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.
Yes, I concur it’s a great/sensible decision. Kudos judge for not falling for the Managers “mewlings”. In the alternative; beware folks these provincial operations use “Desk” Orders to move forward with.
By using “Desk” orders called (and I’ve seen them) “Consent Order”( which I call coNNNsent order) “preservation order”, “COURT ORDER” (notice the bold font, it has a subtle purpose) “settlement order” are all an effort to prevaricate the situation.
Folks, read the “Act”, none, I repeat, none of these order are defined in the “Act”. Now what? simple, they are running a “color of law” scheme, and the lawyers are all shepherding the agenda. There may be instances where the “state” may have justifiable circumstances.
Let’s not forget these thieving forfeiture schemes are designed for one thing, fatten the “state” even if it means 95%of the haul comes from “low hanging fruit”.
I have not had 1 lawyer tell me not too worry. Instead, without fail, each promoted a “practical” narrative, which was, essentually, bend over the barrel, muffle our mouths, and when it’s over lick the black boot of the “state”. Hardly a practical solution, when you consider the ulternative being available, that being don’t bother to defend, seems simple and practical to me!
First and foremost, in order for this scheme to have any success it must employ one of the oldest tricks in the book… create FEAR! this “softens” the low hanging targets, add a little bluff and bluster, maybe a bit of “bulling” and now you just averted the arduous task of meeting the evidentiary “in~Rem” threshold. That’s the Agenda, that the M/O. Don’t worry, they won’t bark once they know you understand the “rig” job on all of us.
You’ve all been warned, right here is THE ANSWER to the fear.
Cheers!
Cont.
Here’s the deal this is how the consortium iworks. The director administers a bluff and bluster, pick and peck, tinker toy job while certain lawyers play paddy cakes. This outrageous, disputable legal community conduct is about to get exposed. I will be filing a $9 million civil action in 2015. I will se to it that the CRIMINAL Philly (punk boy) Tawtel will be going to jail for robbing of my gold, silver, shipping container and the destruction of my vehicle which th dirtbag admitted to doing.. Don’t Tawtel you F’n criminal you are going down