British Columbia (Director of Civil Forfeiture) v. Nguyen, 2014 BCCA 460 – “Interests of Justice” a Discretionary Inquiry

The Defendant, Vu Huy Nguyen, appealed an order for full forfeiture of his Vancouver residence. The property in question was used as a “sophisticated” marijuana grow operation and was therefore found to be an instrument of unlawful activity, although “there was insufficient evidence to prove on a balance of probabilities that the Property was initially acquired directly or indirectly as a result of unlawful activity.”

Nguyen argued that forfeiture was contrary to the interests of justice, and further that there is an onus upon the Director to prove that forfeiture is in the interests of justice. The BC Court of Appeal disagreed, finding that “there is a practical, evidentiary burden on the party opposing forfeiture” to demonstrate that forfeiture is not in the interests of justice. “If (the Defendant) sits mute, the trial judge may draw inferences that the evidence already before the court does not support the granting of such an order.”

In the circumstances of the Nguyen case, the Court of Appeal found that an order for full forfeiture was within the trial judge’s discretion, in view of “(i) the evidence of previous marihuana growing operations on the Property; (ii) the evidence that the Property was vacant from 2007 onwards; (iii) the unexplained large sums of money passing through Mr. Nguyen’s bank account around that time; (iv) (the trial judge’s) finding that Mr. Nguyen’s evidence was vague and inconsistent, and that he was unresponsive and evasive during his examination for discovery.” The appeal was therefore dismissed.

Decided by the BC Court of Appeal on November 24, 2014.
Click here for the full text of the decision.

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