IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Civil Forfeiture (Director) v. Johnson, 2015 BCSC 1217

Date: 20150714

Docket: S130220

Registry: Vancouver

Civil Forfeiture Action in Rem Against $130,745.00 in Canadian Currency

and $2,600 in United States Currency seized on June 11, 2009

from 16960 86A Avenue, Surrey, British Columbia

and currently held by the

Seized Property Management Directorate of

Public Works and Government Services Canada (the “Money”)

and Its Fruits or Proceeds

Between:

Director of Civil Forfeiture

Plaintiff

And

The Owners and all Others Interested in the Money,

in Particular David Johnson and Jennifer Johnson

Defendants

Before: The Honourable Madam Justice Maisonville

Reasons for Judgment

Counsel for Plaintiff: D. Ryneveld, Q.C.

C. Hoy Counsel for Attorney General of British Columbia P. Ameerali

C. Drake Counsel for Defendant Jennifer Johnson: B.D. Vaze Counsel for Defendant David Johnson: M.J. Jackson Place and Dates of Hearing: Vancouver, B.C. June 1-3, 25, 2015 Written Submissions: June 12, 15, 22, 23 and July 2, 6 2015 Place and Date of Judgment: Vancouver, B.C. July 14, 2015

INTRODUCTION

[1] The Director of Civil Forfeiture (the “Director”) seeks forfeiture in these in rem proceedings of cash seized on June 11, 2009, during the course of a search of the defendants Mr. and Mrs. Johnson’s (the “Johnsons”) residence. It is currently being held by the Seized Property Management Directorate of Public Works and Government Services Canada. The cash seized consists of $129,820 in Canadian currency, which was found in a safe located in a bedroom of the Johnsons’ house (later opened at the police station), and $2,600 in United States currency and $925 in Canadian currency, which was found in the defendant Jennifer Johnson’s purse, which was also in the house.

[2] The Johnsons’ home was at 16960-86A Avenue in Surrey, British Columbia (the “Property”). The Property was held jointly by David Johnson and Anthony McCluskey. This matter as between Mr. McCluskey and the Director has been settled. The Johnsons were prosecuted for criminal charges; however, those charges have since been stayed for delay contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”) by Judge Ball (as he then was) of the Provincial Court of British Columbia. Shortly after the stay of the criminal charges, the Director commenced these forfeiture proceedings.

[3] The Johnsons then served notice seeking a constitutional remedy on the Attorney General of British Columbia (the “Attorney General”), who is represented in these proceedings. They allege that Charter breaches occurred during the police investigation and seek a remedy with respect to those Charter breaches.

APPLICATION BEFORE THE COURT

[4] In this application, the Johnsons apply pursuant to R. 12‑5(67) of the Supreme Court Civil Rules to bifurcate these forfeiture proceedings in order to have determined, first, whether there were Charter breaches which occurred during the police investigation and whether a remedy is available with respect to those Charter breaches and, following that, determination of a trial on the remainder of the forfeiture issues.

HISTORY OF THE PROCEEDINGS

[5] In August 2003, Mr. Johnson and Mr. McCluskey purchased the Property and the Johnsons then built a residence and resided there until it was sold.

[6] On June 11, 2009, the Surrey Royal Canadian Mounted Police (the “Surrey RCMP”) executed a search warrant on the Property in respect of a charge of theft of telecommunication (electricity) contrary to s. 326(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. During the course of the search, the Surrey RCMP located a safe in the Johnsons’ child’s room. The safe was seized and taken to the RCMP detachment. It was later opened and found to contain passports and approximately $129,820 in Canadian currency. Mrs. Johnson’s purse, which contained $925 in Canadian currency and $2,600 in United States currency, was also seized from the Property.

[7] The Surrey RCMP also located a hydroelectric bypass and evidence of a marihuana grow operation on the Property. In the basement, behind a heavy metal vault door, which was hidden behind a wine rack on rollers, were three hidden rooms containing a marihuana grow operation consisting of 276 marihuana plants in various stages of growth as well as 18 pounds of dried marihuana. There was also marihuana growing equipment, ballasts, lights, shrouds, fans, timers and other controlled substance usage, production, cultivation, and trafficking paraphernalia. The hydroelectric bypass was the power source for the marihuana grow operation, allowing electricity to be used without BC Hydro’s knowledge or compensation.

[8] The Johnsons were charged with production of marihuana and theft from BC Hydro. They brought an application for a Charter remedy pursuant to s. 11(b) and s. 24 due to delay. On March 12, 2012, Judge Ball found that the Johnsons had proven serious prejudice and ordered a stay of proceedings: R. v. Johnson, 2012 BCPC 214.

[9] The civil forfeiture action was then commenced by the Director on March 29, 2012. An examination for discovery of David Johnson was held in August 2013. All questions concerning criminal offences were objected to. The Director made a number of additional requests.

[10] The Johnsons brought an application for summary trial. The application was dismissed as being not suitable for summary trial by Mr. Justice Abrioux on December 27, 2013: British Columbia (Director of Civil Forfeiture) v. McCluskey, 2013 BCSC 2376.

[11] On May 16, 2014, Madam Justice Bennett refused leave to appeal the ruling of Abrioux J.: British Columbia (Director of Civil Forfeiture) v. Johnson, 2014 BCCA 268.

[12] On November 17, 2014, the Johnsons brought the instant application to bifurcate the civil forfeiture action such that the Charter issues could be decided prior to the hearing of the forfeiture action. Notice was served on the Attorney General on November 28, 2014.

LEGISLATIVE FRAMEWORK

[13] Rule 12-5(67) provides:

(67) The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[14] The relevant sections of the Charter are as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11. Any person charged with an offence has the right

…

(b) to be tried within a reasonable time;

…

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute

[15] Also of relevance is s. 6(1) of the Civil Forfeiture Act, S.B.C. 2005, c. 29:

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.

POSITION OF THE PARTIES

[16] The Johnsons submit that the issue of Charter breaches should be determined separate from and prior to the determination of the civil forfeiture application. Should the court find a Charter breach, the Johnsons would then seek a remedy pursuant to s. 24 of the Charter, resulting possibly in either exclusion of the impugned evidence or dismissal of the proceedings.

[17] It is argued that, in accordance with R. 12‑5(67), there is a compelling reason to bifurcate the proceedings to hear the Charter issues first, and that in so doing, inter alia, there will be a saving of time and thus convenience. Further, it would be possible to obtain earlier dates to consider the Charter issue and it is an issue that is conveniently heard separately. The Johnsons also rely on the comments of Madam Justice Saunders in Director of Civil Forfeiture v. Lloydsmith, 2014 BCCA 72, with respect to trial fairness.

[18] If this Court makes a bifurcation order, the Johnsons additionally take the position that any examination for discovery of the Johnsons should be restricted to matters relating to the Charter breaches until such a time as that portion of the trial is concluded.

[19] While the Johnsons initially alleged breaches of their ss. 7, 8, 9, 10 and 11(b) Charter rights, they advised the Court by way of written submissions that they will no longer be advancing breaches of s. 7 or s. 11(b). Consequently, this decision does not consider those sections of the Charter.

[20] As I understand the position of the Attorney General, it takes no position on this application if the trial is bifurcated to deal with the alleged ss. 8, 9 and 10 Charter breaches and if no remedy issues are to be determined until and if a breach is found. If, however, the Johnsons seek to have the court consider ss. 7 and 11(b) of the Charter, and/or to have a remedy enforced during the consideration of whether there were any Charter breaches, then the Attorney General’s position is that the trial should not be bifurcated to hear the Charter issue and all issues should be heard and determined together.

[21] The Director takes the position that that there are no extraordinary, exceptional or compelling reasons for bifurcation and that bifurcation would not result in savings of time or expense. This position is based largely on the Director’s arguments that Lloydsmith and Director of Civil Forfeiture v. Huynh, 2012 BCSC 740 are not binding authorities in regards to the bifurcation issue before this Court. It is also based on the Director’s arguments that s. 6 of the Civil Forfeiture Act allows the court to consider state conduct and so there is no need for a Charter remedy and that even where the Charter applies, it would be necessary for a court to consider the interrelationship between remedies available under s. 24 of the Charter and s. 6 of the Civil Forfeiture Act, an interrelationship that cannot be properly considered if the Charter and forfeiture issues are addressed separately.

[22] In the event that this Court orders bifurcation, the Director argues that examination for discovery should nonetheless proceed on all matters raised in the forfeiture application. It is submitted that a full evidentiary record is required before ss. 7 or 11(b) breaches or a s. 24 Charter remedy can be properly addressed. These issues, by necessity, raise questions about the Johnsons’ financial background. In the s. 11(b) criminal proceedings that came before Judge Ball, at which hearing a stay of proceedings was ordered, the Johnsons had in fact argued the impact the delay had wrought on their lives both emotionally and financially. The Director submits that examination for discovery on these subjects would similarly be necessary in the civil forfeiture context to have a fair hearing.

AUTHORITIES

[23] The issue of bifurcation was recently considered by this court in Huynh. In Huynh, Mr. Justice Schultes ordered bifurcation of the trial, with the first part of the trial to be the consideration of Charter matters and the second to be the hearing of the application for forfeiture. This decision was not appealed by the Director and it was referenced by Saunders J.A. for the B.C. Court of Appeal in Lloydsmith at paras. 14, 19.

[24] In Huynh, at para. 24, Schultes J. adopted Bramwell v. Greater Vancouver Transportation Authority, 2008 BCSC 1180, as one of the leading authorities on the issue of bifurcation under R. 12-5(67). In Bramwell at paras. 11-12, Madam Justice Allan held:

[11] There is ample authority for the proposition that an applicant must establish that there exist extraordinary, exceptional or compelling reasons for severance, and not merely that it would be just and convenient to order severance: MacEachern v. Rennie, 2008 BCSC 1064; Hynes v. Westfair Foods Ltd., 2008 BCSC 637; and Westwick v. Culbert, [1992] B.C.J. No. 2121.

[12] It is true that some recent cases have held that a judge’s discretion to sever an issue or issues is not restricted to “extraordinary or exceptional circumstances”: Nguyen v. Bains, 2001 BCSC 1130; Enterprising Minds Technology Inc. v. Lululemon Athletica Inc., 2006 BCSC 1168. However, there must be some compelling reasons to order severance, such as a real likelihood of a significant savings in time and expense.

[25] Summarized, Bramwell explained that extraordinary, exceptional, or compelling reasons for severance must be established in any application under R. 12-5(67) and that a real likelihood of significant savings in time or expense could amount to a compelling reason.

[26] Driving this consideration are also questions of efficiency and cost: see British Columbia (Minister of Forests) v. Okanagan Indian Band, 2008 BCCA 107, leave to appeal ref’d [2008] S.C.C.A. No. 222. Where there is likely to be minimal overlap on the issues sought to be severed, this usually provides the court with a prima facie basis to exercise the discretion to order that the issues be severed pursuant to R. 12‑5(67). In Okanagan Indian Band, Mr. Justice MacKenzie stated on behalf of the majority:

[21] The Province’s admission removes any requirement to hear evidence on the existence of an aboriginal right to harvest timber in the Cutblock for domestic purposes. The prospect of extensive evidence on overlapping issues of rights and title that prompted Sigurdson J. to refuse the first severance motion has been eliminated. The logging was for the purpose of building housing for members of the Okanagan community and within the aboriginal right as admitted. The Stop Work Order infringed that right. The only aboriginal rights issue remaining is whether the Province can justify the infringement in the exercise of a Forest Practices Code jurisdiction.

…

[25] I am satisfied that the disparity between the evidence now required to decide the remaining rights issue of justified infringement and the evidence required for a trial on title, and the minimal overlap, provided Sigurdson J. with a prima facie basis for the exercise of the discretion to sever the trial under Rule 39(29).

[27] Accordingly, the extent of evidentiary overlap is an important factor in considering if there is a prima facie basis to bifurcate, to be considered in the context of other factors demonstrating or refuting the existence of compelling reasons.

[28] Finally, the court in Lloydsmith at para. 22 stressed that of the factors to be considered the “preeminent consideration is the interests of justice”, as is discussed in more detail below.

THE PROPOSED ISSUES TO SEVER

[29] The Johnsons argue that they were subject to serious breaches of their ss. 8, 9 and 10 Charter rights. With respect to s. 8 and the search itself, it is argued that there was an incorrect date indicated on the warrant and that the search exceeded the scope of the warrant. With respect to the manner of the execution of the warrant, the Johnsons submit that having the Surrey RCMP draw their guns on Mr. Johnson as he travelled from the family home to the local Tim Horton’s at 7:30 in the morning, with his three-year old son in the car, was unnecessary in the circumstances.

[30] In respect of ss. 9 and 10 breaches, the Johnsons’ allegations include the fact that the Johnsons were not permitted to contact a lawyer at the scene and were detained without being provided with the reasons for the detention. It was only when they were later taken to the police station that they were allowed to exercise their right to counsel.

SUITABLE ISSUES FOR BIFURCATION

Application of the Charter to Civil Forfeiture Proceedings

[31] The parties before me spent much time arguing the distinction between the Director and the Surry RCMP. This appeared to be to underscore the distinction between these in rem proceedings as opposed to a criminal matter where unquestionably state conduct must comply with the Charter.

[32] The Director and the Attorney General relied upon the decision of Director of Civil Forfeiture v. Shoquist, 2011 BCSC 1199. In that case, the defendant had argued that the Director was inappropriately prosecuting an action which was tied to the denial of his s. 8 Charter rights. Mr. Shoquist had been acquitted on charges of producing and possessing a controlled substance for the purpose of trafficking on the basis that the trial judge had found that the RCMP officers engaged in the search had been involved in a trespass to make the observations that they had incorporated into their information to obtain the search warrant. Due to the trespass, the subsequent criminal proceedings found the search to be warrantless: Shoquist at para. 9. In the context of the civil forfeiture hearing, Mr. Justice Wilson held:

[41] There is nothing inherently abusive about the Director pursuing civil proceedings, based upon information received from others. The Director did not infringe or deny any Charter right held by Mr. Shoquist. It was the conduct of the R.C.M. Police members which denied the right. Therefore, it is the conduct of the R.C.M. Police members which must be examined in the abuse of process analysis.

[33] Wilson J. then noted that there had been a finding of an absence of bad faith on behalf of the officers and concluded:

[45] I find that civil proceedings, deriving their genesis from that conduct, does not “violate those fundamental principles of justice which underlie the community’s sense of fair play and decency”, or “contravene fundamental notions of justice [or] undermine [or “tarnish”] the integrity of the judicial process”.

[34] However, the compartmentalized approach set out in Shoquist has not been followed. Rather, the Charter has been applied in civil forfeiture proceedings and the issues that arise include bifurcation, notably as set out Huynh.

[35] In Huynh at para. 38, Schultes J. ruled that whether the initial criminal investigation giving rise to a remedy resulted from a Charter breach to the defendant has relevance in the context of civil forfeiture litigation. In that case, the RCMP had conducted an investigation under the Controlled Drugs and Substances Act, S.C. 1996, c. 19, in which a search warrant was executed at a residence and a marihuana grow operation involving 920 plants was discovered. In Huynh, the search warrant was grossly deficient such that Crown counsel directed a stay of proceedings. However, following the stay of proceedings and following the crown obtaining a restraint and management order for the property, the RCMP forwarded the information about its investigation to the Director.

[36] As in the case before this Court, the civil forfeiture defendant in Huynh applied to have the application for Charter remedies heard before the other trial issues. The remedies sought included the exclusion of evidence and a stay of proceedings.

[37] In Huynh, again as in the case before this Court, Shoquist was relied upon by the Director for the submission that there was nothing abusive in pursuing a forfeiture application, even where the evidence resulted from an invalid search warrant. Schultes J. distinguished Shoquist as follows:

[32] Counsel for the Director relies on the decision of [Shoquist], in which Mr. Justice R. D. Wilson concluded that there was nothing abusive about the Director proceeding with a forfeiture application based on the results of an invalid search warrant obtained by the RCMP, and that under the abuse of process analysis the RCMP’s conduct was not so egregious as to disentitle the Director to proceed. I note however that this decision was a ruling on the defendant’s application to strike the notice of civil claim as being an abuse in itself. It did not purport to rule on the admissibility of the evidence obtained by the invalid search in a civil proceeding.

[38] Schultes J. went on to conclude there was a real possibility that the outcome of the Charter applications could resolve the case entirely: Huynh at para. 42. He held that the case before him was consequently:

[42] ... one of those relatively uncommon cases that must have been envisioned by the framers of the rule, in which deciding one issue first offers benefits that significantly outweigh the presumptive inefficiency of litigating in slices.

[39] Lloydsmith is also a significant case in which the trial judge, Mr. Justice Leask, considered an application to bifurcate proceedings to allow certain Charter applications. In that case, the RCMP responded to a 9-1-1 call at Mr. Lloydsmith’s residence. Mr. Lloydsmith answered the door but did not consent to the RCMP officer’s entry into the residence. The officer arrested Mr. Lloydsmith for obstruction and, having “cleared” the obstruction, found a marihuana grow operation in the basement. After Mr. Lloydsmith was detained and taken to the police station, the officer sought and was issued a telewarrant and there was a subsequent search and seizure from the residence. No charges were laid.

[40] In his decision finding breaches of ss. 8, 9 and 10(b) of the Charter, Leask J. noted that he had considered and then granted applications to bifurcate and then trifurcate the Charter breach, remedy and forfeiture issues before him: Director of Civil Forfeiture v. Lloydsmith, April 2, 2013, Vancouver S111483 at paras. 1-2 (B.C.S.C.).

[41] In a decision that followed shortly afterwards, Leask J. ruled that an examination for discovery would not be permitted until after the s. 24 Charter remedy issue had been addressed: Director of Civil Forfeiture v. Lloydsmith, April 12, 2013, Vancouver S111483 at para. 5 (B.C.S.C.).

[42] Leask J.’s severance orders were subsequently affirmed on appeal. In Lloydsmith, Saunders J.A. for the court held:

[13] This case is one of several, perhaps more than several, now making their way through the Supreme Court of British Columbia. And it is not alone in being a claim of forfeiture against a person who has been neither charged nor convicted of a criminal offence. Accordingly it is a case in which challenges to police compliance with the Charter must be presented without the assistance of a Legal Aid funded lawyer. Yet the sophistication of the Charter issues makes it desirable that the individual is represented by counsel, which of course is very costly. Having to maintain a costly defence is a risk every person in the community is vulnerable to.

[43] Importantly, Saunders J.A. also noted the inherent imbalance between the individual civilian in forfeiture cases as against the state actors:

[13] … There is, however, an extra element in the civil forfeiture cases, and that is the jeopardy faced by a civilian, at risk of losing a great deal and at risk of being labelled for criminal behaviour. This jeopardy arises from evidence gained by police using their special authority but without the case ever having fed into the criminal proceedings stream, with the defendant now caught in a proceeding that requires presentation for cross-examination at an examination for discovery. All of this is allowed by the legislation. Given these very high stakes for the individual and the power difference between the parties, it is not surprising that there has been an assortment of applications seeking to challenge the legitimacy of the evidence gathering actions of the police, seeking to postpone discovery until that legitimacy has been determined, and seeking avenues for just redress where such activities have been found to be in violation of a person’s Charter rights.

[44] In Lloydsmith at para. 21, the Court of Appeal determined that the order to bifurcate stemmed from R. 5‑3, that is, orders that may be made at a case planning conference in chambers before the trial commences, which includes “authorizing or directing the parties of record to try one or more issues in the action independently of others”: R. 5-3(1)(p). However, the court also recognized that R. 12-5(67) is similarly available to trial judges: Lloydsmith at para. 19.

[45] The Court of Appeal then considered the criteria for bifurcation, which include the “preeminent consideration” of whether it is in the interests of justice to bifurcate, as well as convenience, efficiency, the presence or absence of prejudice, and trial fairness: Lloydsmith at para. 22. Saunders J.A. then held:

[23] A decision on bifurcation engages the discretion of the judge in the management of the trial process. In Logan v. Hong, 2013 BCCA 249, the deference owed to the trial court was explained this way:

[9] Whatever may be the source of authority for the making of the order, it is clear it was made in the management by the trial court of its own processes and involves the exercise of discretion. Accordingly, this court must approach the appeal with the requisite deference. It is well known that we may interfere with an order made in the exercise of discretion only if we consider the judge did not give weight to all relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, 88 D.L.R. (4th) 1; Harelkin v. University of Regina, [1979] 2 S.C.R. 561, 96 D.L.R. (3d) 14; and MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6. An error of principle, by definition, fits within the test established for interference with such an order.

[46] While Saunders J.A. in Lloydsmith identified some issues with respect to the process used in the court below, the Court of Appeal held that the standard set in Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, was not met and disallowed the Director’s appeal from the bifurcation of the trial: Lloydsmith at paras. 21, 25. Saunders J.A. remarked:

[38] I am mindful that this is a new area of litigation. The procedural questions before the trial court are not straight forward, engaging as they do important Charter issues in the context of civil litigation. It may be that there is no monolithic best way to deal with the process. Certainly at this stage, I cannot say the determinations before us demonstrate any error with which we should interfere at this time.

[47] The Director argues that neither Huynh nor Lloydsmith are decisions I must follow. I disagree. Mindful of the reasoning of Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 at 592 (B.C.S.C.), I find the decision of Schultes J. in Huynh to be a careful, thoughtful, and well-reasoned decision referenced by Saunders J.A. in Lloydsmith and a decision I should follow. Additionally, the reasoning of the Court of Appeal in Lloydsmith is authoritative, and I will follow the reasoning of the appellate court.

[48] I am satisfied that the Charter breaches of the Surrey RCMP, if any, would have relevance to the civil forfeiture action and that it would be appropriate for the court to consider them.

[49] As an aside, I note that the Director also took the position that s. 24 of the Charter is to be used by the courts in a civil forfeiture application only if there are gaps in the Civil Forfeiture Act. I do not agree. The Charter is the supreme law of the land and there is nothing that would, in the Civil Forfeiture Act or otherwise, require judges to construe provincial laws in such a way.

Effect of Earlier Summary Trial Application

[50] The Director and the Attorney General also argued that the reasoning of Abrioux J. dismissing the summary trial as set out in the Summary Trial Reasons clearly favoured a trial that was not bifurcated.

[51] Abrioux J. was considering this very case; however, the facts before him were substantially different than the case now at bar. Firstly, Mr. McCluskey is no longer before the Court, that part of the litigation having since resolved. Secondly, at that time, the issue before the Court was the appropriateness of summary trial proceedings and summary determination on all of the issues, including the remedy issues, and the Director’s argument that s. 6 of the Civil Forfeiture Act must be considered along with s. 24(1) of the Charter. It was not a bifurcation application. In the Summary Trial Reasons, Abrioux J. held:

[36] Secondly, whether there should be relief from forfeiture pursuant to s. 6 of the Civil Forfeiture Act involves an analysis by the court as to whether forfeiture “is clearly not in the interests of justice”. In addition, the Charter remedies sought by the applicants pursuant to s. 24(1) include both an exclusion of the evidence and dismissal of the actions. The court must be satisfied that these remedies are “appropriate and just in the circumstances”.

[37] It is not possible for me to determine whether these remedies are in the interests of justice or appropriate under the circumstances based on the evidentiary record as it stands before me.

[38] Even if I were to conclude that the Johnsons’ s. 8 Charter rights had been breached, that does not, as the applicants allege, of and by itself end the matter. Other factors may well have to be taken into account in deciding what is “in the interests of justice” or “appropriate and just in the circumstances”. These may include, at the very least:

· the defendants’ knowledge of the [marihuana grow operation] and their involvement, if any, in this activity; and

· McCluskey’s knowledge of the circumstances of the sale of the 86A Avenue Property and the timing of the purchase of the 62A Avenue Property.

[52] On the facts now before me, I do not consider that the prior summary trial application weighs against bifurcation. As noted, Mr. McCluskey is no longer a part of this litigation. Whereas Abrioux J. had before him a request to hear and determine all issues. Before this Court the first requested stage to be severed involves the consideration of only a Charter breach, and so does not require a consideration of interaction between s. 6 of the Civil Forfeiture Act and s. 24 of the Charter nor any issues of remedy. It may very well be that no Charter breaches are found by the court. Consequently, first to be heard logically is only a determination of whether there were in fact breaches of the ss. 8, 9 and 10 of the Charter. Due to these differences, I consider that the result of the summary trial application has little impact on the application before this Court.

Bifurcation Conclusions

[53] In accordance with the authorities summarized above, my task on this application is to consider whether there are extraordinary, exceptional or compelling reasons to bifurcate or a real likelihood of significant savings in time or expense: see e.g. Bramwell at paras. 11-12. I consider that there are compelling reasons to grant the requested bifurcation in this case.

[54] Firstly, I note that the consideration of potential Charter breaches involves an examination of state behaviour, whereas the consideration of the application of the Civil Forfeiture Act, would engage a different evidential inquiry aimed at the impact on the subject of the in rem proceedings. Therefore, different evidentiary concerns are raised by the issues sought to be bifurcated. This lack of evidentiary overlap gives rise to a prima case for severance as noted in Okanagan Indian Band at para. 25.

[55] In addition, I find that separating the ss. 8, 9 and 10 Charter breach issue from the issues raised by the interplay of s. 24 the Charter with ss. 6 and 7 of the Civil Forfeiture Act provides compelling reasons to bifurcate the trial. Resolving the interaction between these two sections, s. 6 of the Civil Forfeiture Act and s. 24 of the Charter, will likely require extensive legal argument and possibly factual considerations, and so increased time and costs, argument that will prove unnecessary if Charter breaches are not found. I recognize that in effect, a remedy bifurcating the breach issue may ultimately result in a trifurcation, wherein the court is called upon to consider the issues of breach, remedy, and forfeiture in turn. However, I consider that in this case, as was the case in Huynh, proceeding in stages will ultimately result in cost savings and enable this matter to get heard far more quickly and fairly than if all the issues were left to be decided together.

[56] Also, the Johnsons submit that should bifurcation not be ordered, they would request a voir dire on the admissibility of the impugned evidence in advance of trial. This practical matter is discussed in Huynh at para. 39, where Schultes J. noted that there is little meaningful difference between the two ways of proceeding. There is therefore little prejudice to the plaintiffs.

[57] Further, I consider that Saunders J.A.’s identification of the power imbalance in civil forfeiture cases also weighs in favour of bifurcation. Establishing the legitimacy of the evidence gathered in advance of a determination of the other issues is in the interest of justice, and I consider it to be a compelling reason on the facts of this case.

EFFECT OF THE BIFURCATION ON DISCOVERY

[58] I turn to the issue of the extent to which examinations for discovery should continue in advance of the court hearing the bifurcated Charter breach issue.

[59] In Huynh, as in the case at bar, there was also a request to hold any unrelated discovery or document disclosure in abeyance on the basis that it would be unfair to compel assistance for the Director’s case from potentially inadmissible fruits of the search: Huynh at para. 14. In Huynh, this matter was ultimately dealt with by consent; however, Schultes J. noted at para. 46 that:

[46] … I consider the concession by counsel for the Director that these orders should follow the making of the severance order sought by Ms. Huynh to be conclusive, but even in the absence of it I would have been satisfied that it is conducive to focused and economical litigation to put aside these inquiries, which can be time consuming and expensive, on matters extraneous to the Charter applications, until it is known whether the evidence of the search will be admitted and, if it will not, whether the Director intends to continue without it.

[60] On appeal in Lloydsmith, the Director argued, as in the case at bar, that all issues should be tried together and that the completion of examinations for discovery should not await completion of the first part of the trial. The court held that the examination for discovery issue was a ruling on the timing of the acquisition of evidence mid-trial and consequently was not properly before it on appeal: Lloydsmith at paras. 34-35. In so holding, the court characterized the discretion as to the timing of discovery as “a direction or ruling made in the management of the civil litigation process”: at para. 34.

[61] The Johnsons submit in written reply that where a case has been bifurcated limited discovery should be ordered pursuant to R. 7-2(18). Rule 7-2(18) provides the court with jurisdiction to order a limited scope of examination. The Director and Attorney General submit that the Johnsons’ raising of R. 7-2(18) is not appropriate reply. I find that while R. 7-2(18) was not strictly argued in initial submissions, the issue of limited discovery was explored before me.

[62] The Director argued that regardless of this Court’s bifurcation decision, full discovery is available to the Director, at this time, on all the issues to be addressed this trial. However, I consider that where the issue of a Charter breach has been bifurcated, the issue of a remedy for any potential Charter breach found and the remainder of the forfeiture issues raised are not as yet before the court. A consideration of the issues raised by ss. 8, 9 and 10 of the Charter would not by necessity require an examination for discovery in relation to the Johnsons’ personal or financial situation. As noted above, different factual inquiries are involved. Nor, if bifurcation is ordered, and the court is just considering whether there was a breach of ss. 8, 9 or 10 of the Charter, would it be necessary for the court to consider all the circumstances that would be applicable to a determination of a remedy under s. 24 of the Charter.

[63] Questions posed during examinations for discovery should relate to the matter in question: Forliti v. Woolley, 2002 BCSC 858 at para. 9. In the context of this civil forfeiture application, wherein Charter breaches are alleged, I agree with Schultes J.’s comments as excerpted above and find that it is more consistent with the principles of proportionality, efficiency and fairness to limit discovery to the Charter breach issues in this case.

CONCLUSION

[64] I find that there are compelling reasons to bifurcate this trial such that the court will consider the alleged ss. 8, 9 and 10 Charter breaches prior to the civil forfeiture trial. At this stage, I also consider it to be just and convenient to stay any examination for discovery on issues other than the Charter breaches as presented by the Johnsons. This is to be arranged amongst the parties. If the parties are unable to agree on an appropriate schedule for the examinations for discovery and/or are having difficulties with setting out the appropriate areas to be examined upon, they are free to contact the Registry within 60 days of these reasons and seek further guidance from this Court.

“Maisonville J.”