Director of Civil Forfeiture Plaintiff v. Stuart John Fischer and Ann Irene Jordan and, 2010 BCSC 568

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: British Columbia (Director of Civil Forfeiture) v.

Fischer, 2010 BCSC 568 Date: 20100427 Docket: 10-0696 (Previous: 8839) Registry: Victoria (Previous: Campbell River) An Action Under The Civil Forfeiture Act In Rem Against: The Land and Structures Situated at 1521 20 th Avenue, Campbell River, British Columbia, and Having a Legal Description of Parcel Identifier: 008-071-888, Lot 2, Block B, District Lot 66, Sayward District, Plan 1058 (the Property) Between: Director of Civil Forfeiture Plaintiff And Stuart John Fischer and Ann Irene Jordan and All Others Interested in the Property Defendants Before: The Honourable Mr.

Justice Punnett Reasons for Judgment Counsel for the Plaintiff: P. D. Ameerali Counsel for the Defendant, Mr. Fischer: H. J. Doehring Place and Date of Hearing: Victoria, B.C. February 15-16, 2010 Place and Date of Judgment: Victoria, B.C. April 27, 2010 [ 1 ] The plaintiff, the Director of Civil Forfeiture (the “Director”), seeks an interim order preserving the real property (Property) of the defendant Stuart John Fischer. The Director alleges that the Property is either the proceeds of unlawful activity or an instrument of unlawful activity.

The defendant does not dispute the Director’s right to a preservation order. However, he seeks to mortgage the Property in priority to the preservation order as security for legal fees to defend the claim. He claims that his inability to mortgage the Property is not in the interests of justice and infringes his s. 8 Charter right. Background [ 2 ] Mr. Fischer and Ann Irene Jordan are the registered owners, as joint tenants, of a residence in Campbell River, B.C. They purchased it for $72,000. The 2009 assessed value is $108,930.

Title is free and clear of any encumbrances except for a charge pertaining to undersurface rights. [ 3 ] Ms. Jordan has not responded to this application. During submissions, counsel advised that Ms. Jordan is Mr. Fischer’s former spouse and, pursuant to a separation agreement, has relinquished her interest in the Property, although no transfer of the Property has been registered with the Land Title Office. [ 4 ] As a result of approximately 24 reports to the police regarding concerns of drug activity at the Property, an undercover officer attempted to purchase drugs, specifically cocaine, at the Property.

The suspected dealer was Mr. Fischer. In June and July 2008, the undercover officer made two $40 purchases of cocaine from Mr. Fischer at the Property. [ 5 ] Subsequently, the RCMP executed a search warrant at the Property and seized scales, baggies and containers contaminated with cocaine. Mr. Fischer was found in the bathroom flushing the toilet. Next to the toilet were two plastic bags that had been ripped open and contained traces of cocaine.

The RCMP noted that surveillance video cameras had been placed to watch the front and back doors and the entry ways had been fortified. [ 6 ] Later in July 2008 during a traffic stop, Mr. Fischer was found in possession of cocaine, arrested and charged with

possession of cocaine for the purpose of trafficking. On September 29, 2008, he pleaded guilty to two counts of drug trafficking and one count of possession for the purpose of trafficking. [ 7 ] In June 2009, the RCMP conducted a further undercover operation and approached Ms. Kern, who they suspected was steering people to Mr. Fischer’s house to purchase drugs. She entered the Property with funds from the RCMP, was overheard speaking to someone whom they believed to be male, and returned with crack cocaine.

As a result, the RCMP obtained a further search warrant. [ 8 ] Execution of that search warrant resulted in plastic baggies, marihuana, crack cocaine, a crack pipe and drug transaction records being seized. A truck registered to Mr. Fischer was also found at the Property. On October 27, 2009, Mr. Fischer pleaded guilty to one count of trafficking in cocaine. [ 9 ] Mr. Fischer admits in his affidavit that the offences for which he was convicted were incidental to the Property but denies that the Property facilitated the offences.

He claims that he is unemployed, has no income and does not qualify for legal aid and that the Property is the only financial asset he has available to use to retain counsel to defend this action. He further asserts that his counsel will not accept a mortgage for his legal fees unless the mortgage has priority on title. He states that approximately six years ago he paid off the mortgage, all with funds acquired through lawful means.

Interim Preservation Orders Pursuant to the Civil Forfeiture Act [ 10 ] The Civil Forfeiture Act , S.B.C. 2005, c. 29, s. 3 [ Act ], allows the Director to apply for a court order forfeiting property that is either the “proceeds of unlawful activity” or “an instrument of unlawful activity” to the government.

Section 1 of the Act defines “unlawful activity” as including “an act or omission” that occurs in British Columbia and “at the time of occurrence, is an offence under

an Act of Canada or British Columbia”.

Section 1 also defines “proceeds of unlawful activity” and “instrument of unlawful activity”: “instrument of unlawful activity” means property that (

a) 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, or (

b) 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; … “proceeds of unlawful activity” means any of the following: (

a) the whole or a portion of an interest in property if the whole or the portion of the interest, as the case may be, is acquired directly or indirectly as a result of unlawful activity; (

b) the whole or a portion of an interest in property that is equivalent in value to the amount of an increase in value of the whole or the portion of the interest in property if the increase in value results directly or indirectly from unlawful activity; (

c) the whole or a portion of an interest in property that is equivalent in value to the amount of a decrease in a debt obligation secured against the interest or the portion of the interest in property, if the decrease in debt obligation results directly or indirectly from unlawful activity[.] [ 11 ]

Section 8 of the Act authorizes the Director to apply to court for an interim preservation order respecting the property at issue in the forfeiture proceeding. Pursuant to s. 8(5), the court must make an interim preservation order if it is satisfied that there is a serious question to be tried as to whether the property is a proceed or an instrument of unlawful activity, unless it is not in the interests of justice to do so.

The purpose of such an order is to ensure that the property’s value is preserved until the forfeiture action is resolved. [ 12 ] Once the Director has established that there is a serious question to be tried, the onus shifts to the defendant to show that an interim preservation order is not in the interests of justice: British Columbia (Director of Civil Forfeiture) v.

Mai Rainbow Wong (27 March 2009), Victoria 08/3303 at para. 14 (S.C.). [ 13 ] Under s. 16 of the Act , findings of fact and the discharge of any presumption “are to be made on the balance of probabilities.” Issues [ 14 ] The defendant raises the following issues: a. Is there a serious question to be tried? b. In the circumstances of this case, do the interests of justice require that the interim preservation order permit a first mortgage as security for legal fees? c. Does denying the defendant the right to mortgage the Property as security for legal fees infringe his s. 8 Charter right? d.

Because this is an action in rem , can the Property utilize itself to defend itself?

e. Is the form of the order sought too broad and does it fail to comply with s. 8 of the Act? Is There a Serious Question to Be Tried? [15] Given that Mr. Fischer purchased the Property 20 years ago and paid off the mortgage six years ago, the plaintiff has notestablished that there is a serious question to be tried as to whether the Property is proceeds of unlawful activity.

The material fails toshow on the balance of probabilities that unlawful activity occurred at the Property except during 2008 and 2009. [16] However, it is clear from the evidence that there is a serious question to be tried as to whether the Property is an instrument ofunlawful activity. I am satisfied that the Director has established on the balance of probabilities that the Property was being used as adrug house. The defendant has been convicted of and has not denied the unlawful activity. As such, it is possible that the Property was aninstrument of unlawful activity.

Is the Order Sought Not in the Interests of Justice? [17] The defendant submits that in considering the interests of justice both ss. 6 and 8 of the Act apply. However, s. 6 only appliesto the forfeiture of property. It does not apply to an application for an interim preservation order as no forfeiture has yet occurred. [18] Section 8(5) states that “[u]nless it is not in the interests of justice, the court must make an interim preservation order”. Thedefendant submits that the court can exempt a mortgage for legal fees from the preservation order on the basis that the interests of justicedemand it.

In this instance, he argues that such an exemption should be made because the property was not acquired or maintainedthrough unlawful activity, he has owned it for over 20 years, it is his home and he cannot afford to retain legal counsel otherwise. [19] The defendant relies on Ontario (Attorney General) v. 1140 Aubin Road, Windsor, at paras. 23-24 (Ont.S.C.J.), in which Pomerance J. cites the decision of Rady J. in Ontario (Attorney General) v. Nock, (Ont. S.C.J.): [23] …Rady J. held that the interests of justice are fundamentally concerned with proportionality.

As she stated in para. 63: It seems to me that in determining the interests of justice, a court is entitled to consider and weigh the impact of a forfeiture order on thestate, the respondents and on persons other than the respondents who will be affected by such an order. In my view, the interests ofjustice necessarily involve a consideration of proportionality. [24] Justice Rady considered the following factors in assessing the case before her: 1. How much equity had been built up in the property; 2. How long the respondent had lived at the property; 3.

Whether the respondent or the respondent’s family had developed any ties to the community; 4. Whether forfeiture would require a drastic lifestyle change, and whether it might affect employment opportunities; 5. Whether the respondent actually committed the offence; and 6. Whether the Crown could have applied for forfeiture of the property in a criminal proceeding, and, if so, whether the Crown didapply for forfeiture.

At para. 25, Pomerance J. agreed with Rady J. that “the ultimate question is whether, in all of the circumstances, forfeiture of property isa proportionate remedy.” [20] Both of the Ontario cases dealt with applications for forfeiture, not applications for interim preservation orders. The factorsthat must be considered in relation to forfeiture are different than those for interim preservation orders. Forfeiture involves the finaldisposition of property and if ordered, the defendant may no longer use the property in any manner. There may be times when issues ofproportionality arise on an interim application.

For example, a preservation order can require delivery of the property to the Director orrequire the disposition of the property. The consequences of these orders may be similar to the consequences of a forfeiture order. On theother hand, it is my view that on most applications for interim preservation orders proportionality, beyond that addressed by the factorsenumerated by the plaintiff below, is not relevant. [21] Based on British Columbia (Director of Civil Forfeiture) v.

Angel Acres Recreation and Festival Property Ltd., 2009 BCSC322 at paras. 214-229, the plaintiff claims that the court must determine the “interests of justice” on a case-by-case basis taking intoconsideration factors such as: a. the plaintiff’s interest in preserving the property; b. the defendant’s interests in possessing and using the property; c. the interests of any uninvolved interest holders in ensuring that their interests in the property are protected; d. society’s interest in protecting individual property rights; e. the purposes of the Act; and f. the nature and effect of the order requested. [22] Here, the plaintiff has an interest in the Property that is contingent on the Director’s success in the forfeiture action; thus the

plaintiff has an interest in preserving the full value of the Property. As it is the defendant’s home, he has an interest in occupying theProperty until a final determination is made. The preservation order would not affect that right. While the defendant may wish to use theProperty to secure legal counsel, that is at odds with the purposes of the Act. To grant such an exemption would allow the defendant todeplete the asset that is the subject of the litigation.

The clear intent of s. 8 is to ensure that defendants cannot dispose of or otherwiseaffect the subject property so that its value is diminished and the forfeiture action becomes moot or not viable. Thus it would not be in theinterests of justice to allow a mortgage in priority to the preservation order. [23] Regardless, s. 8(5) only permits the court, in the interests of justice, to not make an interim preservation order.

It does notempower the court, when the conditions for a preservation order are met, to abrogate or limit the extent of the property to which theorder applies. [24] The defendant refers to s. 8(3)(

f) and submits that it allows a preservation order to only apply to a portion of an interest in theproperty. That argument however ignores ss. 1 and 3 of the Act. The phrase a “portion of an interest in property” only applies to ordersrespecting portions of property that are proceeds of unlawful activity. It does not refer to the court only granting an order with respect to aportion of a larger property all of which was the proceeds of unlawful activity. Nor is it used in conjunction with property that is aninstrument of unlawful activity.

As I have already determined, there is no serious question concerning whether the property was aproceed of unlawful activity, only whether it was an instrument of unlawful activity. Therefore, any interim order must apply to theentire property. [25] In the alternative, the defendant submits that s. 8(3)(

g) of the Act, which states that the court may make “any other order thatthe court considers appropriate in the circumstances”, permits the court to authorize the mortgage. I do not accept that submission.Section 8(3) lists “orders for preservation of property” and subparagraph (

g) is part of that list. As such, any order made pursuant to itmust not be inconsistent with that intent. A mortgage, which diminishes the Property’s value, would be contrary to that intent. [26] It is significant as well that the Legislature has chosen not to provide for legal fees payable from the property as is the case inthe Ontario Civil Remedies Act, 2001 S.O. 2001

Chapter 28 s.10. [27] Additionally, the defendant, in effect, is asking the court to supplant the priority schemes of both the Act and the Land TitleAct, R.S.B.C. 1996, c. 250 [LTA], which grant the Director a priority against any subsequent charge holders.

Section 23 of the Act allowsthe Director to file a notice with the land title office that has the same effect as a certificate of pending litigation registered under theLTA; the Director has done this. The registrar under the LTA must register the notice so long as it is filed in the prescribed manner andthe fee is paid. Under s. 31(

a) of the LTA, once a certificate of pending litigation has been registered, that claim, if it is subsequentlyestablished, takes priority over any subsequent registered charges or claims. As well, once a certificate of pending litigation has beenregistered, s. 216(1) of the LTA (subject to s. 216(2) prohibits any other charge from being registered until the certificate is cancelled.Pursuant to s. 7(a)(

i) of the Act, if a forfeiture order is made, it will be effective as of the time the notice under s. 23(1) was filed and theDirector will recover the interest in the property that existed at that time. Thus, granting a mortgage priority at this point would not onlyfrustrate the intent of the LTA and the Act, it would violate their provisions. [28] The inherent jurisdiction of the court cannot assist the defendant in these circumstances. As noted in College Housing Co-operative Ltd. v.

Baxter Student Housing Ltd., (SCC), [1976] 2 S.C.R. 475 at 480, 57 D.L.R. (3d) 1: In my opinion the inherent jurisdiction of the Court of Queen’s Bench is not such as to empower a judge of that Court to make an ordernegating the unambiguous expression of the legislative will. The effect of the order made in this case was to alter the statutory prioritieswhich a court simply cannot do. See also Canadian Imperial Bank of Commerce v.

Wildflower Productions Inc., 2001 BCCA 159, 87 B.C.L.R. (3d) 1 at para. 12. [29] I pause to note that s. 216(2) of the LTA allows a charge to be registered if the applicant elects to proceed to registrationsubject to the final outcome of the proceeding and authorizes the registrar to register the charge subject to the certificate of pendinglitigation. The defendant can mortgage the Property to secure legal fees, just not in first position on title.

Does the Order Infringe the Defendant’s s. 8 Charter Right? [30] The defendant argues that because the statute authorizes the seizure of property, it is subject to s. 8 of the Canadian Charterof Rights and Freedoms. He submits that refusing his request to mortgage the property will effectively deny him access to counsel and,thereby, infringe his s. 8 Charter right. [31]

Section 8 of the Charter states, “Everyone has the right to be secure against unreasonable search or seizure.” [32] In my opinion, the defendant’s submission is misconceived. Firstly, the plaintiff’s claim is an in rem claim against propertyand the Charter does not protect property rights. Secondly, an interim preservation order is not a seizure. Thirdly, even if the defendant’sCharter rights were engaged, there is no right to counsel in such matters. [33] In the early Charter decision of Becker v.

Alberta (1983), 1983 ABCA 161 , 148 D.L.R. (3d) 539 at 545, 45 A.R. 37(Q.B.); aff’d (1983), 148 D.L.R. (3d) 546, 45 A.R. 36 (C.A.), the court held: I conclude that the word “seizure” in s. 8 does not encompass real property rights because s. 7 does not provide a right to the enjoymentof property. Thus, expropriation by a government agency was not a seizure under s. 8. [34] Serrano v. Canada (1992), (ON SC), 91 D.L.R. (4th) 747 at 749-51, 8 O.R. (3d) 673 (Gen. Div.),considered s. 8 of the Charter in relation to restraining orders made under the “Proceeds of Crime” part of the Criminal Code:

I, however, reject the submission that a restraint order constitutes a seizure. The essence of a seizure under s. 8 of the Charter is the"taking" of a thing from a person by or pursuant to public authority without the person's consent: see R. v. Dyment (1988), (SCC), 55 D.L.R. (4th) 503, 45 C.C.C. (3d) 244, [1988] 2 S.C.R. 417, 66 C.R. (3d) 348. In the first place, a restraint order does not constitute a "taking" of property. At most, a restraint order constitutes a temporary restrictionon the full rights of alienation available to property holders.

In this regard, I note that Canadian courts have uniformly ruled that even theforfeiture of property does not constitute a seizure of property under s. 8 of the Charter: see R. v. Munn (1990), (NLSC), 54 C.C.C. (3d) 397, 23 M.V.R. (2d) 118, 82 Nfld. & P.E.I.R. 296 (Nfld.S.C.), and R. v. Jim Pattison Industries Ltd. (1985), (FC), 3 C.P.R. (3d) 9, [1984] 2 F.C. 954, 13 C.R.R. 339 (T.D.). Obviously, if the forfeiture of property does not constitute aseizure, the mere restraint of use of property, being a lesser restriction of property rights, likewise does not constitute a seizure.

In the second place, a restraint order in no way interferes with the right of privacy which is the primary value served by s. 8 of the Charter: see Hunter v. Southam Inc. (1984), (SCC), 11 D.L.R. (4th) 641, 14 C.C.C. (3d) 97, 2 C.P.R. (3d) 1, [1984] 2S.C.R. 145, 41 C.R. (3d) 97. In this regard, I adopt the insightful observation of Mr. Justice Joyal that "s. 8 is designed primarily toprotect the privacy interests of individuals and affords protection to property only where that is required to uphold the protection ofprivacy": see R. v.

Porter (1989), (FC), 48 C.C.C. (3d) 252 at p. 265, [1989] 3 F.C. 403, 40 C.R.R. 263 (T.D.). I conclude that a restraint order under s. 462.33 of the Criminal Code does not engage s. 8 of the Charter since a restraint order does notinvolve a taking of property and does not involve an invasion of privacy.

No private information about the property is obtained bygovernment officials by reason of the order. … At most, the property holder is restricted in the full use of the property, but no privacy interest is affected by the restraint order. … It is accepted without reservation that s. 7 of the Canadian Charter of Rights and Freedoms does not guarantee a right not to be deprived of property (see R. v.

Robson (1985), (BC CA), 19 D.L.R. (4th) 112 at p. 114, 19 C.C.C. (3d) 137,(B.C.C.A.)), nor does s. 8 of the Charter (see Re Becker and the Queen in right of Alberta (1983), 1983 ABCA 161 , 148 D.L.R.(3d) 539, 27 L.C.R. 321, 9 C.R.R. 192 (Alta. C.A.)). [35] This judgment was applied in Brazier v. Vancouver (City), (B.C.S.C.), aff’d (1997), (BC CA), 154 D.LR. (4th) 186, 46 B.C.L.R. (3d) 372.

At para. 13, Justice Saunders (as she then was) defined a seizure as occurring “when aperson is deprived, without his or her consent, of the right to possess an item.” Similarly, the Court of Appeal at para. 16 defined aseizure under s. 8 of the Charter as “the taking hold by a public official of a thing belonging to a person against the person’s will”. [36] In my view, an interim preservation order under the Act is not a seizure because the defendant continues to possess theProperty. At most, it restricts the use of the defendant’s Property.

As a result, the granting of an interim preservation order is not subjectto s. 8 of the Charter. [37] Even if the defendant’s Charter rights were engaged, there is no general right to counsel. In British Columbia (AttorneyGeneral) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873 at paras. 23-25, the Supreme Court of Canada held: 23 The issue, however, is whether general access to legal services in relation to court and tribunal proceedings dealing with rightsand obligations is a fundamental aspect of the rule of law. In our view, it is not.

Access to legal services is fundamentally important inany free and democratic society. In some cases, it has been found essential to due process and a fair trial. But a review of theconstitutional text, the jurisprudence and the history of the concept does not support the respondent’s contention that there is a broadgeneral right to legal counsel as an aspect of, or precondition to, the rule of law. 24 The text of the Charter negates the postulate of the general constitutional right to legal assistance contended for here. It providesfor a right to legal services in one specific situation.

Section 10(

b) of the Charter provides that everyone has the right to retain andinstruct counsel, and to be informed of that right “on arrest or detention”. If the reference to the rule of law implied the right to counsel inrelation to all proceedings where rights and obligations are at stake, s. 10(

b) would be redundant. 25

Section 10(

b) does not exclude a finding of a constitutional right to legal assistance in other situations.

Section 7 of the Charter,for example, has been held to imply a right to counsel as an aspect of procedural fairness where life, liberty and security of the person areaffected: see Dehghani v. Canada (Minister of Employment and Immigration), (SCC), [1993] 1 S.C.R. 1053, at p.1077; New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46. But thisdoes not support a general right to legal assistance whenever a matter of rights and obligations is before a court or tribunal. Thus in NewBrunswick, the Court was at pains to state that the right to counsel outside of the s. 10(

b) context is a case-specific multi-factored enquiry(see para. 86). [38] A further problem with the defendant’s argument is that it is founded on the assumptions that he can only obtain a fair trialwith the assistance of counsel and that he cannot retain counsel without access to the asset in question. The only evidence provided bythe defendant are the bald assertions that he is unemployed, that he can only retain counsel by mortgaging his home and that, because theAct contains complex legal issues, without legal representation the Crown’s success is guaranteed. This is insufficient.

There is noevidence that the defendant has tried to retain counsel using other means or that he has attempted to obtain employment or to secure aloan from family or friends. The defendant could also act for himself. Self-representation is not unusual and does not inevitably meanthat any of the defendant’s Charter rights will be infringed or, as submitted by the defendant’s counsel, that “without the benefit of legalrepresentation, the Act guarantees the Crown’s success”.

In any event, the defendant has not placed evidence before the court that hecannot effectively present his case. [39] For these reasons, I reject the defendant’s submissions that s. 8 of the Charter applies and that the interests of justice requirean order allowing him to mortgage the Property in priority to the preservation order. Can the Property Utilize Itself to Defend Itself?

[ 40 ] The defendant argues, although not vigorously, that because this is an action in rem , the action is against the Property alone. It follows that the Property therefore should be responsible for defending itself against the allegations made by the Applicant in this proceeding. [ 41 ] The defendant cited no authorities in support of this argument. [ 42 ] This argument has no merit. Property is inanimate and as a result has no legal status or rights. It does not have an interest in itself. It cannot own itself. Such status or rights belong to those with an interest in the property, not to the property itself.

Although this is an in rem action only those with an interest in the property have an interest in the litigation. Is the Order Too Broad and Does It Comply with s. 8 of the Act ? [ 43 ] The defendant submits that the form of order sought by the plaintiff is too broad and fails to comply with s. 8 of the Act . He specifically objects to those portions of the order which place a positive duty on him to insure and maintain the Property while it is subject to the preservation order. The defendant refers to British Columbia (Director of Civil Forfeiture) v.

Onn , 2009 BCCA 402 , 312 D.L.R. (4 th ) 739. [ 44 ] I note that in Onn at para. 32 , the court found the defendant could be required “to maintain the property in the same condition it was in on the date the Director obtained the order.” At para. 38 , the requirement that the defendant insure the property was found to be an appropriate provision and consistent with the purposes of s. 8(f)(ii) of the Act .

In my opinion, most of the provisions in the proposed order are similar to the usual covenants found in most mortgage documents and, for the reasons in Onn , are appropriate provisions. [ 45 ] However, where necessary, I have amended the proposed order to comply with Onn. I have also deleted the provisions relating to rental of the property. The property is currently occupied by the defendant. The proposed accounting and reporting requirements for any rental income are complicated and “disproportionate to any potential benefit” ( Director of Civil Forfeiture v. Wong , 08-3303, Victoria Registry, Humphries, J.).

In addition, the Director has not sought occupational rent, yet, if the owner has to move and rent the property they seek access to those funds. In my view it is premature to make an order respecting potential rents. This would likely be more appropriately dealt with pursuant to s. 8(3)(

c) of the Act by the appointment of a receiver manager. In the event the property is rented the Director is at liberty to apply. Conclusion [ 46 ] I therefore make the following order: 1. This order is effective on pronouncement and remains in effect until further order of this Court or final disposition of this action. 2.

Any person claiming an interest in the land and structures situated at 1521 20th Avenue, Campbell River, British Columbia and having a legal description of Parcel Identifier 008-071-888, Lot 2, Block B, District Lot 66, Sayward District, Plan 1058 (the “Property”) is at liberty to apply to vary this order on seven clear days notice to the plaintiff Director of Civil Forfeiture (the “Director”), such notice to be by facsimile to 250-953-4348, by electronic mail to AGLSBCivilForfeiture@gov.bc.ca or by delivery to 1001 Douglas Street, in the City of Victoria, to the attention of Johnny Van Camp, counsel for the plaintiff. 3.

Except as provided for in this order, no party and no person with notice of this order may: a. dispose of, or deal with, any interest in the Property, or b. cause, agree to or allow the extension or increase of any indebtedness pursuant to any existing mortgage, charge or other encumbrance in regard to the Property. 4. No party and no person with notice of this order may cause, allow, agree to or facilitate damage to the Property or any fixture attached to the Property in such a way as to reduce the value of the Property. 5.

Nothing in this order shall be construed so as to affect the priority of registration of the following instruments registered against the title to the Property. Charge Number 46116G, registered against the Property to the following persons: a. Ernest Hancock Nunns; b. Lawrence William Nunns; c. Annie Caroline Nunns; and d. Frank Nunns. 6. Subject to this order, the defendant Stuart John Fischer (the “Registered Owner”) shall continue to enjoy his ordinary rights to use and possession of the Property pending the disposition of this action. 7.

The Registered Owner must: a. refrain from using the Property to traffic in cocaine or to cultivate or traffic in any other controlled substance contrary to the Controlled Drugs and Substances Act ; b. advise the Director on becoming aware that any other person may be using the Property to traffic in cocaine or to cultivate or traffic

in any other controlled substance contrary to the Controlled Drugs and Substances Act ; c. maintain the Property in the same condition it is in on the date of this order subject to normal wear and tear; d. pay all taxes and levies associated with ownership, use and occupation of the Property; e. pay all charges for utilities which if unpaid form a charge on the property, including, where applicable, charges for power, water, sewage, gas and refuse collection and disposal; f. purchase and maintain in effect a policy of insurance against all insurable risks of physical loss or damage to the structures on the Property (to a limit of not less than full replacement value of the structures) (“policy of Property insurance”); and g. purchase and maintain in effect a policy of insurance against all insurable risks of liability arising from the ownership, use or occupation of the Property (to a limit of not less than $2 million) (collectively, the “Registered Owner’s duties”). 8.

Proceeds of any payment under any policy of Property insurance, less whatever is required to be paid to a mortgagee (the “net property insurance proceeds”), must be paid into court. 9.

Providing the Director does not do so more than monthly, the Director may give notice to the Registered Owner that the party intends to inspect the Property, in person or by agent, at a date and time between 8 a.m. and 9 p.m. and not more than one week and not less than 72 hours after notice, and the Registered Owner must, subject to the Residential Tenancy Act : a. permit the inspection; b. provide for access; and c. if the Property is tenanted under the Residential Tenancy Act , provide notice to the tenant in accordance with the terms of the Residential Tenancy Act. 10.

The Registered Owner may, subject to the terms of this order, offer the Property for sale, by private sale, free and clear of all encumbrances of the parties subsequent to the filing of the Director’s notice of commencement of proceedings, but subject to the reservations, provisos, exceptions and conditions expressed in the original grant(

s) from the Crown. 11. The Registered Owner has exclusive conduct of the sale and may list the Property with one or more licensed real estate agents or real estate firms for sale by way of either general, exclusive or multiple listing, and the Registered Owner may pay the real estate agent(

s) or firm(

s) who may arrange the sale of the Property commission of not more than 7% of the first $100,000 and 2½% on the balance of the gross selling price without leave of the court. 12. The Property must be sold for a price not less than that required to pay: a. the taxes, penalties, arrears of taxes and interest on arrears of taxes owing in respect of the Property and premises on the Property; b. the costs and expenses of the sale, including real estate commission; c. all monies properly owing under any mortgage(s) (the “Adjustments”). 13.

The Registered Owner must provide notice of the terms of the sale to the parties and all other persons with a registered interest in the Property or with an unregistered interest in the Property known to the Registered Owner. 14. The Registered Owner may complete the sale if all parties or their solicitors of record agree in writing or if approved by the court. 15. Upon completion of a sale, the sale price less the Adjustments (the “net proceeds”) must be paid into court. 16.

If there is any dispute between any parties regarding the amount of any monetary amount referred to in this order, there shall be an accounting held by a Master or a Registrar, and the results of the accounting may be certified without further order. 17. This order may be lodged with the Registrar of the Land Title Office for the Land Title District (“the Registrar”) in which the Property is located pursuant to s. 284 of the Land Title Act, R.S.B.C. 1996, c. 250 . 18.

As part of the completion of a sale agreed in writing by all the parties or their solicitors of record or by further order, the Director shall cause to be provided to the Registrar a form of cancellation of a notice referred to in s. 23 of the C ivil Forfeiture Act in the form required by s. 5(3) of the Civil Forfeiture Regulation (the “cancellation form”). 19. Upon the receipt of the cancellation form, the Registrar shall cancel the Director’s notice of commencement of proceedings and discharge this order from title to the Property.

The Registrar shall not otherwise discharge this order from title without further direction from the court. 20. Monies paid into court pursuant to this order, including the net property insurance proceeds and the net proceeds of sale, are restrained to the same extent as the Property and are subject to forfeiture pursuant to the Civil Forfeiture Act as if the monies are the Property.

“R. Punnett, J.”