Category Archives: Civil Forfeiture in Nova Scotia

Building on the analysis set out in the Allen case, Mr. Justice Wood of the Nova Scotia Supreme Court refused forfeiture of $4,755.00 in cash found in the possession of the defendant, Matthew Craig Walsh.

Although Mr. Walsh (a passenger in a vehicle subject to a traffic stop) admitted that he had a small amount of marijuana in his possession and failed to provide a detailed explanation of the source of the money, Justice Wood found that there was insufficient evidence to link the money to unlawful activity:

[7] The existence of a small quantity of marijuana in Mr. Walsh’s pocket is not in and of itself an indication that he was engaged in trafficking. The large amount of cash could be an indication of trafficking activities, depending upon the surrounding circumstances. In this case, I am not satisfied that there are enough other indicators to prove on a balance of probabilities that the money was acquired by selling drugs or would be used for that purpose. There is no admissible evidence to connect Mr. Walsh to the drug trade and no indication of any convictions for drug related offences.

Decided by the Supreme Court of Nova Scotia on April 25, 2013.
Click here for the full text of the decision.

Gerald McNamara, a known drug dealer with four trafficking-related convictions between December 2007 and June 2012, had been observed by police engaging in an “exchange” with another individual then engaging in “several short cell phone calls.” Police proceeded to search Mr. McNamara and found him to be in possession of cocaine, marijuana, and $2,494.41 in cash.

Justice Wood of the Nova Scotia Supreme Court ordered forfeiture of the money, finding that there was clear evidence of trafficking:

“[6] I am satisfied that the Manager has met the necessary burden of proof and that a forfeiture order should be granted pursuant to s. 7(1) of the Act. I do not believe that there are any circumstances which would justify exercising the discretionary powers to provide relief from forfeiture found in s. 8 of the Act.”

This relatively clear-cut case is distinguishable on its facts from more speculative civil forfeiture endeavours such as Nova Scotia (Civil Forfeiture) v. Allen in which the same Justice Wood denied forfeiture and set out the evidentiary burden which Nova Scotia’s Manager of Civil Forfeiture is required to meet.

Decided by the Supreme Court of Nova Scotia on April 25, 2013.
Click here for the full text of the decision.

Allen is the first civil forfeiture case to reach the courts in the Province of Nova Scotia. In considering the Crown’s application for default judgement, Mr. Justice Wood clarified that even in circumstances where no defence has been filed, the Manager of Civil Forfeiture must meet an evidentiary burden to demonstrate that forfeiture is warranted:

[16] I am satisfied that a proceeding in which a forfeiture order is claimed requires an evidentiary hearing even if the defendant has not filed a defence. I come to this conclusion primarily because it is an in rem proceeding which requires the court to adjudicate on the state’s entitlement to the asset in question. In some ways it is analogous to a foreclosure action, which is also an in rem proceeding against land. In those cases, the plaintiff is required to prove the debt and the validity of the mortgage before obtaining an order of foreclosure and sale, even though no defence has been filed.

Justice Wood further considered the rules of evidence in civil forfeiture proceedings, and concluded that the Manager of Civil Forfeiture must elicit reliable evidence against a defendant, even in circumstances where no defence is filed. Furthermore, when the court considers this evidence, the same rules regarding hearsay and opinion evidence apply:

[28] I am satisfied that when the state seeks forfeiture of assets from an individual, they ought to prove that claim by evidence on a balance of probabilities whether the matter is defended or not. There may be a variety of reasons why an individual chooses not to engage the government in litigation over a few thousand dollars seized from them by police. I am not prepared to conclude that their failure to defend should be taken as any admission against their interest in the circumstances.

Police had seized $7,750 from Mr. Allen (who had previous convictions for simple possession of narcotics), disbelieving his statement that he obtained the money through the legal sale of two motor vehicles. Although no subsequent explanation or defence had been provided by Mr. Allen, the court found that the opinion evidence of the officer was not sufficient to justify forfeiture on the balance of probabilities:

[38] The Manager has provided no direct evidence that Mr. Allen was involved in the sale of illegal drugs or that the cash in question was generated by such activities. It is a circumstantial evidence case and the Manager says that all of the circumstances support the inference that the money seized is proceeds of unlawful activity or an instrument of unlawful activity as those terms are defined in the Civil Forfeiture Act. The only facts which might support such an inference are Constable Harrington’s opinion and the amount and nature of the cash seized.

[39] I put limited weight on Constable Harrington’s opinion, particularly since it is based, in part, on inadmissible and irrelevant considerations. The amount of money and the fact that it was primarily $20 bills does not provide much support for the Manager’s position without other indicia of illegal activities.

This goes to show how the sound reasoning of a conscientious judge can derail an unjustified forfeiture, even in circumstances where a defendant chooses to exercise his or her right to remain silent by not filing a defence. It also reaffirms and extends the BC Court of Appeal’s recent finding that a judge must always consider the interests of judgement, even in undefended civil forfeiture actions.

Decided by the Supreme Court of Nova Scotia on March 19, 2013.
Click here for the full text of the decision.