Case information

Constitutional law — Division of powers — Statutory Interpretation — Evidence — Provisions of a provincial law providing for forfeiture of instruments of unlawful activity — Director seeking forfeiture of three Hells Angels’ clubhouses as being instruments of unlawful activity — Whether the laws that authorize civil forfeiture of instruments of unlawful activity under British Columbia’s Civil Forfeiture Act are ultra vires the province — What is the correct interpretation of the scope of “instruments of unlawful activity” as defined in the Civil Forfeiture Act? — Whether an appellate court hearing a civil case exceeds its role and causes unfairness by reframing the issues in a manner unsupported by the pleadings, re-interpreting the law foundational to the case, finding its own facts and applying them to a new theory advanced on appeal — Civil Forfeiture Act, S.B.C. 2005, c. 29.

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The Director of Civil Forfeiture sought the forfeiture of three Hells Angels’ clubhouses pursuant to the Civil Forfeiture Act (“CFA”) on the basis of the allegation that the clubhouses would, in the future, likely be used as instruments of unlawful activity. The applicants provided a defence at trial and challenged the constitutionality of the instruments of unlawful activity provisions of the CFA on the basis that those provisions are ultra vires the legislative authority of the province.

The trial judge held that the provisions of the CFA about property that has been used to engage in unlawful activity (i.e. past use) were intra vires the province, but the provisions about property that was likely to be used to engage in unlawful activity (i.e. future use) were ultra vires the province because their dominant purpose and effect was to punish criminal propensity and was therefore in relation to criminal law. On the application for forfeiture, the trial judge concluded that the Director had not proven that one or more of the clubhouses was in the future likely to be used as an instrument of unlawful activity and dismissed the Director’s claims.

On appeal, the Court of Appeal allowed the Attorney General’s appeal and held that that future use prong of unlawful activity was intra vires the province. It also allowed the Director’s appeal and ordered forfeiture of the clubhouses. It held that the trial judge erred in his interpretation of the phrase “property that is likely to be used to engage in unlawful activity,” and that he committed several errors in aspects of his fact-finding process in relation to the evidence relevant to the use of the clubhouses. Absent error, the trial judge should have taken account of certain evidence and relied on certain inescapable inferences. When these additional findings were considered along with the findings of the judge that were unchallenged, the inference was inescapable that the clubhouses were likely to be used in the future as they had been in the past: to enhance and facilitate their members’ ability to commit unlawful acts.