April 30, 2018
Bich, Rancourt, Gagné
Appeal from a judgment of the Court of Quebec dismissing an application for the return of forfeited property under s. 20(4) of the Controlled Drugs and Substances Act (S.C. 1996, c. 19). Dismissed.
The appellant is the owner of three buildings that were the subject of restraint and management orders following charges against the impleaded party and 14 other individuals of production and exportation of cannabis, as well as possession of property obtained by crime. In support of his application, the appellant essentially repeated the allegations of absence of connivance or collusion with the accused and the reasonable precautions he took in the same circumstances as those he raised in the context of a motion for the return of seized property, which was dismissed.
While it is true that the judge often intervened during the appellant’s testimony, she never crossed the limits established by the case law. A reasonable and right-minded person applying themselves to the question in any depth would not find that she was biased. Furthermore, the judge did not err in her assessment of the appellant’s credibility. Finally, the appellant’s argument that the judge erred by imposing on him the burden of demonstrating his innocence on a balance of probabilities when s. 20(4) of the Act requires only prima facie proof is dismissed. Case law and scholarly commentary generally acknowledge that claims regarding offence-related property must be proved on a balance of probabilities. Furthermore, the Court cannot find, as the appellant would have it do, that, had the legislator wanted the degree of evidence to be that of the balance of probabilities, it would have said so in s. 20(4), as it did under s. 16(1) of the same statute, instead of using the verbs “appears” or “semble”.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca
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