British Columbia (Director of Civil Forfeiture) v. Kingdon, 2011 BCSC 1501

In Kingdon, the Director of Civil Forfeiture applied for default judgement against three Defendants, Kingdon, Yu, and Shulte, on the grounds that they had not filed Responses objecting to the Director’s respective Notices of Civil Claim.

The Kingdon application involved a property in Surrey, BC, the Yu application involved a vehicle, and the Shulte application involved a vehicle and $2,140 in cash. The three applications for default judgement were consolidated into a single BC Supreme Court decision because all three involved similar issues.

Mr. Justice Davies of the BC Supreme Court found that in order to achieve forfeiture of the items in question, the Director would need to appear before a BC Supreme Court Justice and plead the merits of their case in Chambers. He determined that the “desk order” default judgement process under Rule 3-8(10) of the Supreme Court Civil Rules could not be used in cases under Civil Forfeiture Act.

Justice Davies’ reasoning for this was that an application for default judgement under rule 3-8(10) “must be supported by an affidavit setting out the facts that verify the claim and stating that the person swearing the affidavit knows of no fact that would constitute a defence to the claim except as to amount.” The Director had satisfied this obligation in all three cases at issue, which would theoretically be enough to establish liability in a civil case where no response had been filed.

In a civil forfeiture case, however, Justice Davies found that establishing liability “except as to amount” is not sufficient to obtain an order for forfeiture, without at least some consideration of the liability in question in relation to the value of the items being forfeit. To quote paragraph 75 of his decision:

“…the fundamental problem with the orders sought by the Director in each of these three applications is that in the face of, and contrary to, the sworn acknowledgment that there could be “defences as to amount” the Director seeks final orders forfeiting to the Director all of the interest of the defendants in their respective properties. Accordingly, the orders sought go beyond that which is supported by the affidavit evidence.”

Justice Davies went on to note that Section 6(1) of the Civil Forfeiture Act provided for relief from forfeiture that is “clearly not in the interests of justice.” The dominant considerations for establishing the “interests of justice” are proportionality and fairness, which is why the court must always weigh the extent of the liability in question against the value of the items being forfeit, in order to determine whether the forfeiture being sought would be manifestly disproportionate or unfair.

Unfortunately, the government of British Columbia has already done an end run around the court’s thoughtful and rational decision in Kingdon. The Province is now using a process known as “administrative forfeiture,” which places the onus on the owner of the property being forfeit to challenge the proposed forfeiture in court. If they fail to do so, no Notice of Civil Claim is even filed by the Director, and the courts have no opportunity to consider the merits of the claim.

Decided by the Supreme Court of British Columbia on November 7, 2011.
Click here for the full text of the decision.