IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

British Columbia (Director of Civil Forfeiture) v. Wolff,

 

2012 BCSC 100

Date: 20120124

Docket: 07-5007

Registry: Victoria

An action under the Civil Forfeiture Act in Rem Against:

2003 Dodge Ram (VIN: 3D7LU38C33G783337)

Between:

Director of Civil Forfeiture

Plaintiff

And:

Frank Wolff

Defendant

Before: The Honourable Mr. Justice Metzger

Reasons for Judgment

Counsel for the Plaintiff:

J.G. Morley and C.R. Bargen

Counsel for the Defendant:

D.H. Christie

Place and Date of Trial:

Victoria, B.C.

January 24-28, 2011

Place and Date of Judgment:

Victoria, B.C.

January 24, 2012


 

Nature of the proceeding

[1]             This is an in rem action by the Director of Civil Forfeiture (the “Director”) under the Civil Forfeiture Act, S.B.C. 2005, c. 29 (CFA or the Act), against a 2003 Dodge Ram (VIN 3D7LU38C33G783337) (the “Truck”). Mr. Wolff is the lawful owner of the Truck and, as such, is a defendant in these proceedings.

[2]             The Director alleges in the Further Amended Statement of Claim that Mr. Wolff used the Truck as an instrument of unlawful activity as defined in the CFA and that the Truck is, accordingly, subject to forfeiture. Section 5(2) of the CFA requires that any property, including personal property, found to be an “instrument of unlawful activity” must be forfeited to the provincial government subject to ss. 6 and 13(1) of the Act. Section 6 permits the court, if it “is clearly not in the interests of justice” to grant forfeiture, to refuse to issue the order, or to limit the application of, or put conditions on, any order granted. Section 13(1) of the Act applies to protection orders with regard to property that is an instrument of unlawful activity and, more specifically, relates to the need for the court to protect any interest in the property held by an “uninvolved interest holder” as defined in the Act.

[3]             Due to time constraints, the trial proceeded in two phases. At the conclusion of the first phase, I determined that the Truck is an instrument of unlawful activity and further, that Mr. Wolff is not an uninvolved interest holder. Those reasons are found at 2010 BCSC 774.

[4]             Remaining at issue on the second phase of the trial is whether forfeiture of all or part of the Truck, conditionally or otherwise, is clearly not in the interests of justice and whether the CFA, to the extent that it permits forfeiture in the circumstances, contravenes ss. 7 and 11 of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”).

Facts

[5]             Mr. Wolff is a retired captain of a fire department. On 28 June 2007, Mr. Wolff pled guilty to one count of possession of a controlled substance for the purpose of trafficking for an offence that occurred on 23 November 2005 and received a conditional discharge.

[6]             On the date of the offence, Mr. Wolff was driving the Truck on his way to Williams Lake, B.C., when he was pulled over for speeding. The RCMP officer who conducted the traffic stop observed a strong odour of burnt marijuana coming from Mr. Wolff’s vehicle and arrested Mr. Wolff for possession of a controlled substance.

[7]             The officer then searched the vehicle and found eight one-half pound Ziploc bags of marijuana inside a black garbage bag, all inside a duffel type gym bag. The duffle bag also contained some of Mr. Wolff’s clothing and an inflatable mattress bearing his name. Mr. Wolff was re-arrested for possession of a controlled substance for the purpose of trafficking.

[8]             At the time of the offence, the Truck was leased. The RCMP released the Truck to Mr. Wolff shortly after his own release on bail. Mr. Wolff testified that in 2003 he paid $20,000 as a down payment for the lease and made monthly lease payments of $450.24. In June 2007, pursuant to an option under the lease, Mr. Wolff bought the Truck outright for $23,140.68 plus tax. He used his retirement allowance for that purpose and also testified that he paid a total of $52,000 for the Truck. None of the evidence respecting the acquisition of the Truck was contradicted. Mr. Wolff remained in possession of the Truck until its eventual seizure during the course of this proceeding.

[9]             The CFA did not come into force until after the offence. The Act received Royal Assent on 24 November 2005 and was proclaimed in effect April 20, 2006. The Director did not commence the in rem proceeding against the Truck until 18 December 2007.  

[10]         Section 6(1) of the CFA provides a general defence to forfeiture in the present circumstances if Mr. Wolff can show forfeiture is "clearly not in the interests of justice”. The subsection reads:

6          (1)        If a court determines that the forfeiture of property or the whole or a portion of an interest in property under this Act is clearly not in the interests of justice, the court may do any of the following:

                        (a)        refuse to issue a forfeiture order,

                        (b)        limit the application of the forfeiture order;

                        (c)        put conditions on the forfeiture order.

Section 6 also sets out other defences that are not applicable to the matter at hand.

[11]         Section 16 of the CFA indicates that the standard of proof is the ordinary civil standard of balance of probabilities: British Columbia (Director of Civil Forfeiture) v. Wolff, 2010 BCSC 774 at para. 40, citing F.H. v. McDougall, 2008 SCC 53; British Columbia (Director of Civil Forfeiture) v. Rai, 2011 BCSC 186 at para. 15.

[12]         The onus of proving that the Truck was an instrument of unlawful activity Is on the Director. The onus of proving a defence under s. 6(1) is on Mr. Wolff: Rai at para. 16.

[13]         In Rai, at para. 110, Silverman J. listed principles applicable to the interests of justice analysis under s. 6 of the CFA. After observing that the list is not exhaustive, he noted that the appropriate factors to be considered, the weight given to each factor and the interrelationship of relevant factors must be determined on a case-by-case basis. He also held that the legislation must not be a means of avoiding the criminal standard of proof and that punishment is not a factor.

[14]         In addition, at paras. 111-114, Silverman J. also listed, and expanded upon, factors to be considered in cases involving marijuana grow-operations where, of course, the property is an instrument of unlawful activity as is the Truck here. The factors set out below also apply to the case at bar:

[111]    A non-exhaustive list of relevant factors to be considered in cases of this kind includes the following:

            1.         proportionality;

            2.         fairness;

            3.         the degree of culpability, complicity, knowledge, acquiescence, or negligence;

            4.         the extent of the problem in the community of the sort of unlawful activity in question;

            5.         the need to remove profit motive;

            6.         the need for disgorgement of wrongfully obtained profits;

            7.         the need for compensation;

            8.         prevention of future harm;

            9.         general deterrence.

[112]    The degree of culpability, complicity, knowledge, acquiescence, or negligence is not relevant to any consideration of a punitive remedy. However, where the degree of those factors is minimal or reduced, their consideration may be relevant to the question of whether the interests of justice call for some relief from forfeiture.

[113]    Proportionality and fairness will always be the dominant considerations. They are necessarily related and will often include a consideration of the following:

            1.         A balancing of the impact of a forfeiture order on, and a balancing of the interests of, the state, the defendant, and other affected parties, such as innocent victims, and/or innocent spouses or children of the defendant.

            2.         Where the extent of forfeiture of real property is under consideration, the following questions become relevant:

                      (a)        how much equity is there in the property?

                      (b)        how much was the defendant's legitimate investment in the property before criminal activity commenced?

                      (c)        how much equity has built up as a result of market conditions?

                      (d)        how much equity has built up since an interim preservation order was granted under the Act?

            3.         Would forfeiture require a drastic lifestyle change for the defendant and/or for innocent family members?

            4.         Would forfeiture affect employment opportunities?

            5.         The magnitude of the unlawful activity and/or of its profits, or potential profits.

[114]    A purely mathematical analysis will rarely, if ever, be the most suitable approach.

[15]         In British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2009 BCSC 322, aff’d on appeal at 2010 BCCA 539, Davies J. also discussed how the interests of justice should be balanced, although in relation to the continuation of an interim preservation order. He considered the contention that three motorcycles and the Nanaimo Hells Angels’ clubhouse should be subject to a continuing preservation order as “instruments of unlawful activity” under the CFA.

[16]         Mr. Justice Davies held that the motorcycles were incidental to the search of the clubhouse and the Director failed to prove that the three specific motorcycles would be prospectively used as “instruments of unlawful activity” under the CFA, despite the low threshold for establishing prospective use. In addition, the Director failed to show how these three motorcycles differed from any other Harley Davidson motorcycles owned by the Hells Angels for which the Director did not seek interm preservation orders: paras. 205-210. As a result, Davies J. denied the continuation order for the motorcycles, and held that in those circumstances a continuing seizure would lead to arbitrary law enforcement that would not be in the interests of justice.

[17]         However, in respect of the continuing preservation order over the clubhouse, Davies J. agreed that there should be a continuing seizure order because the “interests of justice” under s. 8(5) of the CFA should include more than just the interests of the parties to litigation. He explained the varying interests in this way at paras. 221-225 and 230-233:

[221]    The interests of the Director in the continued seizure of the Clubhouse as well as Lots 7 and 8 are obvious. The Director seeks to preserve the property in its present state pending the trial of his claims under the Act, so that if ultimately successful, the property will be available for forfeiture without diminution of value.

[222]    The defendants' interests in precluding the continued seizure of the Clubhouse are also obvious. They have rights of ownership which have existed for many years, have already been denied any use of their property for more than a year, and will continue to suffer that loss of use for a further considerable period of time before this case will finally be resolved at trial. If they are successful at trial in resisting the Director's assertions, they will receive no recompense for the loss of the use of their property.

[223]    The societal interests that are engaged by this dispute are also fairly easily identified. The right to own property and the freedom to enjoy it without state interference is one of the hallmarks of a free and democratic society. On the other hand, no property owner has the right to use his, her or its property for illegal purposes and cannot do so with impunity.

[224]    If this case was not concerned with the alleged prospective use of the Clubhouse as an instrument of unlawful activity I would have been inclined to find that the interests of justice would not require the granting of a continuing interim preservation order on terms similar to those in the Original Interim Order, which effectively allowed the complete seizure of the Clubhouse and its contents by either the Director or the supervising solicitor.

[225]    The alleged unlawful activity upon which the Director relied to obtain the Original Interim Order occurred many years ago and it is, in my view, significant that the prosecution of the Project Halo investigation that formed the primary basis for the Director's without notice application was eventually stayed. Further, the existence of the alleged "booze can" operation was known to the authorities for many years and could have been, but never was, addressed through far less invasive remedies available to the Province of British Columbia under the Liquor Control and Licensing Act, R.S.B.C. 1996, c. 268.

...

[230]    If, for example, the only issue that remained for consideration in this case was whether the Clubhouse was being used to operate an illegal "booze can," I am satisfied that a preservation order denying any use of the Clubhouse by the defendants whatsoever pending trial would be excessive and thus not in the interests of justice. An order restraining the defendants from selling liquor without a license, coupled with an order restraining the disposition of Lots 7 and 8 and requiring the defendants to keep the Clubhouse insured for its full value pending trial, would be sufficient in those circumstances to protect the Director's legitimate interests.

[231]    An alleged illegal bar operation is not, however, the only matter that must eventually be addressed at the trial of this proceeding.

[232]    The Director has raised very serious issues to be tried about alleged continuing high-level unlawful activity emanating from or otherwise involving the use of the Clubhouse by the HAMC and the NHAMC.

[233]    Although the Act is relatively new legislation, there has been some judicial consideration of its purposes and I am satisfied that those purposes must be considered as part of the public interest component in determining whether the interests of justice require the continued seizure of the Clubhouse pending trial. [Emphasis added.]

[18]         Mr. Justice Davies went on to identify “the suppression of conditions likely to favour the commission of crimes” as one of the purposes of the CFA (para. 239) but the decision also suggests that where the goal of prevention of future harm can be achieved through less intrusive means than a preservation order, and I would add, complete forfeiture, the court should consider whether some lesser remedy could meet the goal; otherwise the court risks ordering an excessive remedy contrary to the interests of justice.

[19]         In addition, the reasoning in Angel Acres suggests that the Director must demonstrate, albeit on a low threshold, that the instrument of unlawful activity may be prospectively used to engage in future crime; otherwise, the interests of justice will not be served in forfeiting the property.

[20]         I accept that the principles articulated in Rai are applicable to the case at bar. I also agree that the principles in Angel Acres are applicable, even though the decision concerned an interim preservation order. The need to consider less intrusive remedies where the concern is prevention of future crime and the low threshold of proof that an instrument may be used in future crimes also apply to claims for final forfeiture.

[21]         On the latter point, however, I am not persuaded that the Director demonstrated any risk that the Truck would have been used to engage in future criminal activity involving the possession of marijuana for the purpose of trafficking or any analogous offence. At the time of the offence, the Truck was only leased, in effect financed. Mr. Wolff did not buy out the lease and purchase the Truck until approximately two years after he was charged with the offence. I draw no inference from the circumstances of ownership respecting any past or continuing involvement in drug trafficking.

[22]         Further, I cannot conclude that any proceeds of unlawful activity were used to purchase the Truck. Nor did the Director pursue such a claim.

[23]         As to the need to consider less intrusive remedies, I take into account that the limited evidence is insufficient to support a conclusion that Mr. Wolff was involved in trafficking before his offence. On the evidence, he was, at the time of the offence, already legitimately employed in a responsible position and regularly made personal trips from Victoria to Williams Lake to hunt wildlife. There is no direct evidence that he received anything in exchange for his involvement in the offence, although it is reasonable to conclude that he expected something in exchange for his services.

[24]         Overall, however, the available evidence does not properly support an additional inference that Mr. Wolff otherwise used or intended to use the Truck to commit similar offences. Any such inference would be speculative.

[25]         I do not minimize Mr. Wolff’s involvement in the offence. For example, I do not accept his contention that it was only minimal or technical. It would be inconsistent with the guilty plea to conclude that Mr. Wolff was entitled to succeed on a de minimus defence.

[26]         The Director asserts that Mr. Wolff had knowledge of the marijuana in the gym bag and benefited from the trafficking activity, either as a principal or as a knowing and paid associate of Mr. X, the unidentified provider of the bag and content, according to Mr. Wolff. Mr. Wolff, on the other hand, asserts that he had no knowledge until he opened the duffle bag, as well as the inner black bag, after his arrival in Williams Lake, and found the marijuana. He claims, as a result, that he was an unwitting participant in trafficking marijuana, thereby making him only “technically guilty” of possession of a controlled substance for the purpose of trafficking. 

[27]         The Director asked me to draw an adverse inference against Mr. Wolff for failing to identify Mr. X or Mr. Y, the intended recipient to whom Mr. Wolff was supposed to deliver the duffle bag and content. Mr. Wolff was given an opportunity under cross-examination to provide the name of the individual who owned the duffle bag. He chose not to give the name of Mr. X, citing safety concerns, with the full knowledge that I would draw an adverse inference from his failure to disclose the name of Mr. X.

[28]         Partially as a result, I have found that Mr. Wolff was aware of and benefited, or expected to benefit, from the trafficking activity. His involvement in the offence of possession for the purpose of trafficking was more than “technical” and the de minimis defense is not open to Mr. Wolff.

[29]         However, there is no evidence that Mr. Wolff was knowingly engaged in organized criminal activity. It is more likely that this was a one-time offence, as Mr. Wolff does not have a history of drug trafficking and was, otherwise, a respected member of the community. Even if the offence occurred as part of organized criminal activity, it is highly unlikely that had Mr. Wolff known that to be the case, he would have removed some of the marijuana for his personal use. In the result, I am satisfied that Mr. Wolff was a knowing and willing courier of the marijuana found in the Truck but I am not satisfied that his involvement, or that of the Truck, extends beyond that.

[30]         I intend to deal next with the Director’s entitlement to forfeiture in the circumstances. I propose to first conduct the analysis within the confines of the CFA. If Mr. Wolff is successful in resisting forfeiture on that basis, there will be no need to separately consider the Charter issues raised: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at para. 55.

[31]         Mr. Wolff contends that forfeiture amounts to a punishment that did not exist in law at the time of the offence and is, in any event, an improper second punishment for the offence. The Director contends that this case is only concerned with prevention and compensation aspects of the CFA. Before referring to some additional evidence relied upon by the Director, it is important to keep in mind that the CFA may have legitimate purposes even if there are some punitive aspects arising out of its application.

[32]         The Supreme Court of Canada in Chatterjee v. Ontario (Attorney General), 2009 SCC 19, considered whether the Ontario Civil Remedies Act, the equivalent of the CFA, was ultra vires the provincial head of power to the extent it provides for forfeiture of the “proceeds of unlawful activity” (emphasis added). Ultimately, the Court held that, despite overlapping effects, the forfeiture of “proceeds of crime” was validly within the provincial head of power (paras. 4, 23):

[4]        Moreover, the CRA method of attack on crime is to authorize in rem forfeiture of its proceeds and differs from both the traditional criminal law which ordinarily couples a prohibition with a penalty [citation omitted] and criminal procedure which in general refers to the means by which an allegation of a particular criminal offence is proven against a particular offender. The appellant’s answer, however, is that the effect of the CRA in rem remedy just adds to the penalties available in the criminal process, and as such the CRA invalidly interferes with the sentencing regime established by Parliament. It is true that forfeiture may have de facto punitive effects in some cases, but its dominant purpose is to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime and to help compensate private individuals and public institutions for the costs of past crime. These are valid provincial objects.

[23]      In essence, therefore, the CRA creates a property-based authority to seize money and other things shown on a balance of probabilities to be tainted by crime and thereafter to allocate the proceeds to compensating victims of and remedying the societal effects of criminality. The practical (and intended) effect is also to take the profit out of crime and to deter its present and would-be perpetrators.

[33]         With reference to the validity of the CFA, in British Columbia (Director of Civil Forfeiture) v. Onn, 2009 BCCA 402 at para. 14, Garson J.A. held that:

[14]      The purpose of the Act is threefold:

            (a)        to take the profit out of unlawful activity;

            (b)        to prevent the use of property to unlawfully acquire wealth or cause bodily injury; and

            (c)        to compensate victims of crime and fund crime prevention and remediation.

While there was no attack on the validity of the CFA in Onn, it is difficult to envisage it supporting an attack on the validity of the B.C. legislation in light of Chatterjee. Although for the additional reasons set out below, it is unnecessary for me to address that issue.

[34]         Earlier I emphasized that Chatterjee was directly concerned with the forfeiture of proceeds of crime rather than instruments of crime. Under s. 6(1) of the CFA, the determination whether forfeiture is clearly not in the interests of justice applies to both proceeds and instruments of unlawful activity. In general, forfeiture is more likely where the application is confined to the proceeds of crime or an instrument that is wholly used for the commission of a crime. However, where the instrument is primarily used for lawful purposes and was obtained through lawful funds I find that it would be more punitive to require full forfeiture.

[35]         I do not accept the Director’s contention, based on Chatterjee, that a valid provincial purpose to compensate private individuals and public institutions for the costs of past crime extends to “instruments of crime” derived from and primarily used for a lawful purpose. This contention, if accepted, would impose liability on Mr. Wolff for the past conduct of other people engaged in unlawful activity. In my opinion, that would be grossly disproportionate and unfair in the present circumstances.

[36]         It would also be contrary to common law principles of individual responsibility. Situations where collective guilt and collective responsibility are imposed, such as joint and several liabilities in tort actions or class action lawsuits, apply to a discrete and measurable population and do not apply to compensate society as a whole.

[37]         I do not accept that Chatterjee mandates or supports such a result. In any event, the evidence relied on by the Director to support the compensatory claim illustrates how disproportionate and unfair such a result would be. Instead, for a finding of forfeiture based on compensatory principles, there must be evidence to demonstrate that the use of the Truck caused harm or damage that is sufficiently measureable to require compensation.

[38]         The Director relies on the expert evidence of Dr. Popova to demonstrate the social costs totaling $140.6 million attributable to cannabis-marijuana use in 2005 in British Columbia:

(1)            Direct health care costs of $32.9 million;

(2)            Direct Criminal Justice System costs of $106.8 million; and

(3)            Productivity losses of $0.9 million.

According to the Director, these are likely conservative calculations.

[39]         The Director also relied on the expert evidence of Dr. Plecas to identify the myriad of social harms associated with marijuana use and grow operations. The Plecas report indicates that the industry is controlled by organized crime and that a typical grow operation generates annual profits of $300,000. He estimates the total value of the marijuana industry in the province to be $1.2 billion.

[40]         The Director relies on this evidence to demonstrate that Mr. Wolff caused harm or damage sufficiently measurable to require compensation. The Director says that the principle that individuals should compensate groups if they harm them is an old one. It is undeniably true that the legislatures have recognized the practical difficulties in using traditional tort analysis for this purpose. As such, they have responded with legislation like the Class Proceedings Act, R.S.B.C. 1996, c. 50, the Tobacco Damages and Health Care Costs Recovery Act, S.B.C. 2000, c. 30, upheld in British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, and the recent Health Care Costs Recovery Act, S.B.C. 2008, c. 27. This legislation creates machinery to make compensation for diffuse but real harms more practical. The CFA, according to the Director, is part of this development.

[41]         The Director also submits that, since Mr. Wolff willingly used his Truck as part of the marijuana industry, then he contributed to the harms and costs that industry as a whole imposes on society. The Director relies on Cook v. Lewis, [1951] S.C.R. 830, to assert that all who contribute to the diffuse harm are jointly and severally liable for the harm they caused and if we cannot pinpoint causation specifically among wrongdoers, it is the wrongdoers themselves who have the burden of showing which among them caused the specific harm. It is on this basis that the Director claims forfeiture of the Truck would be compensatory unless the total amount forfeited exceeded the “total social cost.”

[42]         The Director further submits that the Civil Forfeiture Act provides that the value of instruments used in the unlawful activity provide at least a prima facie measure of compensatory value. To this end he relies upon the principles underlying the liquidated damages clause in contract law. In Dunlop Pneumatic Tyre Company v. New Garage and Motor Company, [1915] A.C. 79 (H.L.) (“Dunlop Tyre”), the court held that a clause will be a penalty if the sum stipulated is extravagant and unconscionable in comparison with the greatest loss that could conceivably be proved to have followed from the breach. On the other hand, it is no obstacle to the sum stipulated being a genuine pre-estimate of damage that the consequences of the breach are such as to make precise pre-estimation almost impossible. The Director explains that compensatory forfeitures, like liquidated damages clauses, must be a reasonable estimate of the actual harm caused or contributed to by the act giving rise to the forfeiture, but they may apply where that harm is difficult to precisely quantify.

[43]         Mr. Wolff asserts that the evidence of Dr. Popova and Dr. Plecas is biased and unreliable. Specifically, he says that the selective process of research promotes the opinion or belief of the government, namely, the source of the grant funding.

[44]         In addition, Mr. Wolff says that the Fraser Institute Study, to which Dr. Plecus testified, failed to consider the economic benefits of the marijuana industry. To this end he relies upon the Easton Study to contend that, while there are costs to society, there are also economic benefits derived from the marijuana industry.

[45]         Whatever the real social costs are, I do not accept that Mr. Wolff is liable for the total social cost of the marijuana industry. To impose any such amount would be arbitrary since each person’s contribution to the total harm is different. Proportionality and fairness require that Mr. Wolff be held liable for the harm emanating from his individual actions, but not for the actions of others regardless of whether I am right or wrong in my finding that he is not involved in organized crime.

[46]         I cannot accept the estimates of the societal costs of marijuana as an accurate depiction of individual liability for the harm the marijuana industry has caused society. While these studies may be useful to assist government in developing policy, they are of little assistance to the court in attributing liability to individuals for the harm their actions have caused.

[47]         One significant shortcoming of these studies, from a legal liability perspective, is that they cannot account for the personal choice that individuals make when they choose to consume a controlled substance and the corresponding cost and liability associated with that choice. It would be naïve to assume that the state could eradicate all controlled substance trafficking and consumption. Accordingly, it must stand that those who consume marijuana also bear partial liability for the choices they make.

[48]         While I agree that there are extensive health care and law enforcement costs that society bears, and that such costs far exceed the value of the Truck, I do not agree that Mr. Wolff should be treated as though he were jointly and severally liable for these costs. As such, the costs and corresponding liabilities that the Director has proffered are too arbitrary for me to apply.

[49]         One of the Director’s specific submissions is that only $960,983.00 was collected in forfeiture and fines for federally prosecuted offences in 2005 and, as a result, the province would not be overcompensated by full forfeiture of the Truck.

[50]         This submission fails because the evidence demonstrated, as common sense suggests, that not all of those involved in the marijuana industry are detected. It would not be in the interests of justice to hold Mr. Wolff responsible, not only for other people involved in the marijuana industry but those who are undetected as well.

[51]         Additionally, Mr. Wolff cannot be as liable, or possibly more liable, than an individual who is caught with a significantly larger amount of marijuana, but either does not own a vehicle, or owns a vehicle of significantly less value. To make such a finding would be capricious and unfair.

[52]         To analogize this situation to a torts claim, it would be arbitrary and unfair for an individual who was harmed by a motor vehicle accident to simply take whatever the instrument was that caused the harm. This would result in a situation where some people are overcompensated for the harm they experienced while other people are undercompensated. While I accept that this is not a torts action, the principles of predictability, parity and just desserts are at play as they are founded in proportionality and fairness.

[53]         In the result, I find that the interests of justice would clearly not be served by forfeiture of the whole of the Truck because proportionality and fairness cannot be attained.

[54]         The Director further submits that the preventative interest supports forfeiture where there is a substantial risk that the property will be used for further illegal activities, or where there is no lesser order that will effectively prevent further use for illegal activities.

[55]         The Director contends that the risk of re-occurrence, as opposed to the severity of the wrong, should drive the court’s analysis at this stage. For this proposition, he relies upon the equitable law of permanent injunctions which are invoked for a preventative purpose: British Columbia (Attorney General) v. Couillard (1984), 11 D.L.R. (4th) 567 (B.C.S.C.); Attorney General v. Harris, [1961] 1 Q.B. 74 (C.A.).

[56]         The Director says that Mr. Wolff never really took responsibility for knowingly transporting and that while his statement to the RCMP that he did not regard it as a big deal has the ring of truth, his subsequent refusal to acknowledge harm does not. For this reason, the Director argues that nothing short of forfeiture of the Truck will ensure that it is not used again for trafficking.

[57]         I do not agree that forfeiture would be preventative in this case. The trafficking occurred nearly four years ago. There is no evidence that Mr. Wolff has engaged in any further unlawful activity. Even if I order the Truck forfeited, there is nothing stopping Mr. Wolff from borrowing or renting a vehicle should he choose to engage in similar activities in the future.

[58]         Furthermore, I do not agree that prevention should be elevated above the dominant considerations of proportionality and fairness. If the Director’s true motive was to prevent prospective unlawful activity, then the Director would have moved in a timelier manner to initiate the proceedings. Instead, the Director waited until December 2007, after Mr. Wolff had been convicted, sentenced, and had legitimately bought out the lease on the Truck, before commencing these proceedings. While I recognize that the CFA does not impose a limitation period in which to commence an action, I do not agree that it is in the interests of justice for the Director to wait an inordinate amount of time and then rest his case on the goal of prevention.

[59]         If Mr. Wolff had a history of trafficking or if there was some evidence, rather than mere speculation, that he would have engaged in trafficking using the Truck again, my decision in this regard would have been different. In those events, it would not be clearly unjust to order forfeiture as a preventative measure.

[60]         After considering and taking into account proportionality and fairness, as well as Mr. Wolff’s degree of culpability demonstrated by the evidence, the need for compensation in the circumstances and, finally, the need to prevent future harm and deterrence, I am satisfied that the forfeiture of the whole of the Truck is clearly not in the interests of justice. Accordingly, Mr. Wolff’s defence succeeds to that extent.

[61]         I turn next to the narrower question of partial forfeiture. In this regard, I have considered the same factors but it is important to consider the practical ramifications of any order for partial forfeiture. Such an order would effectively constitute a punitive fine to be imposed on Mr. Wolff as a condition of returning the Truck to him. It would not, in any other way, impact upon the future use of the Truck.

[62]         I take into account that, at the time he was arrested, Mr. Wolff was leasing the Truck and had been doing so since 2003. Based on the content of an earlier affidavit sworn by Mr. Wolff and tendered in evidence during his cross-examination at trial, Mr. Wolff leased the Truck new, and made a down payment of $20,000 from an insurance claim for a previous stolen vehicle. Monthly lease payments were deducted from the bank account to which his pay cheque was deposited. In June 2007, he paid off the lease balance and bought the Truck outright. The Director did not cross-examine Mr. Wolff respecting these details.

[63]         The Director says that the lease appears to have been a “security lease”, that is, a way of financing a purchase. It required a substantial down payment and thereby gave Mr. Wolff equity in the Truck: Daimler Chrysler Services Canada Inc. v. Cameron, 2007 BCCA 144. I agree.

[64]         The Director submits that the CFA does not require the owner of an instrument at the time of forfeiture be the owner at the time of the underlying unlawful act. What matters is whether the present owner was “uninvolved.”  According to the Director, does it matter if the same owner has changed the nature of the ownership interest or increases the equity in the property. The Director says that this was a deliberate decision by the Legislature to guard against an owner of a marijuana grow operation transferring the land to another involved person; this should not create a defense.

[65]         The Director further says that it is not a defence to liability under the instruments analysis that the owner paid down the mortgage or improved the property. An increase in equity does not render a claim for forfeiture of an instrument unjust if the forfeiture can still be justified on a compensatory or preventative basis. According to the Director, more equity does not affect the preventative rationale for forfeiture. It will only affect the compensatory rationale if the greater equity renders the government over compensated.

[66]         I agree that where an owner of an instrument of crime transfers his property interest to another involved person, the owner should not be able to shield himself from liability. This would amount to a fraudulent transfer. However, that is not the case here. The leasing company was not involved and did not transfer the property to Mr. Wolff to avoid a liability. Nor can I say that Mr. Wolff intentionally leased his vehicle to avoid liability in order to traffic marijuana.

[67]         I do not agree that it would serve the interests of justice to compel forfeiture of instruments that were not owned at the time the offence was committed. Furthermore, as already stated, I am gravely concerned that the Director waited until after Mr. Wolff acquired title to the Truck before commencing this proceeding. To, in effect, now impose a fine (in a necessarily arbitrary amount given the lack of evidence) as a condition of returning the Truck to Mr. Wolff is, given the overall circumstances, including the delay, clearly not in the interests of justice.

[68]         Further, while this proceeding is in rem, it must be recognized that but for the actions of Mr. Wolff, the Truck would not have been used in the commission of unlawful activity. Therefore, it is Mr. Wolff, not the Truck, that the Director seeks to prevent and Mr. Wolff upon whom the Director seeks to impose liability for compensation. In this regard, I cannot find that the interests of justice would be served to compel the forfeiture of the lawfully acquired funds that Mr. Wolff used to buy out his Truck after he was convicted and a sentence was imposed.

[69]         I decline to order forfeiture of the Truck, in whole or in part. As Mr. Wolff is entitled to the return of the Truck immediately, it is not necessary that I address the constitutional attack on the validity of the CFA. I dismiss the proceeding with costs on Scale B payable to Mr. Wolff.

                “R.W. Metzger, J.”             

The Honourable Mr. Justice Metzger