A Saskatchewan Court in R. v. Zaythavy, 2011 SKPC 8 has denied a Crown application for forfeiture of a motor vehicle registered to an Accused’s spouse.

Judge Morgan, in denying the Crown’s claim to seek forfieture of a vehicle used in the trafficking of cocaine, cited the Supreme Court decision of R. v. Craig, 2009 SCC23, where the Court reiterated that the “…intention of Parliament was to deprive offenders and other complicit individuals of the tools  of the trade: see R. v. Gisby, 2000 ABCA 281 at paras. 20 -21″.  They went on to note: “In the case of offence-related property, the focus is on the physical property itself and the criminal opportunity that continued possession of the property furnishes to the offender or other complicit persons” (at para. 81).

Judge Morgan reasoned as follows:

“On all of the evidence, I am fully satisfied that the applicant “appears innocent”,  in the words of the statute, of any complicity or collusion in this offence.   All the circumstances point to a one time opportunity for the offender to dabble in the drug trade to the limited extent of couriering drugs from Regina to Prince Albert.  There is no evidence to suggest that in any way the applicant was aware that this event was going to occur on February 19, or any other date, and there is no evidence to suggest that she had any knowledge whatsoever of this illegal enterprise.  She has met the test she is required to meet.  As she is the lawful owner, I need not determine the second ground under which she could make this application (s. 19 refers to the lawful owner or a person who, in the alternative, is “entitled to possession of [the] property or any part of [the] property”).  As lawful owner,  she is entitled to the return of the vehicle if she appears innocent of complicity.  She appears innocent of complicity. But what of the Crown argument that the offender himself may be “lawfully entitled to possession of [the] property or any part of [the] property”?  

[18]           In my view, he is not so entitled.   Under the provisions of The Family Property Act, S.S. 1997, C.  F-6.3, the most the offender has, by reason of marriage, is an entitlement to make an application for division of  family property. Every spouse in Saskatchewan has this right.   However, even had he made such an application,  the best that could be said was that he would then be putting in play a process to determine those rights.  Such a claim would be subject to a number of exceptions and exemptions in The Family Property Act, and would of course require a judicial determination of what his ultimate entitlement to the family property would be.  That entitlement might result in him being awarded ownership of the vehicle,  but he is a long way from having that determination made at this point.  

[19]           Further, s. 43 of The Family Property  Act has particular application in this case.  That section reads as follows:

43(1) No provision of this Act vests any title to or interest in any family property of one spouse in the other spouse. 

(2) Subject to subsections 18(2) and sections 28 and 50, any interspousal contract and any order of a court made pursuant to this Act, the spouse who owns the family property may sell, lease, mortgage, hypothecate, repair, improve, demolish, spend or otherwise deal with or dispose of the property as if this Act has not been passed.

[20]           Unless and until such time as the offender obtains an order to the contrary  under  The Family Property Act, full legal ownership of this vehicle remains in the name of  the applicant. In dealing with the provisions of The Matrimonial Property Act,  S.S. 1977, C. M-6.1,  the legislation that preceded The Family Property Act, Carter J. of the Court of Queen’s Bench was faced with an application by a spouse who wished to remove an encumbrance that had registered against real property she was granted sole ownership of; an  encumbrance had registered on that real property between the time of the application and the time of the order.  As Carter J. succinctly put it:

It seems obvious that, until an order is made, the property remains the property of the spouse who owned it before the order, or the joint property of the spouses as it was before the order.  Nothing in s. 20 or s. 43 suggests that any retroactivity can be given to an order.  (See: Dowd v. Toronto-Dominion Bank reflex, (1989), 72 Sask. R. 250 (Q.B.) para. 12.)

[21]            In the result, I dismiss the application for forfeiture.   Although I am satisfied that the vehicle is offence related property and that it was used in the commission of a designated substance offence, the applicant appears innocent of any complicity or collusion in the commission of that offence.   She is the lawful owner of that vehicle.  The  vehicle  is to be returned to the applicant.

This case demonstrates the narrow window property owners have to take a stand against the Crown when forfeiture is sought. Unfortunately, given the costs associated with such applications for individuals seeking recovery of property, it may not be feasible or practical to apply for recovery against the deep pockets of the Federal Crown. In this case, the property in question was a 2000 GMC Jimmy… likely not worth legal fees. Similarly, as tax-payers, does it make sense for the Federal Crown to seek forfeiture of low-value property? …