12/26/2013 01:15 EST | Updated 02/25/2014 05:59 EST

$13K Found In Boots 'Tainted By Crime', Crown Can Keep It

A big wad of cash found in an Ontario man's boots was likely connected to illicit drugs and must be forfeited to the Crown, Saskatchewan's highest court has ruled.

That's a reversal of a Queen's Bench judge's original decision that there was "no evidence" to support the claim the $13,500 found in Bryon Kelly's boots was from the sale of drugs or would be used to buy drugs.

2 Windsor men at centre of case

Court heard the Windsor man came to the attention of RCMP in January, when he rolled his truck near Wolseley, Sask.

Kelly and a passenger, Daniel Kotyk, also from Windsor, were found at the scene. 

After a criminal record check revealed that Kotyk had a recent drug conviction and wasn't supposed to leave Ontario, the two were taken to the Indian Head detachment for questioning in separate rooms.

During Kelly's interrogation, a police officer noted a marijuana smell that grew stronger as time went on.

Kelly said it was because Kotyk had been smoking marijuana in the truck, but a search revealed Kelly had a small amount of pot in one of his boots — as well as $13,500 in the other.

Money for barbeque sauce business, police told

At first, he said the money was his and was going to be used to invest in a barbeque sauce business in B.C.

He couldn't recall the name of the company or what kind of barbeque sauce it made.

Later, Kelly changed his story and said the money was Kotyk's.

Meanwhile, Kotyk originally said the money was Kelly's, but when confronted with Kelly's story, he agreed the money was, in fact, his.

Kotyk's story was that he planned to use the $13,500 to buy pickup trucks in B.C. and then resell them for a profit. Buying into the barbeque sauce business was also an option, he said.

Suspect tells cop he can't prove allegations

Court heard a police officer told Kotyk it was clear to him that they had been going to B.C. to buy drugs to take back to Ontario.

Kotyk replied, "Yeah, but there is no way you can prove that".

It was these facts, plus the fact that neither Kelly nor Kotyk applied to get the money back, that a three-judge appeal court panel considered before making their Dec. 20 decision.

The decision said the original judge erred.

Clear evidence cash was illicit, court says

"In our view there was clear, convincing and cogent evidence to satisfy the balance of probabilities test that the funds in question were either proceeds of unlawful activity or an instrument of unlawful activity," Appeal Court Justice Maurice Herauf wrote in his 18-page decision. 

The court agreed with the government's theory that the money was "tainted by crime" and was connected to the "illegal sale or purchase of illicit drugs."

Herauf's ruling was was concurred with by justices Stuart Cameron and Peter Whitmore.

The $13,500 must therefore be forfeited to the Crown in right of Saskatchewan, the appeal court said.