British Columbia (Director of Civil Forfeiture) v. Flynn, 2013 BCCA 91 – Statutory Interpretation Can Wait Until Trial

The Defendant, Mr. Flynn, had argued in a pre-trial motion that forfeiture of real property as an “instrument of crime” was contrary to common law principles of statutory interpretation. The Chambers judge was not satisfied that the Director’s claim disclosed no reasonable cause of action, and found that the proper place to consider the statutory interpretation argument was in the context of a trial:

[57] The arguments raised by the applicant here are novel. On reflection, I conclude that it is not plain and obvious on the record before me that the Director’s pleadings, insofar as they allege that the properties in question are instruments of unlawful activity, disclose no reasonable cause of action. I incline towards the Director’s counter-argument that forfeiture of a parcel of land within common law includes interests in it. It is an “immovable” piece of property and cannot literally be taken. As to the wording of the [Civil Forfeiture Act], while it is possible to interpret it as counsel for the applicant have tried to do, it is sufficiently internally coherent to support the plain and obvious meanings supplied by the legal context, including the implied “interests” of others in the named properties.

In considering Mr. Flynn’s appeal, the BC Court of Appeal upheld the Chambers judge’s discretion to defer the statutory interpretation issue:

[15] While it was open to the chambers judge to have carried out the comprehensive analysis of the submissions of the parties necessary to resolve the statutory interpretation issue raised by Mr. Flynn, he was not required to do so. Rather, it was open to him, in the exercise of his discretion, to leave that matter to be decided at trial. That being so, this Court should not interfere with his decision.

Although resolved against the Defendant on the grounds of judicial discretion, this case leaves unanswered some interesting questions about the interpretation and application of civil forfeiture statues across Canada.

Decided by the BC Court of Appeal on March 4, 2013.
Click here for the full text of the decision.

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