Earlier this year, I blogged about the civil forfeiture case of B.C. (Director of Civil Forfeiture) v. Wolff. That appellate decision set guidelines for the trial courts on what and how to consider the “interest of justice” when faced with a forfeiture claim. It confirmed the “dominant principles” of proportionality and fairness in weighing whether to order forfeiture or not.
The Court of Appeal recently weighed in again on the subject of civil forfeiture, though on slightly different grounds. As in Wolff, the Court constrained the strident position of the Director of Civil Forfeiture. In this case, the Director sought forfeiture of both real property and money belonging to Mr. Crowley. Mr. Crowley had plead guilty to various offences after being found in possession of drugs, a prohibited firearm and nearly $100,000 in cash. Two years later, the Director commenced a forfeiture claim against Mr. Crowley’s home and the cash, asserting they were both the proceeds of crime. For justifiable reasons based on Mr. Crowley’s conduct in this civil claim, the court struck out his defence, meaning he was no longer technically a party to the proceeding. As a result, the Director moved for a forfeiture order on the grounds that the claim was undefended. Mr. Crowley was given notice of the application, but only as a “person who may be affected by a forfeiture order” as it was for the house he was living in at the time.
The appeal turned on the wording of section 6(1) of the Civil Forfeiture Act which provides the courts with authority to order forfeiture unless it “is clearly not in the interests of justice”. The trial judge had ordered forfeiture without allowing Mr. Crowley to address the appropriateness of that step (as he was no longer a party) or considering whether the forfeiture was “in the interests of justice”. The Court of Appeal disagreed with both these points.
The Court of Appeal ruled that section 6(1) imposes a positive obligation on courts to consider the interests of justice in each forfeiture case, even where the case is undefended. Further, there is no legal onus on a defendant to adduce any evidence before a court must consider the interests of justice. The Court of Appeal also held that Mr. Crowley had a right to be heard on all aspects of the forfeiture application, with the caveat that, as his defence had been struck, he could not controvert the facts alleged in the Notice of Civil Claim. However, he could adduce other evidence relevant to the interests of justice and make submissions. By extension, this right of audience is available to any person claiming an interest in property subject to the forfeiture claim.
In other words, it was a mistake not to let Mr. Crowley argue against the forfeiture of his house (and money). It was also a mistake not to let Mr. Crowley introduce evidence relevant to the interests of justice consideration. While Mr. Crowley was not obliged to do so, the Court of Appeal noted that there may be an:
“evidentiary or practical burden on the defendant to present evidence with respect to the interests of justice. . . . Much of the relevant evidence that the court might be asked to consider on the question of the interests of justice is likely to be solely in the knowledge or control of the defendant. Failure to adduce such evidence may be at his or her peril.”
If you are facing a forfeiture claim, this decision confirms your ability to oppose, regardless of the underlying facts. It also establishes your right, whatever your interest in the subject property, to address the court on the fairness of the Director’s claim and to introduce evidence that may assist in demonstrating that forfeiture “is clearly not in the interests of justice”. In other words, don’t give up in the face of the Director’s claim; forfeiture is by no means a certainty.