IN THE COURT OF APPEAL OF MANITOBA

Transcription

1 Citation: R v Sweeney, 2016 MBCA 6 Date: Docket: AR IN THE COURT OF APPEAL OF MANITOBA Coram: B E T W E E N: Madam Justice Barbara M. Hamilton Mr. Justice Alan D. MacInnes Madam Justice Jennifer A. Pfuetzner HER MAJESTY THE QUEEN S. J. Thliveris for the Appellant (Applicant Respondent - and - A. M. Turner and DALE SON SWEENEY H. D. P. Crawley for the Respondent (Accused - and - HUGO HEIDINGER Appeal heard and Decision pronounced: Appellant January 13, 2016 HAMILTON (for the Court: [1] The appellant appeals a forfeiture order made, pursuant to section of the Criminal Code (the Code, by the sentencing judge in these proceedings. The forfeiture hearing concerned a Harley Davidson motorcycle, a Bayliner boat and trailer, a Chevrolet Corvette and a Chevrolet Silverado (the disputed property. The appellant is the registered owner of the disputed property. The sentencing judge found that the appellant was a nominal owner only and that the accused (Sweeney was the real owner entitled to possession of the disputed property.

2 Page: 2 [2] Sweeney pled guilty to two offences arising from the RCMP drug trafficking investigation called Project Flatlined: 1 instructing a criminal organization engaged in cocaine trafficking between May 1, 2011 and February 29, 2012; and 2 possession of proceeds of crime from trafficking controlled substances between March 2, 2004 and February 29, The sentencing proceeded on an agreed statement of facts in which Sweeney agreed that during a four-month period in Project Flatlined, he received at least $338,155 from trafficking kilograms of cocaine; he had over $500,000 of unsourced income between 2007 and 2011; and tax records showed that, since 2004, his annual family income was approximately $40,000. In addition to agreeing to a total sentence of 11 years, he agreed to the forfeiture of specified assets as proceeds of crime or offence-related property. As for the disputed property, Sweeney stated that he was not the owner and claimed no interest in it. He did not name the owner. [3] The Crown gave notice to the appellant under section (1 of the Code, who applied for relief from forfeiture under section (3 of the Code: Order of restoration of property (3 Where a court is satisfied that any person, other than (a a person who is charged with, or was convicted of, a designated offence, or (b a person who acquired title to or a right of possession of that property from a person referred to in paragraph (a under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property, is the lawful owner or is lawfully entitled to possession of any property or any part thereof that would otherwise be forfeited

3 Page: 3 pursuant to subsection (1 or (2.01 or (2 and that the person appears innocent of any complicity in an offence referred to in paragraph (a or of any collusion in relation to such an offence, the court may order that the property or part thereof be returned to that person. [4] The evidence at the forfeiture hearing, which lasted two days, consisted of three affidavits filed by the appellant, one affidavit from Sweeney, the affidavit from Detective Hawes of the Winnipeg Police Service and his viva voce evidence in cross-examination. As well, at the hearing, the Crown called an employee of the rural municipality in which the appellant lived in response to assertions made in the appellant s affidavits that Sweeney was storing some of the disputed property because of zoning issues affecting the appellant s property. [5] The judge found as a fact that Sweeney was the beneficial owner of the disputed property, and that the appellant was nothing more than a nominee, whose purpose, back then and even up to now, was to protect assets from the police. Pursuant to section of the Code, the appellant appeals that finding, arguing that it is nothing more than speculation. [6] He also appeals the finding by the sentencing judge that the disputed property was proceeds of crime under the Code. In fact, that ground of appeal was his major argument in his factum. In our view, we need not deal with this ground of appeal because the appellant has not demonstrated that the sentencing judge made a palpable and overriding error when he found that Sweeney was the beneficial owner of the disputed property and that the appellant was simply a nominee.

4 Page: 4 [7] Our reasons can be briefly stated. [8] The judge reviewed the evidence in some detail and explained why he did not accept the evidence of either the appellant or Sweeney, and accepted the evidence of Detective Hawes. He found that Sweeney s evidence was late-coming, self-serving and tailored to the Crown s evidence. He found that the evidence from the employee of the municipality refuted the appellant s evidence about the zoning issues pertaining to his property. The sentencing judge was entitled to make the findings of credibility that he did and they are entitled to deference. Detective Hawes evidence, among other things, showed that the disputed property, except for the motorcycle, was seized from Sweeney s home or business location at the conclusion of Project Flatlined, that he had used this property prior to his arrest on an ongoing basis, and had conversations about, and dealings with, the property that were consistent with ownership. Hawes affidavit also included evidence of a close relationship between the appellant and the Hells Angels, including Sweeney. As for the motorcycle, Sweeney raced it and photographs and police observations showed Hells Angels stickers on it. It was seized from the World of Wheels motorcycle show at the Winnipeg Convention Centre. [9] This, and other circumstantial evidence, entitled the judge to make the finding of fact about the ownership of the disputed property that he did. As a result, the appellant failed to discharge his burden under section before the sentencing judge on the required balance of probabilities. Given this, there is no basis for appellate intervention.

5 Page: 5 [10] The appellant s appeal is dismissed.