Commercial Litigation and Dispute Resolution Blog

Regrettably, this appears to be a case where the office of the Director of Civil Forfeiture has taken zealous measures outside the proper bounds of its home statute with the unfortunate effect of depriving a citizen of lawful possession and use of her property, putting that citizen to what I suspect is considerable expense and inconvenience to retrieve her property.

Those are the closing words to a recent judgment in which the court dismissed an application by the Director of Civil Forfeiture (the “DCF”) to seize a pickup truck.  These comments are a clear reflection of the court’s displeasure at the DCF’s tactics.

In this particular case, the DCF seized a pickup owned by Roberta Allwright.  Following that seizure, the DCF applied for an interim preservation order allowing the continued detention of the truck, depriving Ms. Allwright of its use, until the substantive issues in the claim were resolved.  If the DCF succeeded, Ms. Allwright would have lost the use of her vehicle for a year or more until the trial.  The DCF’s likely motive was to put practical and economic pressure on Ms. Allwright in an effort to extract from her an advantageous “settlement” (i.e., money) to bring the matter to an end sooner and allow her to retrieve her vehicle.

The pickup was originally impounded by the police on July 1, 2014 when Ms. Allwright’s common law husband was arrested for driving it while impaired.  He had a number of prior impaired and driving while disqualified convictions (though none since 2007).  On July 25, 2014, the DCF commenced a claim seeking forfeiture of the pickup, alleging it was “an instrument of unlawful activity.”  The DCF commenced the claim in Victoria, even though Ms. Allwright and her partner live in Kelowna and the pickup was seized by the police there.  The practical effect of this (a common tactic by the DCF) is to increase the expense and effort of defending a claim for people like Ms. Allwright.

The DCF also obtained a without notice order granting possession of the pickup.  The DCF then sought an “interim preservation order” allowing him to continue to hold the pickup and prevent Ms. Allwright from using it until at least the trial.  Not surprisingly, the CFA is favourably drafted and, on such applications, the DCF needs only to show that “there is a serious question to be tried.”  Earlier case law establishes that the threshold for this test is low.  The DCF needs only to establish its case is not “vexatious, nor frivolous.”  This test is so minimal a judge must grant the order “even if of the opinion that the [DCF] is unlikely to succeed at trial.”

In this particular case, the issue was whether the pick-up was an “instrument of unlawful activity,” a defined term in the CFA meaning, among other things, that it either had been or in future would be used in an unlawful activity where serious bodily injury was likely.

It would have been easy for the court to reason that the pickup, driven by an impaired person, may well have been involved in an accident that might have been serious or to find that Ms. Allwright’s partner, given his history, may do so again in the future.  However, the court did not make these findings.  Instead, the court noted that “the vast majority of individuals who operate a vehicle while impaired do not in fact cause serious bodily harm to anyone.”  Based on this, it could not seriously be contended that the manner of use of the pickup on July 1, 2014 was likely to cause serious bodily harm.  Similarly, the court found that given the absence of any driving offences in the last seven years, Ms. Allwright’s partner was not likely to use the pickup in future to engage in unlawful activity.  This reasoning led to the dismissal of the DCF’s application, the release of the pickup to Ms. Allwright and the Court’s comments that opened this blog post.

The bottom line is that the courts are willing to look very critically at any application for an interim preservation order by the DCF.  It is worth opposing such applications and seeking to deprive the DCF of the tactical advantage he gains in depriving individuals of their assets before the appropriateness of a forfeiture order has been determined.