Director of Civil Forfeiture v. Robinson and Allwright, 2014 BCSC 2083 – Director’s Frivolous Claim Puts Defendant to Unnecessary Expense

The Director of Civil Forfeiture sought an interim preservation order of a pickup truck after police received information “from a confidential source” that the truck was being driven by an intoxicated male who was prohibited from driving. By the time police caught up to the truck, the driver had allegedly switched seats with his female passenger, who was not intoxicated and was the lawful owner of the truck.

Section 8 of the Civil Forfeiture Act provides that an interim preservation order may be granted where there is a “serious issue to be tried” that the property in question is proceeds or an instrument of unlawful activity.

Section 1 of the Civil Forfeiture Act defines instrument of unlawful activity as property which “has been used” or “is likely to be used” in unlawful activity that, in turn, “resulted in or was likely to result in the acquisition of property or an interest in property” or “caused or was likely to cause serious bodily harm to a person.”

Mr. Justice Thompson concluded that the definition in Section 1 “requires proof of likelihood,” and that mere speculation about possible harm is not sufficient to establish a serious issue to be tried:

“Driving while impaired certainly can be said to elevate the risk of causing serious bodily harm, but the fact is that the vast majority of individuals who operate a vehicle while impaired do not in fact cause serious bodily harm to other people on any one particular trip.”

Justice Thompson distinguished the case of Director of Civil Forfeiture v. Henry, in which a motorist’s “persistent and recent history of drinking and driving” supported a serious question to be tried:

“Mr. Robinson’s relevant driving record is very dated, the vehicle being targeted by the Director is not his, and the vehicle’s owner has pledged to not allow Mr. Robinson to drive it until he can do so lawfully.”

In conclusion, Justice Thompson found that the seizure of the truck was a “zealous” attempt at forfeiture outside the proper ambit of the Civil Forfeiture Act, which justified costs against the Director:

“Regrettably, this appears to be a case where the office of the Director of Civil Forfeiture has taken zealous measures outside the proper bounds of its home statute with the unfortunate effect of depriving a citizen of lawful possession and use of her property, and putting that citizen to what I suspect is considerable expense and inconvenience to retrieve her property. Costs of this application may be spoken to by making arrangements through the office of Supreme Court Scheduling.”

Decided by the BC Supreme Court on November 5, 2014.
Click here for the full text of the decision.