Director of Civil Forfeiture (B.C.) v. Nguyen, 2014 BCCA 460

• Judge: Smith, Garson and Stromberg-Stein, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 24, 2014
• Jurisdiction: British Columbia
• Citations: 2014 BCCA 460;(2014), 364 B.C.A.C. 32 (CA)

Civil Forfeiture Dir. v. Nguyen (2014), 364 B.C.A.C. 32 (CA);

    625 W.A.C. 32

MLB headnote and full text

Temp. Cite: [2014] B.C.A.C. TBEd. NO.043

Civil Forfeiture in Rem against: The land and structures situated at 729 East 58th Avenue, Vancouver, British Columbia, and having a legal description of Parcel Identifier 013-696-521 Lot 11 Block 9 District Lot 658 Plan 2225 (the "Property")

The Director of Civil Forfeiture (respondent/plaintiff) v. Vu Huy Nguyen (appellant/defendant)

(CA041233; 2014 BCCA 460)

Indexed As: Director of Civil Forfeiture (B.C.) v. Nguyen

British Columbia Court of Appeal

Smith, Garson and Stromberg-Stein, JJ.A.

November 24, 2014.

Summary:

The Director of Civil Forfeiture ordered the forfeiture of the sales proceeds of a home owned by Nguyen after the third time it was discovered to house a marijuana grow operation. Nguyen denied knowledge of the operation, claiming that he rented the property to a third party. Nguyen claimed to be an uninvolved interest holder under s. 12 of the Civil Forfeiture Act. Alternatively, he sought relief from forfeiture under s. 6(1) of the Act, arguing that forfeiture would not be in the interests of justice.

The British Columbia Supreme Court, in a judgment reported [2013] B.C.T.C. Uned. 1610, ordered forfeiture of the full sales proceeds. The property was used for unlawful activity. Applying the amended s. 6(1) retrospectively, Nguyen failed to discharge the evidentiary burden of establishing that forfeiture would not be "clearly" in the interests of justice. Nguyen appealed, arguing that the trial judge erred in applying the amended s. 6(1) retrospectively (illegal activity in question occurred prior to "clearly" being added by the amendment to s. 6(1)), erred in stating the onus of proof and/or misapplied s. 6(1) to the facts of the case.

The British Columbia Court of Appeal dismissed the appeal. The trial judge did not err in applying the amended version of s. 6(1) retrospectively to require Nguyen to discharge the practical burden of establishing on a balance of probabilities that it would "clearly" not be in the interests of justice to grant relief from forfeiture. The trial judge neither misstated nor misapplied s. 6(1). There was no palpable error or application of a wrong principle respecting the fact findings and the trial judge's exercise of her discretion was not clearly wrong and would not lead to a serious injustice.

Criminal Law - Topic 7062

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Forfeiture - See paragraphs 19 to 37.

Criminal Law - Topic 7065

Civil remedies for unlawful activity - Civil Remedies Act, Civil Forfeiture Act, etc. - Remedies - Relief from forfeiture (incl. burden of proof) - See paragraphs 19 to 37.

Statutes - Topic 6703

Operation and effect - Commencement, duration and repeal - Retrospective and retroactive enactments - What constitutes retrospective or retroactive operation - See paragraphs 19 to 24.

Cases Noticed:

Director of Civil Forfeiture (B.C.) v. Rai, [2011] B.C.T.C. Uned. 186; 2011 BCSC 186, refd to. [para. 21].

Director of Civil Forfeiture (B.C.) v. Angel Acres Recreation and Festival Property Ltd. et al., [2007] B.C.T.C. Uned. G18; 2007 BCSC 1648, refd to. [para. 22].

Director of Civil Forfeiture (B.C.) v. Crowley (2013), 334 B.C.A.C. 182; 572 W.A.C. 182; 2013 BCCA 89, refd to. [para. 26].

Ontario (Attorney General) v. 1140 Aubin Road, Windsor et al. (2011), 279 O.A.C. 268; 2011 ONCA 363, refd to. [para. 26].

Statutes Noticed:

Civil Forfeiture Act, S.B.C. 2005, c. 29, sect. 6(1) [para. 19].

Counsel:

K. Bastow, for the appellant;

D. Ryneveld, Q.C., and C. Hoy, for the respondent.

This appeal was heard on October 3, 2014, at Vancouver, B.C., before Smith, Garson and Stromberg-Stein, JJ.A., of the British Columbia Court of Appeal.

On November 24, 2014, Stromberg-Stein, J.A., delivered the following judgment for the Court of Appeal.