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Tom Rees | Criminal Defence Lawyer Winnipeg
9
May

Manitoba Court of Appeal Upholds Seizure of SUV Under Drug Statute

 

A Manitoba man lost his appeal for the return of a seized SUV belonging to his wife. The Manitoba Court of Appeal (MBCA) unanimously ruled that the Controlled Drugs and Substances Act (CDSA) and the Criminal Code of Canada allowed the police to seize the vehicle under the circumstances.

 

 

The vehicle was seized pursuant to a CDSA warrant.

  •  (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that

    • (a) a controlled substance or precursor in respect of which this Act has been contravened,

    • (b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed,

    • (c) offence-related property, or

    • (d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code

    is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it.

The man argued that the SUV should not have been seized because his wife was the registered owner and the warrant did not name her.

The Crown argued:

The trial judge did not err in ordering the [SUV] be further detained pending a forfeiture hearing on an evidentiary basis. Forfeiture of a vehicle used in the course of trafficking cocaine is consistent with the purpose of the legislation. Premature restoration of the [SUV], if a basis for forfeiture were established at trial, will have frustrated the purpose of the legislation. There is no applicable statutory provision that would provide for the [SUV] to be returned to the [accused’s] wife while preserving it for later forfeiture, or imposing a fine [or a] period of detention on the [accused] in lieu of forfeiture.

The [accused’s] wife will have full opportunity to be heard as to her interest in the [SUV] in the course of a forfeiture hearing should the [accused] be convicted.

The original motion judge found that the SUV was offence-related property and ruled against the man. The MBCA found that the Forfeiture Hearing had been commence and that man’s trial was a pre-requisite to that Forfeiture Hearing, meaning the vehicle could not be released.

The MBCA also noted:

[20]   While it may be open to the accused to challenge the continued detention of the SUV by way of a civil action for replevin (see Raponi), that issue was not raised in the motion before the motion judge and is not before this court.  It should be noted that replevin is a civil and not a criminal remedy, so it would have to be raised as a civil claim.

Many people in the public are not aware that the CDSA allows the state to seize and forfeit land and other property. There is a process to argue for the belongings and land back, but in many cases people are left without their property while their charges are pending. The penalties for drug offences are more serious then ever before, and involve jail sentences and seizure/forfeiture of land and property. The family of the man charged in the case above will not get their vehicle back until the forfeiture hearing, if at all.

*Note: The information on this page is not legal advice.

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