Mr. Butler was caught off guard by the new law, lost vested rights or that the basic rules were either unknown or changed. Finally, the consequences attaching to prior factual event do not result in new penalty, disability or prejudice in any way to Mr. Butler. His legal position was the same and he faced the same jeopardy. [51] Even if am wrong such that the temporal effect of the 2009 Act is retroactive in nature, find the underlined portion of the definition of “proceeds of unlawful activity” expressly authorizes reaching back to fact pattern which existed before the statute came into effect. The definition provides: 2(p) “proceeds of unlawful activity” means: (i) property acquired directly or indirectly, in whole or in part, as result of unlawful activity, whether the property was acquired before or after the coming into force of this Act;… [52] As explained in Legislation in Canada at 150: Retroactivity may also be accomplished by mentioning clearly that the state [sic] applies to certain specific events. The judge is bound to give retroactive effect to the statute if this is expressed clearly, whatever the technique. [53] Similarly, as Ruth Sullivan observed in Construction of Statutes at 772: §25.53 Retroactive legislation often states that it is deemed to have come into force or effect on day before the day of enactment. Or it may state that it applies to designated facts occurring from or being particular date or time. The following provisions from legislation amending Ontario’s (former) Residential Rent Regulation Act illustrate the latter approach: 99.2.-(1)…this Part applies to every rent increase that takes effect on or after the 1st day of October, 1990 99.14.-(1) This section applies to an order made…under Part VI…even if made before the 1st day of October, 1990.58 Because the presumption against the retroactive application of legislation is strong, express provisions of this sort often are included in legislation. They do not follow any fixed pattern. [54] Finally, Mr. Butler suggests the definition should be parsed and interpreted to mean that while property can be acquired before the coming into force of the 2009 Act, the “unlawful” element part of the definition must have occurred after the 2009 Act came into force. [55] do not accept this interpretation. The property which comprises the subject matter of the forfeiture action only becomes “proceeds of unlawful activity” because of the unlawful activity. Furthermore, Mr. Butler’s argument largely focusses on the individual charged with the criminal offence as opposed to the property derived from unlawful activity. His approach ignores several key features of the 2009 Act notably, that the legislation is civil not criminal in nature, and that it is an in rem remedy. Furthermore, it provides that person does not have to be charged with criminal offence for the Director to pursue civil remedies under this statute. The date of charges is irrelevant as is the need for finding of criminal culpability. [56] For the reasons given, there is no retroactivity problem. 2. On balance of probabilities, is the property proceeds of unlawful activity? [57] Section of the 2009 Act sets out the test the court must apply in determining whether to order forfeiture of seized property. 7(1) Subject to section 8, and unless it clearly would not be in the interests of justice, the court shall make an order forfeiting property to the Crown if the court finds that the property is proceeds of unlawful activity or an instrument of unlawful activity. [Emphasis Added] (2) In order to make forfeiture order in an application for forfeiture of property that is alleged to be proceeds of unlawful activity, the court: (a) is not required to be satisfied that the property was acquired in connection with specific unlawful act; and (b) is not required to be satisfied that an increase in the value of property or decrease in debt obligation secured against the property arose as the result of specific unlawful act. [58] The terms “proceeds of unlawful activity” and “unlawful activity” are defined by s. of the 2009 Act in the following manner. To repeat: (p) “proceeds of unlawful activity” means: (i) property acquired directly or indirectly, in whole or in part, as result of unlawful activity, whether the property was acquired before or after the coming into force of this Act; and (ii) an increase in the value of property, or decrease in debt obligation secured against property, if the increase or decrease resulted directly or indirectly from unlawful activity; (u) “unlawful activity” means an act or omission that is an offence pursuant to: (i) an Act, an Act of any province or territory of Canada or an Act of the Parliament of Canada; or (ii) an Act of jurisdiction outside Canada, if similar act or omission would be an offence pursuant to an Act or an Act of the Parliament of Canada if it were committed in Saskatchewan; [59] Section 11 is also relevant to this application as it prescribes the balance of probabilities as the applicable standard of proof. In examining what this standard means and how to apply it, the Court of Appeal in Saskatchewan (Seizure of Criminal Property Act, 2009, Director) Kotyk, 2013 SKCA 140 (CanLII), 427 Sask 193, adopted the standard applied in F.H. McDougall, 2008 SCC 53 (CanLII), [2008] SCR 41: whether the allegation is more likely than not, and whether proposition is inherently probable or improbable is matter of common sense (para. 29). The court expanded upon this concept and the onus in para. 33: 33 …The question was whether, on common sense view of the situation, it was more likely than not the money was proceeds of, or an instrument of, unlawful activity. Suspicious circumstances constitute evidence. finding of no evidence in this case indicates the Chambers judge either applied the wrong standard, or misconceived the nature of the onus, or was looking for more direct evidence of unlawful activity than was necessary. [60] Mr. Henry has identified the following evidence as supportive of an inference of drug trafficking: a. The departure of Mr. Florek from the residence with three grams of cocaine and his admission to having just purchased the cocaine; b. The modified metal frame door and the flushing toilet noticed upon police entry; c. The numerous telephone calls to the Motorola cell phone including four calls from apparent customers; d. The subsequent attendance of three individuals at the door seeking to purchase drugs; e. The numerous vehicles observed passing by the residence; f. The presence of digital scale; g. The presence of stolen property; h. The amount of bundling and the composition of the cash found at the residence; and i. The use of safe to store much of the cash. [61] I accept Mr. Henry’s evidence with regard to the significance of these various factors and how they are common to the drug trafficking trade. [62] Mr. Henry’s evidence about bundling and the composition of cash is particularly illuminating. In his opinion, it is typical for those in the drug trade to possess large sums of cash and quite common for the cash to principally be in $20.00 denominations. Bills of this nature are common in street level trafficking. In Mr. Butler’s situation, 93% of the bills were in $20.00 denomination. Mr. Henry further explained that the manner in which the cash from the safe ($8,500.00) was bundled was consistent with drug trafficking. It was his opinion drug dealers often bundle their money with elastic bands and use different bundling techniques as means of quick accounting. [63] Mr. Henry explained the significance of the location of where the cash was found and how drug traffickers often conceal their cash in elaborate ways. [64] The flurry of activity from both the cell phone and subsequent visitors looking to buy drugs, as well as the numerous drive-by vehicles, all support clear inference of an ongoing drug operation at work according to Mr. Henry. [65] There is also the evidence of Sgt. Houston. She observed the cash to bear the smell and feel of cocaine. She is familiar with the smell and feel of cocaine based on numerous cocaine investigations she has participated in over the past 20 years. Nineteen random swabs were taken with at least one bill swabbed from each cash exhibit. These swabs were sent to the Canada Border Services Agency for ION scan testing. [66] Cst. Houston’s suspicions were well founded as all 19 swabs tested positive for cocaine with 17 of the 19 recording high levels of cocaine. [67] With that turn to the respondent’s evidence, much of which find to be inconsistent with the supplemental affidavits of Kim Calfas and Tammy Pryznyk, notably: In his capacity as supervisor with Saskatchewan Government Insurance [SGI], Mr. Calfas queried the Chevrolet truck referenced in Mr. Butler’s January 24, 2017 affidavit. Search results revealed that the Chevrolet truck was 1984 model truck which had been purchased by Legend Transport Ltd. for $8,000.00 and first registered by Legend Transport on July 5, 2005; SGI’s database shows that Legend Transport Ltd. had purchased the truck from Bell’s Moving Systems in July 2005 with declared value of $8,000.00; and In his notice of dispute filed in the earlier administrative forfeiture proceedings Mr. Butler gave the following reasons for objecting to the Director’s actions: The subject property was not proceeds of any unlawful activity nor an instrument of unlawful activity. The funds were monies that received from Mr. Terry Metz of Legend Transport. drove for Legend Transport for period of time and had 1985 GMC Bison Straight 5-ton truck which sold to Mr. Metz for approximately $15,000.00 and received payments from Mr. Metz totalling that amount which was using to pay my expenses. The 1985 GMC Bison was delivered to Mr. Metz, which believe he utilized in his business it has been used for moving contracts prior to my sale. [68] Based on the aforesaid evidence, the following inconsistencies in Mr. Butler’s evidence emerge: The SGI records refer to 1984 Chevrolet truck and not 1985 GMC model which Mr. Metz claims to have purchased; The Chevrolet truck was purchased by Legend Transport Ltd. in 2005 not 2007; While the truck appears to have been purchased from Bell’s Moving Systems, the records show it was purchased by Legend Transport Ltd. and not Terry Metz; and The SGI records show value of $8,000.00 for the truck and not $16,000.00 as deposed to by Mr. Metz. [69] With regard to Mr. Florek, Mr. Butler claims he gave second statement to the police effectively denying the statement had given at the time of the search. Mr. Butler did not file Mr. Florek’s police statement with this Court and as such his allegation is hearsay. In any event, the unchallenged evidence of Sgt. Criddle and Cst. Strueby clearly establishes that the police seized cocaine from Mr. Florek’s person at Mr. Butler’s residence and that Mr. Florek admitted he bought cocaine from Mr. Butler on regular basis. [70] On a common sense view of the evidence before me, I find it more likely than not the money was proceeds of unlawful activity. 3. Has the “interests of justice” exception been established? [71] Where the court is satisfied that the subject property constitutes proceeds of unlawful activity, s. directs the court to grant the forfeiture order unless the order is clearly not in the interests of justice. In Saskatchewan (Seizure of Criminal Property Act, 2009, Director) Mihalyko, 2012 SKCA 44 (CanLII), 393 Sask 117 the Court of Appeal established the principle that the party relying on the “interests of justice” exception bears the burden of proving this exception. [72] Mr. Butler bears the onus of establishing, on a balance of probabilities, that forfeiture would clearly not be in the interests of justice. As he put forth no such evidence or argument to support the application of this exception to his circumstances, it has not been established. CONCLUSION [73] The seized property is proceeds of unlawful activity. The forfeiture order proposed by the Director shall issue. J. L.M. SCHWANN
HELD: The issues were determined as follows: 1) the applicant applied pursuant to The Seizure of Criminal Property Act, 2009, as that version of the Act was in place at the time of the seizure. The respondent argued that s. 35.1 did not apply at the time of seizure, because it was not in the Act at the time of seizure. The respondent argued that the two-year limitation period pursuant to The Limitations Act applied to the application with the date of seizure being the date of discoverability. The respondent also argued that the 2009 Act did not have retrospective application. The court found that the applicant applied pursuant to the 2009 Act and therefore the matter was assessed from that perspective. Section 35.1 of the 2009 Act required applications for forfeiture to be made within two years from the director becoming satisfied that the property sought to be forfeited was proceeds of unlawful activity or an instrument of unlawful activity. The court found that the words “Notwithstanding The Limitations Act” at the beginning of s. 35.1 served to provide an intention to prioritize the content of s. 35.1 over The Limitations Act. An affidavit filed by the applicant indicated that the director became satisfied that the property was an instrument of unlawful activity after August 2016. The director’s application was brought four months later, well within the two-year limitation period. The court then considered whether the 2009 Act had retrospective application and found that B. had the same legal position and faced the same jeopardy regardless of the version of the legislation, and therefore, there was no retrospective problem;  2) s. 7 outlined the test to apply. The court accepted the expert’s evidence with regards to the significance of the factors evidencing drug trafficking and how common they were to the drug trafficking trade. The applicant’s evidence also showed that the person alleging to purchase the truck from the respondent was not the purchaser and the purchase price was $8,000, not $16,000. The court found it more likely than not that the money was proceeds of unlawful activity; and 3) B. did not provide evidence or argument to support the exception that forfeiture would clearly not be in the interests of justice. The property was found to be proceeds of unlawful activity and the forfeiture order was granted.