British Columbia (Director of Civil Forfeiture) v. Dery, 2013 BCSC 1643 – Speeding Not Grounds for Civil Forfeiture

Jason Dery’s 2008 Ducati motorcycle was seized by British Columbia’s Director of Civil Forfeiture as a result of a series of Motor Vehicle Act infractions, including an incident in which the Defendant accelerated to speeds of 200-km/h on a rural road outside Victoria, BC.

The Director alleged that the Ducati was an “instrument of unlawful activity … likely to cause serious bodily harm to a person,” and therefore should be subject to forfeiture under the province’s Civil Forfeiture Act. In support of this contention, the Director alleged that Mr. Dery was guilty of dangerous driving, contrary to Section 249(1)(a) of the Criminal Code.

The fact remained, however, that Mr. Dery had not been convicted of dangerous driving. Although he admitted contravening the Motor Vehicle Act on a number of occasions, he had paid the fines for these offences and denied that his behaviour constituted a Criminal Code offence. Furthermore, the provincial Crown had declined to pursue such a charge.

Mr. Justice Bowden of the BC Supreme Court accepted Mr. Dery’s un-contradicted testimony that: “the road was straight and he did not observe any person or vehicle on the road. He had travelled on that road a number of times in the past. It was in a rural area and there were no side streets. It was a sunny and dry day. He was testing the performance of the Ducati after it had been serviced.”

In light of these facts, Justice Bowden was not satisfied that the offence of dangerous driving had occurred and found that the Ducati was not properly subject to forfeiture under British Columbia’s Civil Forfeiture Act:

“[20] The only evidence that was before the Court of unlawful activity was that the defendant was operating the Ducati on four occasions when he exceeded the posted speed limit. There is no evidence of any behaviour of the defendant in operating the Ducati on those days other than speeding, nor is there any evidence that a pedestrian or other vehicle was at risk of harm because of the defendant’s actions…

[32] While I do not want it to be taken from these reasons that I condone the behaviour of the defendant in operating the Ducati at high speeds and contrary to posted speed limits (for which he has incurred substantial penalties), I have concluded that the Director has not established that the Ducati is an instrument of unlawful activity as that term is defined in the CFA. Accordingly, an order forfeiting the Ducati to the government will not be made.”

Decided by the BC Supreme Court on September 5, 2013.
Click here for the full text of the decision.