Director of Civil Forfeiture (B.C.) v. Wolff, 2012 BCCA 473

• Judge: Newbury, Hall and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: October 25, 2012
• Jurisdiction: British Columbia
• Citations: 2012 BCCA 473;(2012), 330 B.C.A.C. 161 (CA)

Civil Forfeiture Dir. v. Wolff (2012), 330 B.C.A.C. 161 (CA);

    562 W.A.C. 161

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. NO.045

An Action Under the Civil Forfeiture Act in Rem Against 2003 Dodge Ram (VIN: 3D7LU38C33G783337)

Director of Civil Forfeiture (appellant/plaintiff) v. Frank Albert Wolff (respondent/defendant)

(CA39722; 2012 BCCA 473)

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

British Columbia Court of Appeal

Newbury, Hall and D. Smith, JJ.A.

November 22, 2012.

Summary:

In 2005, Wolff was stopped for speeding. He was driving a leased Dodge Ram truck. The police officer smelled burnt marijuana. He arrested Wolff for marijuana possession. In searching Wolff's vehicle incidental to the arrest, the officer found eight bags of marijuana (225 grams each), with an estimated street value of up to $9,600. He rearrested Wolff for possession of a controlled substance for the purposes of trafficking. The Civil Forfeiture Act came into force on April 20, 2006. In early June 2007, Wolff exercised his option to purchase the leased truck. He paid $26,177.58 to acquire title, which gave him approximately $52,000 total equity in the vehicle. On June 28, 2007, Wolff pleaded guilty to possession of marijuana for the purpose of trafficking. In December 2007, the Director of Civil Forfeiture commenced the present proceedings, pleading that the truck Wolff was driving at the time of the offence was an "instrument of unlawful activity" as defined by the Act, and seeking the forfeiture of all or part thereof to Her Majesty and an order permitting the Director to sell the truck by auction and pay the proceeds into the civil forfeiture account.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 774, held that the truck was an instrument of unlawful activity and Wolff was not an "uninvolved interest holder" within the meaning of s. 12 of the Act.

The British Columbia Supreme Court, in a decision reported at [2012] B.C.T.C. Uned. 100, held that the interests of justice would not be served by forfeiture of the whole or part of the truck. The Director appealed.

The British Columbia Court of Appeal dismissed the appeal.

Criminal Law - Topic 7062

Civil remedies for unlawful activity (Civil Remedies Act, Civil Forfeiture Act, etc.) - Remedies - Forfeiture - In 2005, Wolff was stopped for speeding - He was driving a leased Dodge Ram truck - The police officer smelled burnt marijuana - He arrested Wolff for marijuana possession - In searching Wolff's vehicle, the officer found eight bags of marijuana (225 grams each), with an estimated street value of up to $9,600 - He rearrested Wolff for possession of a controlled substance for the purposes of trafficking - The Civil Forfeiture Act came into force on April 20, 2006 - In early June 2007, Wolff exercised his option to purchase the leased truck - He paid $26,177.58 to acquire title, which gave him approximately $52,000 total equity in the vehicle - On June 28, 2007, Wolff pleaded guilty to possession of marijuana for the purpose of trafficking - In December 2007, the Director of Civil Forfeiture commenced the present proceedings, pleading that the truck Wolff was driving at the time of the offence was an "instrument of unlawful activity" as defined by the Act, and seeking the forfeiture of all or part thereof - The trial judge held that the interests of justice would not be served by forfeiture of the whole or part of the truck - The Director appealed - The British Columbia Court of Appeal dismissed the appeal.

Cases Noticed:

Chatterjee v. Ontario (Attorney General) - see Ontario (Attorney General) v. Chatterjee.

Ontario (Attorney General) v. Chatterjee, [2009] 1 S.C.R. 624; 387 N.R. 206; 249 O.A.C. 355; 2009 SCC 19, refd to. [para. 15].

Director of Civil Forfeiture (B.C.) v. Rai, [2011] B.C.T.C. Uned. 186; 2011 BCSC 186, refd to. [para. 18].

Director of Civil Forfeiture (B.C.) v. Angel Acres Recreation and Festival Property Ltd. et al., [2009] B.C.T.C. Uned. 322; 2009 BCSC 322, affd. (2010), 296 B.C.A.C. 230; 503 W.A.C. 230; 2010 BCCA 539, refd to. [para. 18].

Cook v. Lewis, [1951] S.C.R. 830, refd to. [para. 23].

Dunlop Pneumatic Tyre Company v. New Garage and Motor Company, [1915] A.C. 79 (H.L.), refd to. [para. 24].

Webster v. Bosanquet, [1912] A.C. 394 (P.C.), refd to. [para. 24].

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; 2009 SCC 23, refd to. [para. 35].

Saskatchewan River Bungalows Ltd. and Fikowski v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490; 168 N.R. 381; 155 A.R. 321; 73 W.A.C. 321, refd to. [para. 36].

Ontario (Attorney General) v. 1140 Aubin Road, Windsor et al. (2011), 279 O.A.C. 268; 333 D.L.R.(4th) 326; 2011 ONCA 363, refd to. [para. 37].

Director Under The Seizure of Criminal Property Act v. Mihalyko et al. (2012), 393 Sask.R. 117; 546 W.A.C. 117; 2012 SKCA 44, refd to. [para. 39].

Statutes Noticed:

Civil Forfeiture Act, S.B.C. 2005, c. C-29, sect. 6(1) [para. 2].

Authors and Works Noticed:

British Columbia, Hansard, Official Reports of Debates of the Legislative Assembly, vol. 2 (October 17, 2006), p. 764 [para. 16].

Hansard (B.C.) - see British Columbia, Hansard, Debates of the Legislative Assembly.

McGhee, John, and Snell, E.H.T., Snell's Equity (31st Ed. 2005), ྷ11-05 [para. 36].

Counsel:

J.G. Morley and C. Bargen, for the appellant;

D.H. Christie, for the respondent.

This appeal was heard at Vancouver, B.C., on October 25, 2012, by Newbury, Hall and D. Smith, JJ.A., of the British Columbia Court of Appeal. Newbury, J.A., delivered the following decision for the court on November 22, 2012.