British Columbia (Director of Civil Forfeiture) v. Johnson, 2014 BCCA 268 – Trial Judge Retains Significant Discretion Over Charter Litigation Procedure

The Johnson case involved an application for leave to appeal from a summary trial decision, in which the Defendants’ Charter challenge was found to be inappropriate for summary determination. The Defendants sought to appeal the decision on the basis that the warrant to search the subject property “was unlawfully issued, unreasonably executed, and that all the evidence derived from the search was obtained in breach of the Johnsons’ Charter rights.”

Unlike Director of Civil Forfeitrue v. Lloydsmith, in which police lacked judicial authorization to enter the subject property, the Johnson Defendants took issue with the legality of the warrant. Because of the complexity of the issues involved and the absence of certain necessary evidence, Justice Abrioux concluded that summary determination of Charter issues was not appropriate.

The Court of Appeal denied leave to appeal, finding that the Justice Abrioux “was in the best position to determine whether he had sufficient evidence to fairly answer the questions before him.”

Johnson, when read alongside Lloydsmith, demonstrates that the course of Charter litigation in the civil forfeiture context is a discretionary and fact-specific exercise. While the law is clear that trial judges must consider Charter issues, different judges have taken varying approaches to how this is done, and the Court of Appeal will show considerable deference to these discretionary decisions.

Decided by the BC Court of Appeal on May 16, 2014.
Click here for the full text of the decision.

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