No evidence $67K came from crime, but judge orders it taken anyway

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A Saskatchewan judge has ordered $67,480 in cash police discovered during a traffic stop four years ago be forfeited to the Crown, despite the absence of any smoking gun linking the two men in the car to contraband tobacco sales.

The province’s director of civil forfeiture took Antonio Romano to Saskatchewan’s Court of Kings Bench to claim the money Mounties seized from a car they pulled over on Highway 1, on June 17, 2021, near Beverley, Sask., at approximately 4:16 a.m. Justin Foley was behind the wheel of the Toyota Corolla and Romano, who had rented it, was in the passenger seat.

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“There is no direct evidence that either Mr. Romano or Mr. Foley were trafficking contraband cigarettes,” Justice Jodi Wildeman wrote in a recent decision out of Regina.

“In this case, the director relies on circumstantial evidence to prove the property is the proceeds of, or an instrument of, unlawful activity.”

Romano and the Attorney General of Canada were both named as respondents in the court application. But neither sent a lawyer to the hearing where Tammy Pryznyk, Saskatchewan’s director of civil forfeiture, applied to keep the cash under the Saskatchewan Seizure of Criminal Property Act.

RCMP Cpl. Alexandros Giannoulis testified that after he pulled the Toyota over, his check of a police database revealed “Foley had a criminal record, including a conviction for possession of a narcotic from 1996 and possession of property obtained by crime over $5,000 from 2005 and had three drug related convictions withdrawn against him. The RCMP computer system also indicated Mr. Foley was a high-level cocaine distributor and involved in several multi-kilogram level cocaine trafficking files.”

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As Romano struggled to find the rental agreement for the car, “Giannoulis observed two or three cellular phones inside the glovebox of the Toyota plus an additional phone on the floor of the vehicle,” said the decision, which notes Romano’s hand was bleeding at the time.

After consulting with a colleague, “Giannoulis formed the belief the occupants of the Toyota were in possession of a controlled substance.”

He arrested Foley and Romano and searched the Toyota, finding two bundles of cash in the spare tire compartment, a third bundle in a handbag in the trunk, and a fourth located inside a cooler in the trunk.

“In addition to the seized monies, a large amount of unused Ziploc-style bags, three cellular phones, and one laptop was seized,” said the decision, dated Jan. 13.

Police arrested Romano and Foley for possession of proceeds of crime over $5,000, it said.

Pryznyk “argues the investigation reveals patterns of behaviour or conduct that are indicative of trafficking,” said the decision.

The judge was “satisfied that it is more probable than not the property was proceeds of or instruments of unlawful activity. In particular, when examining the admissible evidence, there are a number of highly suspicious circumstances that have gone unexplained and unchallenged.”

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The four bundles of cash found in the Toyota was one of them, Wildeman said. “It is unusual to transport such a significant amount of cash in a vehicle while travelling across the country.”

Based on where police found the money in the car, the judge inferred “the cash was hidden to avoid detection.”

Wildeman noted material inconsistencies in the statements provided by Foley and Romano “on the nature of their relationship and the circumstances of their trip, including” how long they’d known each other. Foley told police it was five to six years, while Romano indicated it was 17 years.

Foley told police he worked as a contractor, but Romano said Foley owned a pizzeria.

The men — who told police they were driving back to Ottawa from Calgary — were inconsistent on “how they had spent their time in Calgary, including whether they had made any stops while driving to Calgary from Ottawa, what they did while in Calgary, and whether they saw anyone while in Calgary,” said the judge.

“Despite indicating they knew one another for years, Mr. Romano and Mr. Foley were not sure of the others’ last name.”

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Romano “provided an evolving explanation for how he obtained more than $67,000 in cash. He first indicated the money came from gambling, but then later advised the money resulted from the sale of jewellery to three separate people. He subsequently stated the money came from the sale of jewellery to one Asian woman in her late fifties. Mr. Romano had no bill of sale for the jewellery.”

Information police gleaned from the cell phones and laptop seized from the Toyota “suggests both Mr. Foley and Mr. Romano were associated with selling ‘smokes,’” said the judge.

“One of the cell phones identified as belonging to Mr. Foley contained a text message sent by Mr. Foley on May 31, 2021, indicating he would be in Vancouver next week selling ‘Duty free native smokes’ for ‘1500$ a case of 50 cartons.’ There was also an instant message on June 16, 2021 between Mr. Foley and a contact where the contact indicated he had ‘only sold about 500 bucks worth of smokes’ and requested Mr. Foley send him ‘a list of the types of smokes I can get for those numbers,’ to which Mr. Foley responded that he would send a detailed list when he returned to his room.”

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Foley also “accessed a number of websites regarding cigarettes including in relation to prices, tax rates, and contraband cigarettes,” said the decision.

“Mr. Foley sent messages to a contact to make plans to meet the day he was arrested. Corporal Giannoulis phoned the contact, who advised Mr. Foley was trying to sell him cigarettes.”

One of the mobile phones identified as Romano’s “contained a number of suspicious messages between Mr. Romano” and a contact looking for “smokes” samples.

“Mr. Romano asked the contact to rent a car and let him use it for a week, followed by a discussion of whether the contact had a criminal record and a request to pay him ‘5 k a trip.’ Mr. Romano responded, ‘I have a driver.’”

Romano responded to all the police questions in the Toyota, even the ones directed at Foley, said the judge.

“Based on Mr. Foley and Mr. Romano’s statements to police, it appears the seized monies belonged to Mr. Romano. However, Mr. Romano did not provide any evidence on this application to explain the information found on the cell phones and laptop nor the significant amount of cash found in the Toyota,” Wildeman said.

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“Further, I do not believe Mr. Foley and Mr. Romano’s explanations provided to police during the investigation.”

Their “narratives were inconsistent in material ways, including the nature of their relationship and what they were doing while in Calgary. In addition, Mr. Romano’s changing and inconsistent explanation for how he came to possess more than $67,000 in cash is not believable.”

Common sense suggests that “anyone who is the subject of an erroneous seizure by the state of money,” would try to get it back, said the decision.

“However, in this case, Mr. Romano did not provide any evidence to explain the source of the cash found in the Toyota or the circumstances of his trip to Calgary. In fact, none of the director’s evidence was contested,” Wildeman said.

“I am satisfied on a balance of probabilities the property is proceeds of the illegal sale or purchase of contraband cigarettes,” said the judge.

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