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.
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