FORFEITURE LAW CHALLENGED

Should a Regina man be forced to forfeit a $7,500 truck if it was used
in a $60 drug deal?

The Saskatchewan Court of Appeal is wrestling with that issue as it
mulls over the first legal challenge to the Saskatchewan Seizure of
Criminal Property Act. The law, which took effect July 1, 2009, was
created with the goal of seizing property and cash from illegal
activities and using the proceeds to fund victims programs and
policing operations. Since then, the province has collected about
$502,000 in cash and property. Most people just hand over the goods
without a fight, but David Wayne Mihalyko was the first to actually
legally fend off the application.

He won before the Court of Queen's Bench and was allowed to keep his
13-yearold truck - but the province opted to seek a ruling from a
higher court in what has become a test case for the
legislation.

After listening to legal arguments Tuesday, Justices Stuart Cameron,
William Vancise and Robert Richards reserved decision on the case.

Mihalyko sold two Oxy-Contin tablets, a prescription drug, to a woman
last year in Regina. He thought the woman was a sex trade worker; she
was actually an undercover Regina police officer - and he was
subsequently busted. The sale came about as a result of a call to his
cellphone after he had previously given the woman the number should
she need any drugs. In February Mihalyko pleaded guilty to a
trafficking charge and received a nine-month conditional sentence,
served in the community. But he wasn't done paying for his crime.

Regina police seized Mihalyko's cellphone and the Chevrolet Blazer he
had used to deliver the drugs. The province then applied for an order
forfeiting the items to the Crown as "instruments of unlawful activity."

But Mihalyko's lawyer Brad Tilling had successfully argued at the
Court of Queen's Bench forfeiture of the truck wasn't in the interests
of justice - a so-called "escape clause" in the legislation. Finding
no evidence that it was more than an isolated incident, Justice Peter
Whitmore noted that police watched as Mihalyko, a man of "modest
means" who had a prescription for the drugs, used the $60 profit to
help fuel up his truck for $63. "It does appear to me that the impact
(of losing the truck) on the respondent is significant and
disproportionate to the offence of illegally selling two OxyContin
tablets for $60," Whitmore said in declining to make the forfeiture
order.

But that's where Whitmore erred, Justice Department lawyer James
Fitz-Gerald argued before the appeal court. He said the judge had to
weigh more than the value of the truck and the pills. First, it was up
to Mihalyko to prove the impact of losing his vehicle, but no such
evidence was filed, said Fitz-Gerald. And the judge should have also
considered the impact of drug trafficking on the community, the public
interest in deterring crimes, the use of the funds collected, and
whether or not forfeiture was "clearly" - as the legislation is worded
- - not in the interests of justice.

"This was a clearly considered breach of the criminal law ... The
gravity of the breach is significant," Fitz-Gerald added.

But Tilling said Whitmore carefully considered the facts and the law
in reaching his conclusion.

"If this isn't the low end of things, I don't know what is ... It
couldn't be more minor," he said. Tilling said it was only "rampant
speculation" by the police that Mihalyko was involved in anything
bigger than one transaction. And that's what sets it apart from other
cases. Although Mihalyko has a lengthy criminal record, his only
previous drug conviction was from 1986 for simple possession.

He added that Mihalyko's offence was "a moment of desperation." His
gas tank"was "bone dry. It was a cold winter night ... It didn't go
into a big roll of cash."

Lawyer Neil Robertson, representing Regina's police chief, spoke in
support of the province's appeal. He said the societal harm of drug
trafficking has to be considered. "Trafficking in prescription drugs
is no better than illegal drugs," said Robertson.