Category Archives: Civil Forfeiture in British Columbia

The Huynh case involved a civil forfeiture action based on a critically-flawed search warrant, which had been obtained on the basis of inaccurate and erroneous information which failed to disclose reasonable grounds that unlawful activity had occurred. The Defendant had previously won the right to a bifurcated trial, with Charter issues to be determined in advance of examination for discovery or other inquiry regarding the alleged marijuana grow operation which formed the basis for the Director’s claim.

Criminal charges had already been stayed against the Defendant, presumably on the grounds that all of the evidence in question had been illegally obtained.

The Director of Civil Forfeiture acknowledged that “the ITO contains errors which unless corrected mean that the ITO does not disclose reasonable grounds,” but argued that he should be permitted to introduce additional “amplification evidence” to demonstrate the grounds which police had for the search in question. The court found that the admission of such further evidence would be inappropriate in the civil context, just as it would be inappropriate in the criminal context:

“[31]        I do not agree that in the context of this case, the Director should be in any better position than the Crown would be in a criminal case.

[32]        Firstly, in a criminal case the burden of proof of breach of the Charter lies with the accused on a balance of probabilities.  The same applies here; therefore the context is not so very different.

[33]        Secondly, and I believe more importantly, in these proceedings the Director seeks to rely upon evidence gathered pursuant to the machinery of the criminal law and the powers of the state to prove the Director’s case.  Therefore, exactly the same Charter principles apply to the manner in which that evidence is obtained as would be applicable in a criminal case.  It should also be borne in mind that the Director seeks to obtain a remedy which would be very onerous to the defendant.”

This case confirms that Charter considerations must be given full consideration in BC civil forfeiture cases, and that the Director is precluded from bringing in his own evidence to paper over the errors of police in the first instance. In short, the Director is subject to the same level of Charter scrutiny in a civil forfeiture action as the Crown would be in a criminal action.

Decided by the BC Supreme Court on January 23, 2013.
Click here for the full text of the decision.

Trinh Tu Huynh, defendant in a civil forfeiture action against a home in Surrey, had subpoenaed Leslie LeClair, a Crown prosecutor who had stayed criminal charges against her in connection with the same marijuana grow operation alleged in the civil forfeiture action. The Director of Civil Forfeiture applied to set aside the subpoena of Mr. LeClair, arguing that the court could not make inquiries into the discretion of Crown Counsel.

Ms. Huynh argued that Mr. LeClair’s decision to stay the criminal charges against her was relevant to the constitutionality of the search of her Surrey property, which was a live issue to be considered by the court in the civil forfeiture proceeding.

Mr. Justice Ball of the BC Supreme Court, however, refused to uphold the subpoena, finding that to require a crown prosecutor’s attendance as a witness would compromise the Crown’s prosecutorial discretion, independent of questioning by the court:

[23] Upon a complete review of the submissions of counsel for the parties and the authorities cited, relying on the decisions in Krieger and Picha, the applicant has established that in his capacity as Crown counsel, he cannot be compelled by subpoena to attend the trial of this action for the purpose of giving evidence concerning the conduct of the Crown file involving Trinh Tu Nguyen. On that basis, pursuant to Supreme Court Civil Rules, R. 12-5, the subpoena issued to Crown counsel, Leslie LeClair, is quashed.

In this situation, it seems that prosecutorial discretion was used not to preserve the independence of the Crown from the court, but to establish a distinction between Crown Counsel and the Civil Forfeiture Office, allowing the two to act separately and exercise their discretion in an entirely contradictory manner.

Decided by the BC Supreme Court on January 21, 2013.
Click here for the full text of the decision.

In its review of the decision of Mr. Justice Metzger of the BC Supreme Court, the Court of Appeal considered the nature and the extent of the “interests of justice” defence codified in Section 6(1) of British Columbia’s Civil Forfeiture Act.

Although the Defendant, Frank Wolff’s pickup truck had been declared an instrument of unlawful activity, Metzger ruled that forfeiture of the truck was “clearly not in the interests of justice” given the circumstances of the case. He emphasized the fact that the unlawful activity in question was an isolated, one-time incident, that the truck was used primarily for lawful purposes, and that the truck was not owned by Mr. Wolff, but leased, at the time of the offence.

The Court of Appeal noted that the Director of Civil Forfeiture’s appeal was focused more on the reasons for judgement of Mr. Justice Metzger than on the refusal to order forfeiture of the truck. The Court took this opportunity to give direction on how the “interests of justice” should be determined, presenting a somewhat narrower interests of justice analysis than Metzger articulated in his reasons for judgement.

Madam Justice Newbury, in a unanimous decision, clarified that although delay in launching a civil forfeiture action might be considered in determining the interests of justice, it should not in and of itself be grounds to refuse forfeiture. Furthermore, Newbury stated that items used for a primarily lawful purpose can in some cases be subject to forfeiture, although “the relationship between the property sought to be forfeited and the unlawful conduct in question” should be considered in deciding whether forfeiture is proportional.

The Court of Appeal upheld Justice Metzger’s finding that it was disproportionate to hold a single one-time offender jointly and severally liable for all harms caused by unlawful activity of a similar type:

… it must be said the Director in this case was also asserting some “blanket” propositions that were simply unreasonable. Here I have in mind the submission that unless the total value of Mr. Wolff’s truck exceeded the total social costs of the marijuana industry in British Columbia, forfeiture would not offend the interests of justice (see para. 41); and the argument Mr. Wolff should be “treated as though he were jointly and severally liable” for all such costs (see para. 48). The trial judge rightly held that these propositions lay outside the bounds of proportionality and fairness. Indeed, any attempt to draw a causal connection between an individual offender’s unlawful activity and the “diffuse harms” to society of drug trafficking seems to me bound to fail.

Despite its criticisms of some aspects of the reasons for judgement, the Court of Appeal unanimously upheld Justice Metzger’s conclusion that forfeiture in the circumstances was not a just result, as follows:

Turning then to the interests of justice in this case, I note that Mr. Wolff was a first-time offender. He was in the main a productive and law-abiding member of society. The consequences of the criminal conviction were very serious for his career and indeed resulted in his having to leave his job as a fire captain. Although he may have expected to be paid for transporting the marijuana, there is no evidence he was so paid; and his equity in the truck was much larger than the value of the marijuana he was carrying. There was no evidence the truck had been used for drug trafficking previously, or that it has since been used for that purpose. In light of the serious consequences Mr. Wolff had already suffered, the trial judge did not expect that he would re-offend. In all the circumstances, I cannot say the court below was wrong in concluding that it would be manifestly contrary to the interests of justice to order the forfeiture of all or part of the value of the truck.

By focusing on the individual circumstances of the case at hand, the Court of Appeal narrowed the scope of this precedent, eliminating some of limits on forfeiture created by Justice Metzger’s decision. Nevertheless, the Wolff case provides a strong template for the “interests of justice” defence in circumstances where a one-time offender faces a harsh and inequitable result.

Decided by the BC Court of Appeal on November 22, 2012.
Click here for the full text of the decision.

The Director of Civil Forfeiture sought forfeiture of a property belonging to Hong Thu Thi Vo, on the basis that it was an “instrument of unlawful activity,” and/or that the funds used for purchase of the property were “proceeds of unlawful activity.” Ms. Vo filed a Statement of Defence, as did Luong Hien Bui, an individual who had advanced funds to Ms. Vo so as to finance the purchase of the property.

After Ms. Vo and Mr. Bui were examined for discovery, the Director applied to amend his Notice of Civil Claim, so as to expand the scope of the action to include another property, and to include further allegations about Ms. Vo’s financial transactions with Mr. Bui as well as Mr. Le, another individual who apparently advanced money to Ms. Vo.

The Defendant opposed the proposed amendments, arguing that they disclosed no legitimate cause of action against her. Mr. Justice Williams of the BC Supreme Court concluded that the Director need not implicate Ms. Vo in any specific criminal activity in order for the action to proceed:

“[76] The structure of the Act can essentially create a requirement for the defendant to prove the legality of her property. Since the Director need not prove any specific criminal activity to meet the standard of unlawful activity, unless the defendant has some evidence as to the legitimate origins of the property, she is in danger of having it forfeited. This approach has been endorsed by the courts in a number of cases, and so it cannot be said that advancing a case this way discloses no reasonable cause of action.

[77] It might be said that in order for Ms. Vo to meet the case against her, she needs more particulars of the alleged unlawful activity, but since the Director does not need to be aware of the particulars of the unlawful activity, it seems reasonable that he does not need to provide them.”

Furthermore, the court found that the Director was entitled to include statements about Mr. Le in his Notice of Civil Claim without adding Mr. Le as a party.

This decision goes to show the unique nature of the Civil Forfeiture Act as an open-ended tool for civil prosecution, completely devoid of the normal procedural requirements for particulars that would be present in a criminal trial.

Decided by the BC Supreme Court on October 4, 2012.
Click here for the full text of the decision.

The Defendant, Wesley Trimble, a Canadian citizen who for many years resided had resided on a sailboat, was subject to a civil forfeiture action when he arrived in Canadian waters without making a customs declaration. After approximately 10 days in Canada, his vessel was the subject of a search in which approximately $47,000 in Canadian currency was located. Several years earlier, Mr. Trimble had been accused of drug trafficking in Costa Rica, but had been acquitted.

The Director of Civil Forfeiture alleged the Mr. Trimble’s vessel was, on the balance of probabilities, either proceeds of past crime or an instrument of ongoing crime. On this basis, the Director obtained an ex parte Interim Preservation Order and seized the vessel, but after three weeks was required to justify the seizure, at which time Mr. Trimble’s counsel was entitled to make submissions.

Based on the evidence available, Mr. Justice Macaulay of the BC Supreme Court found that there was no actual evidence of unlawful activity on Mr. Trimble’s part, and that the Director’s entire case was based on suspicion and innuendo:

“[17] The purchase of a vessel for cash in a foreign jurisdiction and returning to Canada without making a customs declaration may give rise to suspicion. The presence of a large amount of cash and trace narcotics on board the vessel may give rise to further suspicion that the vehicle was used or is intended to be used in the illegal drug trade.

[18] However, suspicions are not evidence. It is possible that the Director’s suspicions might eventually prove well-founded, but the current evidence is indirect and does not support the inferences necessary to raise a serious issue that the vehicle is either proceeds of unlawful activity or that it has been used in the past or is likely to be used in the future, for unlawful activity. In other words, on the current evidence, the Director has no reasonable prospect of success in making out either claim.”

This is an encouraging example of the court’s ability to nullify frivolous civil forfeiture actions at the outset, simply by declaring that there is no serious issue to be tried, as opposed to putting both parties through the time and expense of an unnecessary trial.

Decided by the BC Supreme Court on October 4, 2012.
Click here for the full text of the decision.

The Hurtubise case made for a complex balancing act involving the interests of various part-owners of two properties in Mission, BC on which marijuana grow operations had been located. The court had to consider whether and to what extent forfeiture of the properties would be contrary to the interests of justice.

The court engaged in extensive analysis of the credibility of various witnesses, including several members of the Hurtubise family who owned interests in the properties, as well as various tenants. As a result of this analysis, Justice Weatherill determined that one of the properties (on Greenwood Drive) was to be forfeit in full to the Director of Civil Forfeiture, but that full forfeiture of the other property (on Dewdney Trunk Road) was clearly not in the interests of justice. Instead, Justice Weatherill ordered that a 1/5 interest should be transferred to the Director, while the other 4/5 should be preserved for members of the Hurtubise family who were not directly involved in the marijuana grow operation.

Overall, the Hurtubise case demonstrates that British Columbia’s judiciary are more than willing to impose harsh forfeiture orders against those implicated in marijuana grow operations, but that there is always the potential for partial relief from forfeiture when Defendants can demonstrate that they were lacking in culpability.

Decided by the BC Supreme Court on September 18, 2012.
Click here for the full text of the decision.

The Ngo case involved an appeal from the decision of a Master, holding that the desk order requisition process is not available as a means for the Director of Civil Forfeiture to achieve default judgement for forfeiture in circumstances where a Defendant has failed to file a defence.

BC Supreme Court Justice Dorgan upheld and reaffirmed the decision of Justice Davies in British Columbia (Director of Civil Forfeiture) v. Kingdon, 2011 BCSC 1501, that the Director cannot simply seek a Master’s desk order for default judgement, but must file a Chambers application in BC Supreme Court, supported by affidavit evidence that the Director knows of no fact that would constitute a defence to the forfeiture application in question.

Justice Dorgan concluded as follows:

“Obviously, this does not mean that default judgment cannot be requested or obtained. It means that the desk order requisition process is not available in seeking it. That process is simply inadequate for the court to fulfil its role in law and equity under the CFA, s. 6. To the question, then, of whether our Rules of court allow for a desk order default judgment procedure in a claim of civil forfeiture of cash under the CFA, or whether the matter must be spoken to in court, the answer is that the matter must be spoken to in court.”

Decided by the BC Supreme Court on July 6, 2012.
Click here for the full text of the decision.

Counsel for the Defendant, Trinh Tu Huyuh, argued that serious problems with a search warrant pertaining to Ms. Huyuh’s property (where a marijuana grow operation was discovered) had resulted in numerous Charter breaches, leading to a stay of proceedings in the criminal case against her. The question at issue was whether the court would allow the equivalent of a constitutional voir dire in the civil forfeiture action against Ms. Huyuh’s property, potentially resulting in the exclusion of evidence in advance of a full trial on the merits.

Mr. Justice Schultes of the BC Supreme Court ultimately concluded that there was a serious possibility that the matter could be resolved through a hearing on the constitutional issue alone, and that there should therefore be a bifurcated trial with the first portion dealing with constitutional issues alone:

“Considering all of these factors, I conclude that there is a meaningful possibility that the outcome of the Charter applications could resolve this case completely. This is one of those relatively uncommon cases that must have been envisioned by the framers of the rule, in which deciding one issue first offers benefits that significantly outweigh the presumptive inefficiency of litigating in slices … The analogy I draw here is to personal injury cases in which there is a really meaningful possibility that liability will not be found and that therefore that an assessment of damages will never be necessary.”

This decision goes to show that at least some of BC’s Supreme Court Justices are willing to give serious consideration to Charter issues in cases under the Civil Forfeiture Act, and that the Civil Forfeiture Office should expect serious challenges on constitutional issues in the months and years to come.

Decided by the BC Supreme Court on April 25, 2012.
Click here for the full text of the decision.

The Defendant had been found in possession of marijuana and pled guilty to possession for the purpose of trafficking, although he stated (and crown counsel accepted at the time of his plea) that he was a “blind mule,” unaware of the marijuana until shortly before being stopped by police. Based on the totality of the evidence, BC Supreme Court Justice Metzger was satisfied that the Defendant was a generally law-abiding individual, that his offence was an isolated one-time incident, and that he had no connection with organized crime.

The Defendant’s 2003 Dodge Ram had been declared, technically speaking, to be an instrument of crime. The question at issue was whether forfeiture in the circumstances was “clearly not in the interests of justice,” or alternatively whether the application of the Civil Forfeiture Act was unconstitutional given the facts of the case.

Weighing in the Defendant’s favour was his lack of a criminal record, the one-time nature of the offence, the retroactivity of the forfeiture (given that the Civil Forfeiture Act was not yet law at the time of the offence), and the fact that Mr. Wolff did not own the truck at the time of the offence, although he did buy out the lease some time later.

Mr. Justice Metzger ultimately found that forfeiture was clearly not in the interests of justice, given the facts and circumstances of the case, and that the truck should be returned to Mr. Wolff immediately. This is the first time that forfeiture has been completed denied under Section 6(1) of British Columbia’s Civil Forfeiture Act. In view of the result, Metzger found that the Defendant’s constitutional argument did not need to be considered.

Decided by the BC Supreme Court on January 24, 2012.
Click here for the full text of the decision.

In Kingdon, the Director of Civil Forfeiture applied for default judgement against three Defendants, Kingdon, Yu, and Shulte, on the grounds that they had not filed Responses objecting to the Director’s respective Notices of Civil Claim.

The Kingdon application involved a property in Surrey, BC, the Yu application involved a vehicle, and the Shulte application involved a vehicle and $2,140 in cash. The three applications for default judgement were consolidated into a single BC Supreme Court decision because all three involved similar issues.

Mr. Justice Davies of the BC Supreme Court found that in order to achieve forfeiture of the items in question, the Director would need to appear before a BC Supreme Court Justice and plead the merits of their case in Chambers. He determined that the “desk order” default judgement process under Rule 3-8(10) of the Supreme Court Civil Rules could not be used in cases under Civil Forfeiture Act.

Justice Davies’ reasoning for this was that an application for default judgement under rule 3-8(10) “must be supported by an affidavit setting out the facts that verify the claim and stating that the person swearing the affidavit knows of no fact that would constitute a defence to the claim except as to amount.” The Director had satisfied this obligation in all three cases at issue, which would theoretically be enough to establish liability in a civil case where no response had been filed.

In a civil forfeiture case, however, Justice Davies found that establishing liability “except as to amount” is not sufficient to obtain an order for forfeiture, without at least some consideration of the liability in question in relation to the value of the items being forfeit. To quote paragraph 75 of his decision:

“…the fundamental problem with the orders sought by the Director in each of these three applications is that in the face of, and contrary to, the sworn acknowledgment that there could be “defences as to amount” the Director seeks final orders forfeiting to the Director all of the interest of the defendants in their respective properties. Accordingly, the orders sought go beyond that which is supported by the affidavit evidence.”

Justice Davies went on to note that Section 6(1) of the Civil Forfeiture Act provided for relief from forfeiture that is “clearly not in the interests of justice.” The dominant considerations for establishing the “interests of justice” are proportionality and fairness, which is why the court must always weigh the extent of the liability in question against the value of the items being forfeit, in order to determine whether the forfeiture being sought would be manifestly disproportionate or unfair.

Unfortunately, the government of British Columbia has already done an end run around the court’s thoughtful and rational decision in Kingdon. The Province is now using a process known as “administrative forfeiture,” which places the onus on the owner of the property being forfeit to challenge the proposed forfeiture in court. If they fail to do so, no Notice of Civil Claim is even filed by the Director, and the courts have no opportunity to consider the merits of the claim.

Decided by the Supreme Court of British Columbia on November 7, 2011.
Click here for the full text of the decision.