IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

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

 

2013 BCSC 1643

Date: 20130905

Docket: 11-3747

Registry: Victoria

Civil Forfeiture Action in Rem Against
2008 Ducati 1098 Motorcycle with Vehicle Identification Number ZDM1XBEW18B012235 (the “Ducati”) and the Fruits and Proceeds therefrom

Between:

Director of Civil Forfeiture

Plaintiff

And

The Owners and all Others Interested in the Ducati,
in Particular Jason Alan Dery

Defendant

Before: The Honourable Mr. Justice Bowden

Reasons for Judgment

Counsel for the Plaintiff:

S.E. King
S.E. Lacusta

Counsel for the Defendant, Mr. Dery:

B.W. Johnson

Place and Date of Trial/Hearing:

Victoria, B.C.

July 2-3, 2013

Place and Date of Judgment:

Victoria, B.C.

September 5, 2013


 

[1]             The Director of Civil Forfeiture (the “Director”) commenced these proceedings under the Civil Forfeiture Act, S.B.C. 2005, c. 29 [CFA], and seeks the forfeiture of the defendant’s 2008 Ducati motorcycle under s. 3(2) of the CFA.

[2]             The Director’s case is based in part upon facts that the defendant is deemed to have admitted as a result of his failure to respond to notices to admit, served upon him under Rule 7-7(2) of the Supreme Court Civil Rules.

[3]             The admitted facts are as follows:

1)         The defendant purchased a 2008 Ducati 1098 motorcycle (the “Ducati”), on March 15, 2008;

2)         The defendant has been the registered owner of the Ducati at all material times and the only person who operates it;

3)         The defendant also owns a 1997 Ford F150 truck, a 2006 Dodge Sprinter van, a 2005 Ducati 999R motorcycle and a 1992 Ducati 900SS motorcycle;

4)         On May 12, 2008, the defendant received a ticket for passing vehicles on the right, while operating the Ducati;

5)         On May 17, 2008, the defendant received a ticket for excessive speed when he rode the Ducati in a 50 kph zone, at a speed of 118 kph, in Cache Creek, B.C.;

6)         On August 26, 2008, the Superintendent of Motor Vehicles prohibited the defendant from driving for four months because of his unsatisfactory driving record;

7)         On August 1, 2009, the defendant received a ticket for excessive speed when he operated the Ducati at a speed of 132 kph in a 90 kph zone, in Ladysmith, B.C.;

8)         On August 2, 2010, the defendant received a ticket for speeding when he was operating the Ducati at a speed of 140 kph, on a highway where the posted speed limit was 100 kph;

9)         On July 2, 2011, the Ducati was being operated by the defendant when it turned off Wallace Drive on Willis Point Road travelling toward Durrance Lake, Victoria, B.C. The posted speed limit on Willis Point Road was 60 kph. The Ducati accelerated to 163 kph, then to 170 kph westbound, and then to speeds in excess of 200 kph; and

10)      The defendant also has an extensive driving record involving Motor Vehicle Act offences while operating his other vehicles. Since 1990, his driving record indicates that he has committed 39 motor vehicle offences, including five 24-hour driving prohibitions.

[4]             Only the defendant testified in these proceedings. The additional facts emerging from his testimony are as follows:

1)         The defendant is 40 years of age. He completed junior high school and works as an automotive collision repair technician;

2)         In respect of the Motor Vehicle Act violations incurred while he was riding the Ducati, the defendant has paid fines, victim surcharge levies and driver penalty points, plus driver risk premiums totaling $3,600, based on his poor driving history;

3)         On July 2, 2011, when the defendant exceeded the posted speed limit of 60 kph, by travelling at a speed in excess of 200 kph, the road was straight and he did not observe any person or vehicle on the road. He had travelled on that road a number of times in the past. It was in a rural area and there were no side streets. It was a sunny and dry day. He was testing the performance of the Ducati after it had been serviced. On that day his 2008 Ducati was impounded by the police and has not been returned to him since.

4)         The defendant says that since July 2, 2011, he has taken “personal accountability” for his driving and he has had no speeding tickets. Further, he has never had an accident involving any of his motorcycles. This is supported by his most recent ICBC renewal notice which shows that he has earned a 43% discount on his vehicle insurance as a good driver.

[5]             The defendant did not offer any evidence to establish that the value of the Ducati is different from the range suggested by the Director, which is between $7,400 and $12,200, but he considers the Ducati to be worth $14,000.

[6]             The defendant uses the Ducati for recreation and does not require it for transportation to and from his place of employment.

[7]             The Director submits that the Ducati is an instrument of unlawful activity under s. 1 of the CRA because it was used by the defendant on May 17, 2008, August 1, 2009, and August 2, 2010, when he received tickets for speeding and also because it was used by the defendant on July 2, 2011, in a manner that amounts to an offence under the Motor Vehicle Act and the Criminal Code. The Director says that it does not matter that the defendant was not charged under the Motor Vehicle Act nor that a charge under the Criminal Code for dangerous driving was stayed, and invites this Court to find that the facts support a conviction under s. 144 of the Motor Vehicle Act for careless driving, and s. 249(1)(a) of the Criminal Code for dangerous driving.

[8]             The defendant argues that the Ducati is not an instrument of unlawful activity and, if this Court finds that it is, then the defendant should be relieved from forfeiture because it is clearly not in the interests of justice. The defendant also argues that forfeiture in this case would amount to a breach of ss. 7 and 11(h) of the Charter of Rights and Freedoms.

I.                 Analysis

[9]             In British Columbia (Director of Civil Forfeiture) v. Onn, 2009 BCCA 402, Garson J.A. stated the three purposes of the CFA, at para. 14:

(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.

[10]         In this case the Director asserts that the Ducati is an instrument of unlawful activity and that the preventative and compensatory purposes apply to the defendant’s use of the Ducati.

[11]         In British Columbia (Director of Civil Forfeiture) v. Wolff, 2012 BCCA 473, the Court of Appeal said that the Director is not required to persuade the court that forfeiture will serve all or some of the statutory objectives.

[12]         Section 1 of the CFA defines “instrument of unlawful activity” to include:

(a) property that has been used to engage in unlawful activity that, in turn,

(i) resulted in or was likely to result in the acquisition of property or an interest in property, or

(ii) caused or was likely to cause serious bodily harm to a person;

(b) property that is likely to be used to engage in unlawful activity that may

(i) result in the acquisition of property or an interest in property, or

(ii) cause serious bodily harm to a person;

(c) property that is realized from the disposition of property described in paragraph (a) or (b) under an order of the court under section 8 (3) (d)

[13]         Section 1 also defines unlawful activity to include:

(a) if an act or omission occurs in British Columbia, the act or omission, at the time of occurrence, is an offence under an Act of Canada or British Columbia;

[14]         Section 5(2) provides:

(2) Subject to section 6 and section 13 (1), if proceedings are commenced under section 3 (2), the court must make an order forfeiting to the government property that the court finds is an instrument of unlawful activity.

[15]         Section 6(1) provides:

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.

[16]         Section 18 provides:

18 In proceedings under section 3 or 14.11, an unlawful activity may be found to have occurred even if

(a) no person has been charged with an offence that constitutes the unlawful activity, or

(b) a person charged with an offence that constitutes the unlawful activity was acquitted of all charges in proceedings before a criminal court or the charges are withdrawn or stayed or otherwise do not proceed.

[17]         The Director bears the onus of proof that the Ducati is an instrument of unlawful activity. The standard of proof in these civil proceedings is the balance of probabilities.

[18]         None of the reported decisions brought to the Court’s attention regarding the CFA or similar legislation in other provinces consider the application of the legislation to motor vehicles that have been involved in a motor vehicle offence in a province. The majority of the cases cited by counsel involve proceedings against property used for the cultivation of marihuana, an offence under the Controlled Drugs and Substances Act.

[19]         The Director’s position is that the Ducati was used as an instrument of unlawful activity to commit driving offences under the Motor Vehicle Act and the Criminal Code that caused or were likely to cause serious bodily harm to a person.

[20]         The only evidence that was before the Court of unlawful activity was that the defendant was operating the Ducati on four occasions when he exceeded the posted speed limit. There is no evidence of any behaviour of the defendant in operating the Ducati on those days other than speeding, nor is there any evidence that a pedestrian or other vehicle was at risk of harm because of the defendant’s actions.

[21]         With regard to the Motor Vehicle Act offences of speeding committed by the defendant on May 17, 2008, August 1, 2009, and August 2, 2010, while I accept that the Ducati was used in an unlawful activity on those occasions, namely an offence under the Motor Vehicle Act, the Director has not presented any evidence, expert or otherwise, that such unlawful activity was likely to cause serious bodily harm to a person. Further, there is no evidence of the circumstances surrounding the commission of the speeding offences that could lead the Court to find that serious bodily harm to a person was a likely result. In my view, such evidence is necessary before a court can determine whether or not the Ducati was used as an instrument of unlawful activity. Without such evidence, the act of speeding in excess of a posted speed limit alone should not lead to the forfeiture of a motor vehicle under the CFA.

[22]         With regard to the future use of the Ducati, which must be considered under s. 1(b) of the definition of “instrument of unlawful activity,” the evidence is that the defendant has not received a ticket for speeding since the incident of July 2, 2011. In my view, the evidence supports the view that the defendant has now been sufficiently penalized for his past behaviour to be deterred from such behaviour in the future.

[23]         The Director’s position regarding the operation of the Ducati by the defendant on July 2, 2011, is somewhat different than that regarding the offences under the Motor Vehicle Act.

[24]         The Director submits that the behaviour of the defendant when operating the Ducati on July 2, 2011, amounts to dangerous driving under the Criminal Code. If that is correct, then this Court might well conclude that the use of the Ducati on that date was likely to cause serious bodily harm to a person.

[25]         In the Criminal Code, the offence of dangerous driving is defined in s. 249(1)(a) as follows:

Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;

[26]         Before it can be concluded, even on a balance of probabilities, that the offence of dangerous driving was committed by the defendant on July 2, 2011, all of the circumstances surrounding the driving, including the condition and use of road where the vehicle was operated and the amount of traffic at the time or that might be expected must be considered.

[27]         The uncontradicted evidence of the defendant is that the road where he accelerated to about 200 kph was long and straight; the weather was sunny and clear with good visibility; the road surface was dry; there were no other vehicles on the road or in sight; there were no pedestrians on the road or in sight; and the Ducati was in perfect working condition with brakes and tires that had recently been replaced.

[28]         The most the Director can say, although there is no evidence to support it, is that the defendant could not have avoided any unexpected occurrence on the highway. The defendant was not asked in cross- examination what he could have done if faced with an unexpected emergency such as a deer crossing the roadway.

[29]         The Director relies on a decision of the Ontario Court of Appeal, R. v. M.K.M., [1998] O.J. No. 1606, as authority for the proposition that excessive speed alone can amount to dangerous driving. In my view, M.K.M. does not support the Director’s argument. At para. 2, the Court stated:

Depending on the context in which it occurred, excessive speed can amount to a marked departure from the standard of care of a prudent driver.

[30]         Clearly it is important to consider the context in which the speeding occurred. In M.K.M., the accused was involved in an accident which caused death on a busy highway in a built-up area of Mississauga. Before the accident, the accused had been driving aggressively and engaging in horseplay on the road with her co-accused. Those are markedly different facts than in the case at bar.

[31]         In the circumstances of this case the evidence does not satisfy me that the speeding by the defendant on July 2, 2011, amounted to dangerous driving under s. 249 of the Criminal Code. While no offence was charged under the Motor Vehicle Act, it is clear that the defendant committed the offence of speeding on that day. However, as with the other Motor Vehicle Act offences referred to, no evidence was presented to establish that speeding, in and by itself, is likely to cause serious bodily harm to a person.

[32]         While I do not want it to be taken from these reasons that I condone the behaviour of the defendant in operating the Ducati at high speeds and contrary to posted speed limits (for which he has incurred substantial penalties), I have concluded that the Director has not established that the Ducati is an instrument of unlawful activity as that term is defined in the CFA. Accordingly, an order forfeiting the Ducati to the government will not be made.

[33]         Costs are awarded to the defendant at Scale B.

“Bowden J.”