Trafficker loses “tainted” truck appeal

In reversing the first legal challenge to a provincial law that seizes property from criminal activities, the Saskatchewan Court of Appeal says a Regina man has to give up his $7,500 truck used in a $60 drug deal.

“It was a small, isolated transaction, and the property sought to be seized was worth more than a hundred times the transaction,” said defence lawyer Brad Tilling, who represented David Wayne Mihalyko.

“Ultimately the lesson from this is that, that’s only one factor. That is not an overriding factor,” Tilling added in an interview.

The appeal court in this week’s unanimous decision said that while the value of the 1998 Chev Blazer may be excessive compared to the value of the drugs, forfeiture of a vehicle “tainted” by trafficking is in “the best interests of justice.”

While there’s been about 20 forfeiture orders under the 2½-yearold Saskatchewan Seizure of Criminal Property Act (SSCPA), Mihalyko was the first to take a legal run at the law, which seizes property and cash from illegal activities and uses it for victims programs and policing operations. It has netted the province roughly a half-million dollars.

Tammy Pryznyk, counsel for the director of SSCPA, said each case will turn on its own facts, but for the first time the court has provided guidance on what’s meant by “clearly not in the interests of justice” — the so-called “escape clause” that allows an exemption from forfeiture. “It’s important to look to the impact of illegal activities on society in general ... not just the impact on the person seeking to prevent forfeiture,” she said.

But Tilling believes the ruling has broadened the law.

“It really has made it clear that this act should be interpreted as widely as possible, and basically there isn’t too much you can do about it if your vehicle is involved. It doesn’t matter if it’s a single, isolated incident, you’re going to lose it,” said the Regina lawyer.

Mihalyko received a nine-month conditional sentence in the community after pleading guilty to trafficking. He was charged in 2010 after selling two Oxycontin pills, a drug legally prescribed to him for an injured foot. According to the ruling, Mihalyko drove the “stroll” — an area frequented by sex trade workers and drug addicts — to sell some of his pills.

He approached a woman, who turned out to be an undercover officer, and asked if she knew anyone “looking to buy oxy 80’s.”

“IT’S IMPORTANT TO LOOK TO THE IMPACT OF ILLEGAL ACTIVITIES ON SOCIETY IN GENERAL.” TAMMY PRYZNYK

At her request, he provided his phone number. She called and bought two pills.

Mihalyko immediately fuelled up his truck for $63.

The police seized the truck and his cellphone as “instruments of unlawful activity.”

Mihalyko opposed forfeiture, and Court of Queen’s Bench Justice Peter Whitmore agreed the impact of losing the truck for the man of “modest means” was disproportionate to the offence.

In appealing, the Crown contended Whitmore had put too much emphasis on the value of the truck and the pills.

Appeal court Justices William Vancise, Stuart Cameron, and Robert Richards agreed, saying proportionality and fairness are factors to be considered, but so are the interests of society.

“What was required ... was a broader analysis that considered the benefit to society in the reduction of crime by reducing the profit motive and the compensation of victims,” Vancise wrote on behalf of the court. He added that Whitmore also failed to consider the effect of criminal activity in the north-central area, where the drug deal was made.

He said the person seeking an exemption must show forfeiture would be “draconian and unjust or manifestly harsh” — and Mihalyko hadn’t done so.