Focus On

CIVIL PROCEDURE - Injunctions - Preservation of property

Wednesday, September 30, 2020 @ 6:05 AM  

Lexis Advance® Quicklaw®
Appeal by the Director from a decision refusing his application for an indeterminate interim preservation order. The Crown stayed criminal charges against the respondents. Under s. 490(9) of the Criminal Code, $2 million in cash seized was ordered returned to the respondents by Dec. 28. The Director commenced an action for an order that the money be forfeited to the government as proceeds or instruments of money laundering. The Director applied ex parte for a temporary interim preservation order for 30 days to allow the underlying matters in the civil forfeiture proceedings to be fully canvassed. The judge accepted that the urgency giving rise to the ex parte order was the looming 28 December date. He concluded that on balance there was sufficient difference between the criminal and forfeiture proceedings that he could make the order without purporting to frustrate the s. 490 order, given that, absent such an order, the money would likely be dissipated. The s. 490(9) order and interim preservation order overlapped in time. A request for an indefinite interim preservation order eventually went before the chambers judge. Citing failures by the Director’s counsel in accurately stating the law before the application judge, the chambers judge quashed the temporary order and refused the Director’s application for an indeterminate order. 

HELD: Appeal allowed. The indeterminate order was granted. The chambers judge erred in principle by adopting a too narrow view of the factors that should have acted in counterbalance to the perceived misconduct of the Director. The judge erred in principle by not addressing sufficiently, or in some cases at all, the purposes of the Civil Forfeiture Act and the nature and effect of the order requested. The Director’s statements did not mislead the court and were not material misstatements. While some of the Director’s submissions could have been clearer, this lack of clarity was insufficient to make the preservation order not in the interests of justice when weighed against the strength of the evidence, amount of money involved, and other aspects of the public interest in seeing the order issued here. The application judge had jurisdiction to issue a preservation order despite the existence of the s. 490 order, as the two regimes were legally distinct. The Director’s interest in preserving the cash property and purposes of the Act were factors of significance given the apparent strength of the evidence of unlawful activity and amount of money involved.

British Columbia (Director of Civil Forfeiture) v. Qin, [2020] B.C.J. No. 1341, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., H. Groberman and P.M. Willcock JJ.A., August 28, 2020. Digest No. TLD-September282020006