In the Hyland case, the Defendant Mr. Hyland had purchased 421 lottery tickets from Samuel Hampton, a lottery ticket dealer in Burnaby, BC. The tickets turned out to have a value of $67,200. Mr. Hyland, who had taken the tickets with him to Las Vegas, couriered them back to Mr. Hamptom with the instruction that he use the proceeds to purchase more lottery tickets.
In the mean time, Mr. Hampton was charged under the Gaming Control Act for unauthorized sale of lottery tickets and the tickets in question were seized. The Crown argued that the tickets were “tainted by criminality” and sought a criminal forfeiture order under Section 490(9) of the Criminal Code. Mr. Hyland, meanwhile, argued under Section 490(10) of the Criminal Code that he was the lawful owner of the tickets and entitled to their return.
BC Provincial Court Judge Ehrcke found that Mr. Hampton and Mr. Hyland were involved in an extra-provincial lottery ticket resale scheme, but was not satisfied beyond a reasonable doubt that these particular tickets were possessed unlawfully, and therefore declined to order forfeiture under the Criminal Code.
At this point, the Director of Civil Forfeiture filed a civil action against the proceeds of the tickets, claiming that these monies were, on the balance of probabilities, the proceeds of criminal activity.
The BC Supreme Court found that the doctrine of issue estoppel precluded such an action, but the Court of Appeal overturned this decision, ruling that the same issue had not been before the Provincial Court Judge, and that a distinct issue of whether the tickets were “instruments of crime” remained to be decided.
The Hyland case is a clear example of the civil forfeiture process being used to inflict double jeopardy in regard to property rights which would clearly be unconstitutional in regard to the liberty interests of the accused. In other words, if a criminal prosecution fails, the Hyland precedent allows the Crown to take a second swing at the property of the accused, without definitively proving that it is the proceeds or instrument of crime.
Decided by the BC Court of Appeal on May 4, 2010.
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