Director of Civil Forfeiture v. Lloydsmith, 2014 BCCA 72 – Pre-Trial Charter Applications Allowable in Civil Forfeiture Context

In a landmark decision which will no doubt set the procedural framework for many civil forfeiture cases to come, the BC Court of Appeal upheld the “bifurcation” decision of Mr. Justice Leask, endorsing the idea that constitutional issues involving the exclusion of evidence may be heard in advance of a trial on the merits of a given case.

The Court of Appeal in Lloydsmith recognized the “power difference” between the Director of Civil Forfeiture and individuals defending forfeiture actions:

“Having to maintain a costly defence is a risk every person in the community is vulnerable to. There is, however, an extra element in the civil forfeiture cases, and that is the jeopardy faced by a civilian, at risk of losing a great deal and at risk of being labelled for criminal behaviour. This jeopardy arises from evidence gained by police using their special authority but without the case ever having fed into the criminal proceedings stream, with the defendant now caught in a proceeding that requires presentation for cross-examination at an examination for discovery. All of this is allowed by the legislation. Given these very high stakes for the individual and the power difference between the parties, it is not surprising that there has been an assortment of applications seeking to challenge the legitimacy of the evidence gathering actions of the police, seeking to postpone discovery until that legitimacy has been determined, and seeking avenues for just redress where such activities have been found to be in violation of a person’s Charter rights.”

On this basis, the Court found that it is within the jurisdiction of the trial judge to bifurcate the proceedings and hold the equivalent of a criminal voir dire (before trial) in order to determine whether Charter violations have occurred and whether the evidence obtained is admissible.

Although just one step along a lengthy and frustrating road of litigation for Mr. Lloydsmith, this decision sets a valuable precedent for civil forfeiture defendants generally, making it possible to raise discreet issues of admissibility of evidence in advance of trial, without unnecessarily undergoing the enormous cost of a trial against the immense power and limitless resources of the Civil Forfeiture Office.

Decided by the BC Court of Appeal on February 21, 2014.
Click here for the full text of the decision.

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