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Director of Civil Forfeiture v. Lloydsmith

This case concerns a claim the Director of Civil Forfeiture (Director) made under British Columbia’s Civil Forfeiture Act based on alleged evidence of a marijuana grow operation.

In October 2007, the RCMP seized marijuana plants found at the home of Mr. Lloydsmith. The seizure came about following a search of Mr. Lloydsmith’s house earlier in the day conducted in response to a dropped 911 call. During the response to the 911 call, RCMP Constables forced entry into Mr. Lloydsmith’s home. Two RCMP Constables searched Mr. Lloydsmith’s house. During their search of the house, they observed what they believed was a marijuana grow operation in the basement. A warrant was sought and issued for a second search of the house and several hundred marijuana plants were seized. Mr. Lloydsmith was arrested.

In January 2008, the criminal investigation file against Mr. Lloydsmith was closed without charge. Sometime in 2010, the marijuana plants seized from his home were destroyed.

In February 2011, the RCMP sent the Director a referral letter about the marijuana plants seized from Mr. Lloydsmith’s house in 2007. Based on that referral, the Director began proceedings against Mr. Lloydsmith’s house in March 2011, alleging that the house is proceeds and an instrument of unlawful activity.

A judge of the BC Supreme Court found that there were several violations of the Charter of Rights and Freedoms in the manner of the search and seizure that took place at Mr. Lloydsmith’s house, and in the course of Mr. Lloydsmith’s arrest and detention. Mr. Lloydsmith argued that his Charter right to be free from unreasonable search or seizure has been violated. He sought to have the Charter issues, including Charter remedy if necessary, dealt with first, before a full discovery and trial process. The trial judge split the trial proceeding, allowing the Charter issues to be heard first. The trial judge also allowed for partial discovery to take place first.

The Director appealed the bifurcation of the trial and the ruling on the timing of discovery to the BC Court of Appeal. The case was heard on February 17-18, 2014.

The BCCLA was an intervener in this case. The BCCLA argued that section 24 remedies must be considered at the outset in this case to protect civil liberties and maintain the reputation of the justice system. The civil forfeiture process must not become a “back door” to evidence gathering where investigative misconduct has prevented access through the criminal justice system.

On Friday, February 21, 2014, the BC Court of Appeal released an oral judgment in this case. The reasons for the judgment can be found here >>

The Court of Appeal dismissed the appeal of the trial judge’s decision to bifurcate the trial. The Court found that there was no proper basis to interfere with the trial judge’s exercise of discretion. The Court also quashed the appeal of the timing of discovery, finding that it did not have jurisdiction to consider it. In making its judgment, the Court of Appeal noted several features of civil forfeiture proceedings that highlight the differences between these proceedings and civil proceedings more generally. The Court observed that these cases involve “very high stakes” for the individual and noted there is a “power difference between the parties.” Individuals face “jeopardy [arising] from evidence gained by police using their special authority but without the case ever having fed into the criminal proceedings stream.”

The BCCLA was represented by Sean Hern and Michelle Yung of Farris.

The BCCLA’s argument can be found here >>

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