The Crowley case involved an application for forfeiture of a home in which police had found a prohibited firearm, a controlled substance, and approximately $93,000 in cash. Most of the money had already been forfeit to the Canada Revenue Agency and federal government. The Director apparently saw this forfeiture as an insufficient penalty for simple possession of a firearm and a narcotic, and argued that the property where the items had been found should also be forfeit.
Although the Defendant initially filed a Response to Civil Claim, he failed to comply with his disclosure obligations in a timely manner, leading the court to strike his Response and remove him as a party to the action. When the Director applied for default judgement, the Defendant appeared and attempted to make submissions against forfeiture. Mr. Justice Rogers ruled that Mr. Crowley was no longer a party to the action and could not make submissions. He subsequently heard from counsel for the Director and made an order for forfeiture of the property, without giving reasons for judgement.
In considering this situation, the BC Court of Appeal found that Justice Rogers had erred in finding he had no discretion to hear from Mr. Crowley, and further erred in failing to give reasons for judgement.
The absence of reasons for judgement, according to the Court of Appeal, made it impossible to determine whether Justice Rogers had considered whether forfeiture in the circumstances was “clearly not in the interests of justice,” a relevant factor which must be considered before granting default judgement:
[82] The Director took the position that forfeiture orders could be made solely on the basis of the allegations of fact in his notice of civil claim, but he also adduced evidence relevant to the interests of justice. In the absence of any reasons for judgment, it is not possible to know whether the judge considered that he had an obligation to determine whether forfeiture, in whole or in part, clearly was not in the interests of justice. It is not possible to determine if he made such a determination.
[83] Section 5 of the Act contains two bases on which forfeiture may be ordered: if the property is “proceeds of unlawful activity” or is “an instrument of unlawful activity”. The appellant contends that the absence of reasons for judgment deprive him of the ability to know on what basis the Property was forfeited and makes appellate review extremely difficult, if not impossible. I agree.
The matter was remitted to the BC Supreme Court for further deliberation on the interests of justice in Mr. Crowley’s case.
This decision is a good demonstration of the rule that the “interests of justice” be fully examined by the court before forfeiture is granted, even by way of default judgement.
Decided by the BC Court of Appeal on February 27, 2013.
Click here for the full text of the decision.
I can tell you all, that not one in four lawyer we had, ever told us to default. Oh no!, everyone told us it’s all doom and gloom, and to hand over $50k (collectively) and we’ll see what we can do.
Really?
Sure would have been nice that “one” out of four would have told us, ” let’s wait it out”. Of course there’s no legal commerce then is there. It’s a big stinking scam folks, we are the bloodbag.