In the Fischer case, the Director of Civil Forfeiture sought an interim preservation order, pending a trial on the question of forfeiture of a home in Campbell River. The Defendant, Fischer, was the owner and resident of the home and had been caught numerous times in possession of cocaine and other drugs for the purpose of trafficking.
The Director asserted that the home had been used to facilitate the trafficking, although Fischer argued that the home was incidental to his trafficking activity and had been acquired with lawfully acquired funds.
The Defendant did not dispute the Director’s request for an interim preservation order, but argued that he should first be allowed to mortgage the home in order to fund his legal defence, and that the mortgage should take priority over any claim by the Director.
Mr. Justice Punnett of the BC Supreme Court found that although the Director had tendered no evidence that the property was purchased with the “proceeds of crime,” there was ample evidence that it had been used as an “instrument of crime,” and therefore there was a serious question to be tried under the Civil Forfeiture Act.
Given this state of affairs, and the possibility that full forfeiture of the property would be ordered at some point in the future, Just Punnett found that allowing a new first mortgage to take priority over the Director’s claim would defeat the purpose of the interim preservation order itself, namely to protect the Director’s interest in the property:
“While the defendant may wish to use the Property to secure legal counsel, that is at odds with the purposes of the Act. To grant such an exemption would allow the defendant to deplete the asset that is the subject of the litigation. The clear intent of s. 8 is to ensure that defendants cannot dispose of or otherwise affect the subject property so that its value is diminished and the forfeiture action becomes moot or not viable. Thus it would not be in the interests of justice to allow a mortgage in priority to the preservation order.”
This interpretation of the law, while clearly logical from the Director’s point of view, clearly serves the dual purpose of hampering the ability of many defendants to mount an adequate legal defence against civil forfeiture proceedings.
Decided by the BC Supreme Court on April 27, 2010.
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