Pubdate: Fri, 06 Mar 2015
Source: Regina Leader-Post (CN SN)
Copyright: 2015 The Leader-Post Ltd.
Contact: http://www.leaderpost.com/opinion/letters/letters-to-the-editor.html
Website: http://www.leaderpost.com/
Details: http://www.mapinc.org/media/361
Author: Barb Pacholik
Page: A1
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

TRUCK FIGHT A TRAIL-BLAZER

REGINA - In the world of drug deals, this one, made on a street 
corner in Regina's inner city, was small - $60 for two prescription 
pills - but its impact was big.

Less Breaking Bad and more making a tad, the low level deal gave way 
to a high court ruling that helped shape a Saskatchewan law that has 
required people to forfeit more than $2 million in cash, vehicles and 
real estate.

"You want to capture those resources that are tainted by crime and 
make them unavailable for future use," explains Tammy Pryznyk, a 
Justice Ministry lawyer on the front lines of the Seizure of Criminal 
Property Act.

The law, enacted in 2009, allows the province to seek forfeiture of 
any "proceeds of unlawful activity or an instrument of unlawful 
activity" - regardless of a criminal conviction or charges laid. In 
David Mihalyko's case, the "instrument" was his 1998 Chev Blazer, 
worth about $7,500 at the time.

The truck was low on gas and Mihalyko was short on money that night 
in September 2010, when he struck a deal for two of his Oxy-Contin 
pills, prescribed for a foot injury. As a judge later determined, 
Mihalyko promptly used the cash to fuel up the Blazer. The woman who 
bought his pain meds was an undercover officer posing as a sex trade worker.

A costly mistake for Mihalyko was a lucrative one for the province.

Its forfeiture law was a little more than a year old, but no one had 
taken a run at it in the courts.

While his lawyer warned the legal bill was going to cost more than 
the truck's value, Mihalyko, using borrowed money, decided to take 
his shot at the law.

"I'm not perfect ... but I thought I didn't deserve that," he says. 
"I just thought it was very extreme."

In criminal court, Mihalyko pleaded guilty and got a nine-month 
sentence served in the community. His truck, however, remained locked up.

Mihalyko contended it fell under what he calls "an escape clause" 
that permits civil forfeiture "unless it clearly would not be in the 
interests of justice."

His lawyer, Brad Tilling, argued that taking a $7,500 truck for a $60 
dope deal should be exempt. A Queen's Bench judge agreed, but his 
decision was overturned when the provincial government appealed.

The Saskatchewan Court of Appeal ruling in 2012 established a 
precedent, affecting forfeiture cases since then. The court said 
Mihalyko hadn't proven forfeiting his truck was "draconian and unjust 
or manifestly harsh," and the drug trade's impact also had to be 
weighed in the balance.

Mihalyko still bristles at that decision and the law he once called 
"a licence to steal."

"If you've got a guy that's got thousands of unclaimed dollars and 
he's a known trafficker, he's driving Porsches, maybe that's 
different," he says. "I'm sure that's what the law was intended to 
do, to deter those that are profiting off a bunch of crimes.

"If I didn't meet that (escape) clause, then nobody did, because it 
was such a small amount, and it was the first time I was ever charged 
with such an offence."

As one judge pointed out in another ruling, the Mihalyko case 
established that exceptions are very rare.

Indeed. Of the 97 forfeiture applications decided by the court as of 
the end of February, only three have been rejected:

■ A Vancouver woman visiting Regina got back $4,960 cash - all 
$20 and $100 bills bound by an elastic - after a judge found more 
than "mere suspicion" was needed to tie it and her to a drug house;

■ A cargo van used in an "inept" attempt to haul stolen copper 
was returned after a judge found it wasn't in the public interest to 
take the only means of livelihood from an ailing Saskatoon couple who 
used the vehicle for a hauling business;

■ A judge refused to grant forfeiture of a repeat drunk driver's vehicle.

Eighty per cent of people caught by the law quietly walk away, never 
seeking their day in court - so the province revised the law, 
effective Jan. 1, to allow for simpler and faster "administrative 
forfeiture." It applies to seizures of personal property (excluding 
"real property" like buildings) worth less than $75,000 - as about 94 
per cent of concluded forfeitures have been in the past.

People with an interest in the assets are notified of their right to 
dispute forfeiture.

They have 30 days to file a response.

If it's not disputed, the province gets the property, without going 
to the court - what Justice Minister Gord Wyant in the annual report 
calls "a more efficient process" and Regina defence lawyer Barry 
Nychuk dubs "another shortcut to seizing money."

Asked what else may be on the horizon, Pryznyk says there are no 
specific plans for expanded use of the law, but "it depends on what 
comes our way."

Most forfeiture orders have been for suspected drug money, but the 
province recently tried to steer things in a new direction.

"We wanted to see if the courts were seeing an impaired driving or 
over .08 situation as the unlawful activity," Pryznyk said.

Onile Leslie Lanovaz was driving impaired - it would become his 
eighth such conviction - when he hit a ditch near Saskatoon one 
winter day two years ago.

The province argued his 2009 Pontiac G5 Coupe was "an instrument of 
unlawful activity" because it was "likely" to result in bodily harm.

Lanovaz argued forfeiture of his car wasn't in the interests of justice.

Citing the Mihalyko ruling - "the most often referenced authority for 
these applications" - Justice Richard Elson sided with Lanovaz, but 
also didn't rule out the possibility of vehicle forfeitures for drunk 
drivers in the future with "specific and clearer legislation."

As for Mihalyko's Blazer, while the government succeeded in getting 
its forfeiture order, it never actually got his truck.

"They came out and they asked me, 'Where's your truck?'" he recalls. 
"And I said, 'I sold it.' And then these two officers are looking at 
each other ... She looked at the guy, and she goes, ' Now what?' "

Mihalyko says he found a legal loophole and drove through it - 
selling the Blazer between the time it was ordered returned by the 
lower court and before the high court's forfeiture order.
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MAP posted-by: Jay Bergstrom