Director of Civil Forfeiture (B.C.) v. Crowley, 2013 BCCA 89

• Judge: Low, Chiasson and Bennett, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: November 23, 2012
• Jurisdiction: British Columbia
• Citations: 2013 BCCA 89;(2013), 334 B.C.A.C. 182 (CA)

Civil Forfeiture Dir. v. Crowley (2013), 334 B.C.A.C. 182 (CA);

    572 W.A.C. 182

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. MR.012

Civil Forfeiture Action in Rem Against

Lands and Structures situated at 8308 70th Avenue, Osoyoos, BC, with a Legal Description of Parcel Identifier 010-523-405 Lot 11 Block 778 District Lot 2450S Similkameen Division Yale District Plan 3085 and the Fruits or the Proceeds therefrom (the "Property") and $56,089.25 in Canadian Currency and $908.00 in United States Currency and the Fruits or the Proceeds therefrom (the "Money")

Director of Civil Forfeiture (respondent/plaintiff) v. The Owners and all Others Interested in the Property and/or the Money, in Particular Barry Patrick Crowley (appellant/defendant)

(CA039737; 2013 BCCA 89)

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

British Columbia Court of Appeal

Low, Chiasson and Bennett, JJ.A.

February 27, 2013.

Summary:

Crowley pled guilty to possession of a controlled substance and possession of a loaded, prohibited firearm. A portion of the money found during a search of Crowley's home went unclaimed by the federal authorities. The B.C. Director of Civil Forfeiture brought a civil forfeiture action against Crowley. As a result of Crowley's conduct in litigation, the Director applied to strike his response. Grauer, J., granted the application. The Director applied for forfeiture orders. Rogers, J., refused the defendant's request to participate in the hearing, and ordered forfeiture of the money and Crowley's home. Crowley appealed the orders of Grauer and Rogers, JJ., and applied for an extension of time to appeal the former.

The British Columbia Court of Appeal dismissed the application to extend the time to appeal the order of Grauer, J., who did not err in exercising his discretion to strike the response to civil claim. The court allowed the appeal of the order of Rogers, J., who erred in refusing to hear Crowley and in providing no reasons for the forfeiture orders. The matter was remitted to the Supreme Court for a re-hearing of the Director's application for default judgment.

Criminal Law - Topic 7002

Civil remedies for unlawful activity (Civil Remedies Act) - General - Legislation - The British Columbia Court of Appeal set out the objectives of the Civil Forfeiture Act, and stated that "[t]hese salutary objectives must be placed into the context of civil proceedings that are somewhat unusual: the exercise of state power to confiscate the property of a citizen in a civil action based on unlawful activity that is an offence under legislation. Protection from the arbitrary exercise of state power is rooted in our legal tradition. Its exercise, albeit for good policy reasons, must recognize the procedural rights of the citizen. This case illustrates the point." - See paragraphs 30 and 31.

Criminal Law - Topic 7002

Civil remedies for unlawful activity (Civil Remedies Act) - General - Legislation - The British Columbia Court of Appeal considered the two parts to s. 6 of the province's Civil Forfeiture Act - See paragraphs 56 to 60.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - The Director of Civil Forfeiture (B.C.) applied to strike the defendant's response to a civil forfeiture action as a result of the defendant's conduct in litigation - The defendant did not attend the proceedings - The chambers judge struck the defendant's response - The British Columbia Court of Appeal denied the defendant's request to extend the time to appeal - There was no evidence of a bona fide intention to appeal within the appeal period - The chambers judge was aware that striking pleadings was a draconian remedy and that generally a party was given a "second chance" - It was within the judge's discretion to consider the relevant factors in the context of the history of the case, which included: the defendant's failure to provide appropriate discovery of documents; failure to comply with a court order; the cancellation of an examination for discovery; non-attendance at another examination for discovery; and the loss of a scheduled trial date - The chambers judge was alive to the consequences of his order - Considering the proceedings overall, it was not in the interests of justice to extend the time to appeal - See paragraphs 19 to 29.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - The Director of Civil Forfeiture (B.C.) applied for orders of forfeiture under rules 3-8(9) and (10) of the Civil Rules because a chambers judge ordered that the matter proceed as if the defendant had not filed a response to civil claim - The British Columbia Court of Appeal stated that "[i]t may be that these rules are applicable", but agreed with the decisions that held that a desk order (rule 8-4) was not available in forfeiture proceedings - The proceeding under rules 3-8(9) and (10) was akin to an assessment of damages - Consideration of the value of the property was a relevant factor (s. 6(1) of the Civil Forfeiture Act) - A combination of rules 3-8(5) and (12) might be the more appropriate process - In any event, an evidentiary hearing was required - "The difficulty is that the nature of a forfeiture claim under the Act does not fit within Rule 3-8 without some judicial interpretation of both the Act and the Civil Rules read together. The Director should have a clear procedural path to judgment and a defaulting defendant should at least retain the same rights as other litigants who are faced with claims that require judicial assessment." - See paragraphs 35 to 37.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - As a result of the defendant's conduct in litigation, a chambers judge struck the defendant's response to the civil forfeiture action - The Director of Civil Forfeiture (B.C.) applied for forfeiture orders - The application judge did not address the interests of justice or relief from forfeiture either in his rulings on the participation of the defendant or in granting the forfeiture orders - The British Columbia Court of Appeal held that the application judge erred - "In my view, whenever the court is asked to consider forfeiture pursuant to s. 5 of the Civil Forfeiture Act, s. 6 must be taken into account; the judge must consider whether forfeiture clearly is not in the interests of justice." - See paragraphs 56 to 63.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - A chambers judge struck the defendant's response to the civil forfeiture action - The case proceeded on the basis that the defendant lost his status as a party of record - The Director of Civil Forfeiture (B.C.) applied for forfeiture orders - The defendant, whose money and home were the subjects of the application, was given notice of the proceeding as a "person who may be affected" - The application judge refused to hear the defendant and granted the forfeiture orders - The British Columbia Court of Appeal held that the application judge erred by proceeding on the basis that he did not have discretion to permit the defendant to participate - The defendant was entitled to notice of the Director's application and to be heard on all aspects of the application "with the caveat that he could not controvert the facts alleged in the notice of civil claim" - In the court's view, "the discretion retained by a court to allow the participation of a defendant with no response and who is not a party of record carries forward under the present Supreme Court Civil Rules." - See paragraphs 64 to 79.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - The British Columbia Court of Appeal stated that "1. when taking the property of a individual, for good policy reasons, it is necessary to ensure that the power of the state is exercised recognizing the procedural rights of the individual; 2. when granting an order of forfeiture under s. 5 of the Civil Forfeiture Act, a judge must consider whether forfeiture, in whole or in part, is clearly not in the interests of justice pursuant to s. 6 of the Act; 3. striking a defendant's response to civil claim makes the defendant no longer a party of record entitled to notice of further steps in the proceeding; 4. a person whose home is the subject of an application for forfeiture under the Act is a person affected by the application and is entitled to notice under Rule 8-1(7); 5. a judge has discretion whether to permit a person to participate in forfeiture proceedings notwithstanding his or her response to civil claim has been struck or no material has been filed in response to the application for forfeiture." - See paragraph 80.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - The Director of Civil Forfeiture (B.C.) applied for default judgment - The application judge refused to hear the defendant and granted the forfeiture orders - The British Columbia Court of Appeal agreed with the defendant/appellant that the absence of reasons for judgment deprived him of the ability to know on what basis his home was forfeited and "makes appellate review extremely difficult, if not impossible" - Section 5 of the Civil Forfeiture Act contained two bases on which forfeiture might be ordered - The absence of reasons was "significant" - Whether the home was the "proceeds of unlawful activity" or "an instrument of unlawful activity" could be relevant to considering whether forfeiture, in whole or in part, clearly was not in the interests of justice pursuant to s. 6(1) of the Act - See paragraphs 83 and 84.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - [See first Criminal Law - Topic 7062 ].

Cases Noticed:

Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R.(2d) 256 (C.A.), refd to. [para. 20].

Kedia International Inc. et al. v. Royal Bank of Canada et al., [2008] B.C.A.C. Uned. 94; 2008 BCCA 305, refd to. [para. 20].

Rapton v. Superintendent of Motor Vehicles (B.C.) (2011), 299 B.C.A.C. 278; 508 W.A.C. 278; 2011 BCCA 71, refd to. [para. 20].

Homer Estate et al. v. Eurocopter S.A. et al. (2003), 180 B.C.A.C. 316; 297 W.A.C. 316; 2003 BCCA 229, refd to. [para. 22].

Muscroft v. Eurocopter S.A. - see Homer Estate v. Eurocopter S.A. et al.

Director of Civil Forfeiture (B.C.) v. Zacchigna et al., [2011] B.C.T.C. Uned. 989; 2011 BCSC 989 (Master), refd to. [para. 22].

Schwarzinger et al. v. Branwell et al., [2011] B.C.T.C. Uned. 304; 2011 BCSC 304, refd to. [para. 22].

Director of Civil Forfeiture (B.C.) v. Wolff (2012), 330 B.C.A.C. 161; 562 W.A.C. 161; 2012 BCCA 473, refd to. [para. 30].

Director of Civil Forfeiture (B.C.) v. Kingdon, [2011] B.C.T.C. Uned. 1501; 2011 BCSC 1501, agreed with [para. 43].

Director of Civil Forfeiture (B.C.) v. Rai, [2011] B.C.T.C. Uned. 186; 2011 BCSC 186, refd to. [para. 45].

R. v. Craig (J.A.), [2009] 1 S.C.R. 762; 388 N.R. 254; 271 B.C.A.C. 1; 458 W.A.C. 1, refd to. [para. 62].

Director of Civil Forfeiture v. Ngo et al., [2012] B.C.T.C. Uned. 1009; 2012 BCSC 1009, refd to. [para. 63].

Ngo v. South Pacific Development Ltd. et al., [2005] B.C.T.C. Uned. 729; 2005 BCSC 1632, affd. (2006), 224 B.C.A.C. 293; 370 W.A.C. 293; 2006 BCCA 182, refd to. [para. 76].

Vancouver (City) v. Maurice et al. (2005), 207 B.C.A.C. 233; 341 W.A.C. 233; 2005 BCCA 37, refd to. [para. 78].

Statutes Noticed:

Civil Forfeiture Act, S.B.C. 2005, c. 29, sect. 5, sect. 6 [para. 51].

Rules of Court (B.C.) - see Supreme Court Civil Rules (B.C.).

Supreme Court Civil Rules (B.C.), Reg. 168/2009, rule 3-8(9), rule 3-8(10) [para. 35]; rule 8-1(7) [para. 5].

Supreme Court Rules (B.C.) - see Supreme Court Civil Rules.

Counsel:

G. DelBigio, Q.C., for the appellant;

P.D. Ameerali and C.R. Bargen, for the respondent.

This application and appeal were heard at Vancouver, British Columbia, on November 23, 2012, before Low, Chiasson and Bennett, JJ.A., of the British Columbia Court of Appeal. In reasons written by Chiasson, J.A., the Court delivered the following judgment, dated February 27, 2013.