The Director of Civil Forfeiture alleged that the Defendant, Vu Huy Nguyen, had either participated in or allowed three illegal marijuana grow operations at his Vancouver home between 2001 and 2008. Because Mr. Nguyen had not been directly connected to any of the grow operations in question (which he asserted were established by his tenants without his cooperation), the Director sought the benefit of the lower standard of proof inherent in civil forfeiture proceedings.
Mr. Nguyen’s counsel attempted to forestall the forfeiture proceeding with a constitutional challenge based on the division of powers. Madam Justice Kloegman of the BC Supreme Court characterized the Defendant’s argument on this point as follows:
 Thus there is no doubt that the Act is valid legislation. The real complaint of the defendants lies in what their counsel referred to as the “operational conflict” between the Canada Criminal Code, which governs the procedure by which the evidence in forfeiture cases is collected, and the procedures, burdens and presumptions sanctioned in the Act. To the extent that provincial legislation conflicts with federal legislation, the doctrine of paramountcy requires the court to read down or ignore the provincial legislation to the extent necessary to remove the conflict (Canadian Western Bank v. Alberta, 2007 SCC 22 (CanLII), 2007 SCC 22).
Interestingly, the court based its rejection of the Defendant’s “operational conflict” argument on the fact that the same constitutional standard which applies to criminal proceedings also applies to civil forfeiture proceedings:
“ Unfortunately, the defendants’ submissions were premised on a misunderstanding of procedure in civil cases. Firstly, evidence in civil cases is subject to the same general common law rules of admissibility of evidence as in criminal cases. If evidence is obtained by a breach of Charter rights, it could be inadmissible under s. 24(2) of the Charter. In British Columbia (Director of Civil Forfeiture) v. Huynh, 2013 BCSC 980 (CanLII), 2013 BCSC 980, there were discrepancies in the information to obtain relied on by the police to obtain evidence of the marihuana grow operation on the residential premises subject to forfeiture. The defendants raised s. 8 of the Charter and submitted that the evidence should be excluded under s. 24(2) of the Charter. A voir dire was held at the commencement of trial. The trial judge applied the same law and cautionary approach to this evidence obtained under the Criminal Code as he would have done in a criminal trial.”
After hearing the evidence in Mr. Nguyen’s case, Madam Justice Kloegman was satisfied on a balance of probabilities that the Defendant had repeatedly either participated in or allowed marijuana grow operations on his property.
“ In my opinion, the only reasonable inference to draw from the evidence, or lack thereof, is that the defendant Nguyen likely knew, participated or acquiesced in the marihuana growing operations in 2007 and 2008. I am not saying that the evidence would be sufficient to prove a criminal offence under the Controlled Drugs and Substances Act, but in my opinion it is sufficient, on a balance of probabilities, to establish the defendant Nguyen’s involvement in the unlawful activity taking place on the Property.”
On this basis, the court ordered full forfeiture of Mr. Nguyen’s house.
Although Justice Kloegman’s factual findings are not unreasonable on the balance of probabilities, her disposition of the case might be indicative of a fundamental misunderstanding of the interplay between the Civil Forfeiture Act and the Charter.
Justice Kloegman acknowledges at paragraph 38 of her reasons for judgement that civil forfeiture proceedings are subject to the Charter, and that illegally obtained evidence might be excluded pursuant to Section 24(2) thereof. In paragraph 64 of her reasons, however, Kloegman casually discards the notion that a civil forfeiture defendant should be presumed innocent. If the Charter is to be applied consistently in the civil forfeiture context, it would seem that there is an open opportunity for a well-crafted constitutional challenge based on Section 11(d).
Decided by the BC Supreme Court on September 3, 2013.
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