Pubdate: Tue, 17 Apr 2012
Source: Regina Leader-Post (CN SN)
Copyright: 2012 The Leader-Post Ltd.
Website: http://www.leaderpost.com/
Details: http://www.mapinc.org/media/361
Author: Barb Pacholik

MAN CALLS RULING UNFAIR

A Regina man who launched - and lost - the first challenge to a
Saskatchewan law that seizes property used in criminal acts contends
the courts have given the province "a licence to steal."

"Can you imagine having $50 worth of weed and you just bought a brand
new $20,000 car - well then they should take it because the
circumstances can't be any different," David Wayne Mihalyko said in an
interview on Monday.

He was reacting to last week's ruling by the Saskatchewan Court of
Appeal, which ordered him to forfeit his 1998 Chev Blazer, worth about
$7,500. He was driving it the night he sold two of his prescription
pills for $60.

"I find it was extreme, unfair and basically gives the government a
licence to steal," Mihalyko said of the appeal court's interpretation
of the Saskatchewan Seizure of Criminal Property Act (SSPCA).

The law, which took effect in July 2009, allows the province to seize
property and cash from illegal activities and use the proceeds to fund
victims programs and policing operations.

Asked last week if the ruling might lead to a broader application of
the law, government lawyer Tammy Pryznyk, counsel for the director of
the SSPCA, said the court was clear each case depends on its own set
of circumstances.

"In this particular case, because the director felt there was such an
impact on the north-central community - because of the interplay
between prostitution and drug activity and crime - that made this a
worthwhile matter despite the fact that the vehicle may not have been
worth as much some other property," she said.

Since the SSPCA took effect in July 2009, the province has used it
about 20 times, netting roughly half a million dollars.

Most offenders simply agree to the order, but Mihalyko and his lawyer
Brad Tilling were the first to challenge the law and initially won.
Mihalyko said that while he can appreciate the need for a law that
targets longtime, repeat offenders or those involved with large
amounts of drugs, his was a "one-time, isolated offence."

"I see what they're trying to do, and I agree with that, but in my
situation I find it too extreme and unfair," added the 49-year-old
man. After pleading guilty to trafficking, Mihalyko was given a
nine-month conditional sentence, served in the community. He said the
ruling is like a second punishment.

Mihalyko was charged after selling two Oxycontin pills to an
undercover Regina police officer, who was posing as a sex trade worker
in what was described as a "solicitor-john operation."

Mihalyko had the pills by prescription for an injured
foot.

He immediately used the money to fuel up in his truck, which was
seized that night in September 2010 when he was arrested.

The province kept the truck until Court of Queen's Bench Justice Peter
Whitmore ruled last April that Mihalyko should get it back. The judge
found that the impact of taking the truck from a man of "modest means"
for a $60 drug deal was disproportionate and "not in the interests of
justice."

However, in reversing that decision, the appeal court said Whitmore
should have also considered the broader impact of such criminal
activity on the community. The court said Mihalyko had failed to prove
forfeiture would be "draconian and unjust or manifestly harsh."

He'd like to see what Canada's top court might say about the law but
doesn't have the means to launch such a challenge. "If there was a way
or anybody that would want to take it on, I'd sure like to take this
to the Supreme Court," he said.
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MAP posted-by: Matt