The Defendants, David Johnson, Jennifer Johnson, and Anthony McCluskey, applied for summary dismissal of the Director of Civil Forfeiture’s action against a Surrey residence and $135,000 cash which had been discovered therein. The Director argued that a marijuana grow operation was located in the basement of the residence, and that both the cash and the residence itself were proceeds of unlawful activity.
The Defendants, who had already defeated criminal charges on the basis that they had not been tried within a reasonable time, now argued for summary dismissal on grounds that the evidence against them had been illegally obtained.
Justice Abrioux of the BC Supreme Court refused the Defendants’ application due to inadequacies in the evidentiary record.
“42 I conclude that I am unable, on the whole of the evidentiary record before me, to find the facts necessary to decide the issues of fact and law on these applications. I am also of the view that it would be unjust to decide the issues by way of a summary trial or summary judgment on the evidentiary record as it currently stands.”
Unlike the Defendants in previous cases such as Huynh and Lloydsmith, McCluskey and the Johnsons had not obtained an order for “bifurcation” of the action. Given that the decision in Lloydsmith was under appeal at the time of this decision, it seems that Justice Abrioux opted to ‘play it safe’ rather than making a decision on the basis of a potentially incomplete evidentiary record.
The McCluskey decision demonstrates the importance of establishing the case for bifurcation in advance of an application to strike a civil forfeiture action on constitutional grounds.
Decided by the BC Supreme Court on December 27, 2013.
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