British Columbia (Director of Civil Forfeiture) v. Huynh, 2013 BCSC 980 – Civil Forfeiture Engages “Exactly the Same Charter Principles” as Criminal Law

The Huynh case involved a civil forfeiture action based on a critically-flawed search warrant, which had been obtained on the basis of inaccurate and erroneous information which failed to disclose reasonable grounds that unlawful activity had occurred. The Defendant had previously won the right to a bifurcated trial, with Charter issues to be determined in advance of examination for discovery or other inquiry regarding the alleged marijuana grow operation which formed the basis for the Director’s claim.

Criminal charges had already been stayed against the Defendant, presumably on the grounds that all of the evidence in question had been illegally obtained.

The Director of Civil Forfeiture acknowledged that “the ITO contains errors which unless corrected mean that the ITO does not disclose reasonable grounds,” but argued that he should be permitted to introduce additional “amplification evidence” to demonstrate the grounds which police had for the search in question. The court found that the admission of such further evidence would be inappropriate in the civil context, just as it would be inappropriate in the criminal context:

“[31]        I do not agree that in the context of this case, the Director should be in any better position than the Crown would be in a criminal case.

[32]        Firstly, in a criminal case the burden of proof of breach of the Charter lies with the accused on a balance of probabilities.  The same applies here; therefore the context is not so very different.

[33]        Secondly, and I believe more importantly, in these proceedings the Director seeks to rely upon evidence gathered pursuant to the machinery of the criminal law and the powers of the state to prove the Director’s case.  Therefore, exactly the same Charter principles apply to the manner in which that evidence is obtained as would be applicable in a criminal case.  It should also be borne in mind that the Director seeks to obtain a remedy which would be very onerous to the defendant.”

This case confirms that Charter considerations must be given full consideration in BC civil forfeiture cases, and that the Director is precluded from bringing in his own evidence to paper over the errors of police in the first instance. In short, the Director is subject to the same level of Charter scrutiny in a civil forfeiture action as the Crown would be in a criminal action.

Decided by the BC Supreme Court on January 23, 2013.
Click here for the full text of the decision.

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