Director of Civil Forfeiture Appellant (Plaintiff) v. The Owner and all Others Interested in the Vehicle and/or the Money,, 2024 BCCA 10

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: British Columbia (Director of Civil Forfeiture) v.

Conrad, 2024 BCCA 10 Date: 20240112 Docket: CA48928 Between: Director of Civil Forfeiture Appellant (Plaintiff) And The Owner and all Others Interested in the Vehicle and/or the Money, in Particular, Jason Thomas Howard Conrad, Eva Louise Reeve, Michael Alexander Ross, and Derek James Grandison Respondents (Defendants) Before: The Honourable Madam Justice Saunders The Honourable Justice Griffin The Honourable Madam Justice Horsman On appeal from: An order of the Supreme Court of British Columbia, dated February 8, 2023 ( Director of Civil Forfeiture v. Conrad , 2023 BCSC 185 , Vancouver Docket S215200).

Counsel for the Appellant: A.D. Gay, K.C. N.E. John K.K. Guest Counsel for the Respondent, Derek James Grandison: B.R. Anderson Place and Date of Hearing: Vancouver, British Columbia December 14, 2023 Place and Date of Judgment: Vancouver, British Columbia January 12, 2024 Written Reasons by: The Honourable Justice Griffin Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice Horsman

Summary: The Director of Civil Forfeiture appeals from an order of a chambers judge, granting an application for severance that allows Charter issues to be heard before the remainder of the trial. The Director sought forfeiture of approximately $62,000 in cash seized at a traffic stop. The respondent claimed an interest in the cash. He alleged a breach of his Charter rights during the course of the traffic stop and seizure of the cash.

The chambers judge granted the respondent’s application to sever the issue of whether his Charter rights were breached by police, and if so, what remedies should result from that breach. The Director also appeals the judge’s order postponing discovery of the respondent except with respect to the Charter issues. Held: Appeal dismissed. These types of discretionary decisions dealing with the management of a trial are entitled to deference. The chambers judge did not err in principle.

The judge was not required to determine that a dispositive Charter remedy was likely, and did not err in concluding that such remedies were arguable and weighed in favour of severance. The judge also did not err in principle in postponing discovery, as his order allowed discovery on Charter issues. However, if the parties disagree as to the scope of discovery, they should seek clarification in the trial court. It was

implicit in the judge’s reasoning that he considered proceeding on all issues at once would be less efficient and it cannot be said that he failed to consider a relevant factor. Table of Contents Paragraph Range Introduction [ 1 ] - [11] Background [12] - [32] Chambers Decision [33] - [47] Grounds of Appeal [48] - [48] Standard of Review [49] - [53] Severance Analysis [54] - [163] i. Civil Rules [60] - [68] ii. General Jurisprudence on Severance [69] - [101] iii. Context of Civil Forfeiture Severance Cases Compared to Other Civil Proceedings [102] - [118] Charter Rights are at Issue [105] - [118] iv.

The Lloydsmith Decision [119] - [142] v. Did the Chambers Judge Err in Principle in Granting the Severance Application [143] - [158] vi.

Proper Approach to Severance of Charter Issues in Civil Forfeiture Cases [159] - [163] Postponement of Discovery Analysis [164] - [185] Did the Judge Fail to Consider Relevant Factors in the Efficiency Analysis? [186] - [190] Disposition [191] - [191] Reasons for Judgment of the Honourable Justice Griffin: Introduction [1] The appellant, Director of Civil Forfeiture (the “Director”), appeals an order granting severance of Charter issues and postponement of discovery in a civil action brought by the Director for the forfeiture of property alleged to be proceeds of unlawful activity, pursuant to the Civil Forfeiture Act, S.B.C. 2005, c. 29 [ CFA ]. [ 2 ] The respondent, Derek Grandison, claims an interest in $59,685 cash found in a backpack and $2,365 cash held in his wallet.

The money was seized by the Surrey RCMP Gang Enforcement Team (“RCMP”) after a traffic stop and search of the 2019 Chevrolet Corvette (the “Vehicle”) Mr. Grandison was driving. [ 3 ] The RCMP also seized the Vehicle and it too is the subject of the forfeiture proceedings. Mr. Grandison does not claim an interest in the Vehicle but the defendant Ms. Reeve claims she purchased it using legitimate funds. [ 4 ] Mr.

Grandison alleges that the RCMP officers who conducted the traffic stop and then the search and seizure committed numerous breaches of his rights guaranteed under the Charter of Rights and Freedoms , and also violated the Charter rights of the other occupants of the Vehicle. [ 5 ] Mr. Grandison brought an application for a severance order so that the trial would first concern the issue of whether his Charter rights were violated by the RCMP and any resultant remedy for these breaches, as well as an order postponing his discovery and document production, except on the Charter issues.

The order was granted by Justice Schultes in reasons indexed at 2023 BCSC 185 . Since the matter below is indexed using Mr. Conrad’s name, I will refer to it as the “ Conrad Chambers Decision ”, even though the present appeal is brought by Mr. Grandison alone. [ 6 ] A companion appeal, CA49208, Liu v. British Columbia (Director of Civil Forfeiture) , 2024 BCCA 11 (the “ Liu Appeal ”) was heard in succession to the present appeal, with reasons to be released concurrently with the present judgment .

In that case, Justice Chan refused Tiantian Liu, Qin Wu and Bin Wu’s application for severance of Charter issues and postponement of discovery, in reasons indexed as 2023 BCSC 1007 (the “ Liu Chambers Decision ”). [ 7 ] These types of orders in civil forfeiture cases have become known as bifurcation orders, which implies that the trial of an action is divided into two parts. However, sometimes a severance order may result in more than two stages of a trial.

For example, the court may first determine the issue of whether the Charter was breached by a state actor in relation to the seizure of one defendant’s property before determining, as a second stage, remedies for any Charter breach. This entire process would take place before the rest of the issues are determined.

While the cases use the term bifurcation and severance interchangeably, and often as including the notion of postponement of discovery to match the issues that have been ordered to be tried first, I will use the term severance. [ 8 ] In the present appeal, the Director contends that the chambers judge applied too low a threshold for granting a severance order and a postponement of discovery order.

The Director maintains that these orders should be granted only exceptionally, and that a precondition of granting such an order should be that the defendant applicant must establish that there is a “real likelihood” that a Charter remedy will be granted that would dispose of the case. [ 9 ] Conversely, in the Liu Appeal , the appellants argue that the chambers judge took too stringent an approach to granting severance and erroneously predetermined the question of Charte r breaches.

[ 10 ] In my view, the different results in the underlying chambers orders that are the subject of these two companion appeals do not reveal any inconsistency in approach, but rather demonstrate that these types of orders are highly discretionary and depend on the best assessment by the chambers judge as to what is a proportionate and fair way to manage the trial of an action in the particular circumstances of each case. [ 11 ] For the reasons that follow, I agree with Mr.

Grandison that the chambers judge did not err in ordering severance of the issues regarding Charter breaches and Charter remedies and ordering postponement of his discovery obligations until the determination of these issues. However, the parties may need to seek clarification from the trial court regarding their differences concerning the scope of his discovery as it pertains to Charter remedies. Background [ 12 ] The background facts are set out in the Conrad Chambers Decision and affidavits filed on the application.

The RCMP officers’ evidence regarding the traffic stop differs somewhat from the version provided in Mr. Conrad’s affidavit but there is consistency on many of the main facts that will go to the question of whether there were Charter breaches. I take the following

summary of events to be non-contentious. [ 13 ] On September 11, 2020, three RCMP officers were conducting traffic patrols on King George Boulevard in Surrey, British Columbia. One of the officers queried the licence plate of the Vehicle and learned that the registered owner, the respondent Michael Ross, was prohibited from driving. [ 14 ] An officer used his police car to pull over the Vehicle and two other officers joined shortly after. [ 15 ] Mr. Grandison was driving. The RCMP officers observed a traffic offence involving two passengers sitting in the front passenger seat.

Adriana Davie was seated on the lap of the respondent, Jason Conrad. [ 16 ] The RCMP officers asked for the parties’ identification, and made inquiries about them in the police databases. These inquiries revealed that Mr. Grandison had convictions for assault and possession for the purpose of trafficking, and the other occupants also had past criminal histories. At this point, the occupants of the Vehicle were detained. The investigating officer states that this detention was for “officer safety”. As noted by the chambers judge at para. 63, this is not a valid reason for detention. [ 17 ] Mr.

Grandison was removed from the Vehicle, handcuffed, searched and placed on the curb. He maintains that he was not advised of his right to counsel. The other occupants were searched as well. [ 18 ] Mr. Grandison submits that the police conduct amounted to arbitrary detention during which he was denied the right to counsel and the reason for his detention, all in breach of his Charter rights. He maintains that the RCMP officers also did not have grounds to search him or the Vehicle. [ 19 ] Ms. Davie and Mr.

Conrad were arrested for carrying concealed weapons, as they had knives on them that they showed the officers when asked. The officers seized $2,365 in cash from Mr. Grandison’s wallet along with his watch. The officers seized $2,980 in cash from Mr. Conrad’s wallet. [ 20 ] After the arrests, one of the officers opened a backpack that was visible in the Vehicle and observed a large amount of cash inside. Mr. Grandison was then arrested for possession of stolen property. On arrest, he was advised of the reason for his detention and his right to retain and instruct counsel without delay, pursuant to ss. 10(

a) and (

b) of the Charter . Mr. Grandison alleges that he requested to speak to counsel but that he was not given an opportunity to do so. [ 21 ] The officers searched the Vehicle and backpack and seized the $59,685 in cash as well as the Vehicle. Mr. Grandison alleges that since the searches of his wallet and the backpack were carried out without a warrant, not only are they presumptively unreasonable for purposes of analysis under s. 8 of the Charter , they were in fact unlawful searches. [ 22 ] The traffic stop occurred from approximately 6:20 p.m. until the occupants were released at 7:00 p.m. [ 23 ] Mr.

Conrad was the only Vehicle occupant to give affidavit evidence on the severance application. Mr. Conrad’s evidence suggests that the police conduct included unnecessary verbal and physical aggression, and that they roughly handled him and Mr. Grandison, once at the beginning of the interaction and a second time at the end. [ 24 ] The RCMP add that an officer observed Mr. Grandison visibly shaking and nervous when he opened his wallet to provide his identification. A large amount of cash was visible in his wallet. He noticed Mr. Grandison and Mr.

Conrad were wearing identical Rolex watches, which he thought might indicate their rank within a criminal organization. The RCMP observed two cellphones in the centre console of the Vehicle ringing continuously during the traffic stop. The money seized from the backpack was not bundled in a way that is consistent with standard banking practices.

At the time, the Vehicle occupants denied that the backpack was theirs and denied knowing what was in it. [ 25 ] No charges were laid as a result of the investigation into the traffic stop. [ 26 ] The Director filed an action pursuant to the CFA on January 6, 2021, seeking forfeiture of the Vehicle and the cash seized by the RCMP. [ 27 ] None of Mr. Conrad, Mr. Grandison, or Mr. Ross claim to own the Vehicle. The respondent Eva Reeve claims to own the Vehicle, claiming that she executed a financing contract with the car dealer and paid the deposit, and it was purchased for her daughter Cassandra Reeve.

She says that she understood Mr. Ross to be a friend of Cassandra’s and the Vehicle ought not to have been registered in his name.

[ 28 ] Only Mr. Grandison claims to own the money seized from his wallet and the backpack. [ 29 ] On January 29, 2021, Mr. Grandison filed a response to civil claim. He pleaded that: (

i) the cash seized from the backpack and his wallet was obtained through lawful employment and that there is no basis for forfeiture; (ii) the RCMP violated his rights under ss. 7 , 8 , 9 and 10 of the Charter ; and (iii) he is entitled to a remedy under s. 24(1) or (2) of the Charter . [ 30 ] The Director points out that Mr. Grandison pleads he was carrying the cash to purchase the Vehicle. The Director suggests that seems implausible given Eva Reeve’s position and given that he originally denied that the backpack was his when confronted by police. However, the plausibility of Mr.

Grandison’s explanation as to why he came to be in possession of the cash was not at issue before the chambers judge and Mr. Grandison says it will not be relevant if he succeeds in establishing that his Charter rights were breached and the evidence should not be admitted. [ 31 ] On July 29, 2021, Mr. Grandison filed a notice of application that resulted in the order under appeal.

He sought an order severing the trial, such that the first part of the trial would effectively take the form of a voir dire and would solely concern the issue of whether his Charter rights were violated by the RCMP and whether the Court should order the exclusion of evidence thereby obtained pursuant to s. 24(2) of the Charter . He also sought an order that there be no document production or examination for discovery of him except with respect to the Charter issues, until after the adjudication of the Charter issues. [ 32 ] Mr.

Grandison also sought to sever issues regarding claims for the money, to be tried separately from issues relating to claims for the Vehicle. The judge declined to grant this application and this aspect of the order is not under appeal. Chambers Decision [ 33 ] The chambers judge carefully reviewed the circumstances of the RCMP interaction with Mr. Grandison and the RCMP seizure of cash from the backpack and Mr. Grandison’s wallet, as well as the RCMP officers’ interactions with Mr. Conrad. [ 34 ] The judge then reviewed Mr.

Grandison’s arguments in favour of severance and postponement of discovery, and the Director’s arguments against. [ 35 ] The judge reviewed many of Mr. Grandison’s arguments, including his submission that the challenge to the admissibility of the cash, based on alleged Charter breaches, would have to be heard and determined by the trial judge before the rest of the trial in any event, much like a voir dire in a criminal trial. Mr.

Grandison argued the only practical difference in granting severance would be to also delay discovery on other issues until after that determination, which would delay the rest of the trial as well. However, delay of discovery on other issues could mean that discovery would ultimately be avoided if the Charter arguments were successful, and so this was a potential benefit of severance. Furthermore, the other defendants would not need to participate in the trial of Mr.

Grandison’s Charter breaches. [ 36 ] Amongst the Director’s many submissions, the judge noted the argument that any Charter breaches were unlikely to result in exclusion of the evidence pursuant to s. 24(2) of the Charter . The Director argued that Mr. Grandison had no privacy interest in the Vehicle, and had disclaimed ownership of the backpack at the time of the traffic stop. Further, the Director argued that determining the Charter arguments first would not guarantee any time savings, even if Mr. Grandison succeeded on his Charter applications.

This was because he might still be called as a witness at the trial of other defendants as the Director’s theory is that this was a common criminal enterprise. Additionally, any Charter issues might still be relevant at trial in the assessment of available remedies to the Director, pursuant to s. 6 of the CFA . [ 37 ] In his approach to the issues, the judge cited this Court’s decision in British Columbia (Director of Civil Forfeiture) v.

Lloydsmith , 2014 BCCA 72 [ Lloydsmith ] as well as multiple decisions of the trial court that granted or dismissed severance applications in civil forfeiture actions. [ 38 ] He interpreted the law on severance in these cases as having evolved since his earlier decision in British Columbia (Director of Civil Forfeiture) v.

Huynh , 2012 BCSC 740 [ Huynh ] , which was also relied on by the judge whose decision was under appeal in Lloydsmith . [ 39 ] In his review of the authorities, the judge acknowledged certain relevant factors to the severance analysis, including: the impact of addressing the Charter issues first has on savings in time and expense (paras. 51, 57); whether a full evidentiary record is required to determine the issues (para. 57); and the special context of civil forfeiture cases where it may be in the interests of justice to establish the legitimacy of the evidence gathered by police in advance of the determination of other issues (paras. 52, 55). [ 40 ] The chambers judge cited British Columbia (Director of Civil Forfeiture) v.

Ieraci , 2020 BCSC 605 [ Ieraci ] , a case where the chambers judge concluded that the evidence on the severance application suggested potentially serious Charter violations that could warrant the exclusion of evidence. She ordered severance of the issue of Charter breaches and the limiting of discovery to those issues until they were determined.

The chambers judged stated at para. 58: When an order for bifurcation is granted, it has been found to be more consistent with “proportionality, efficiency and fairness” in the process to delay pretrial discovery procedures until the legitimacy of the seizure has been determined: British Columbia (Director of Civil Forfeiture) v. Ieraci , 2020 BCSC 605 , at para. 61 . [ 41 ] The judge reviewed the evidence and the parties’ arguments regarding Charter breaches, weighing the arguments for and against Mr. Grandison. The judge found it was “at least arguable” that breaches of Mr.

Grandison’s Charter rights will be found, and this could well pull in favour of the exclusion of the seized money: paras. 61–68. The judge concluded that Mr. Grandison has “certainly identified Charter arguments that are capable of being argued on the evidence as it currently appears”: para. 68.

[42] The judge then analyzed whether the interests of justice would be best served by severance, finding that in this case the mainquestion was whether greater efficiency would result from the order. He concluded it would: paras. 69–70. In this regard, he noted atpara. 71 that the forfeiture case involving Mr. Grandison was very different than the one facing the other defendants who were not thesubject of the search and only claim an interest in the Vehicle. If Mr.

Grandison’s Charter argument is successful, the trial overforfeiture of the Vehicle would be much more focused and fundamentally different: paras. 72–73. [43] The judge then found that this is a case in which “proportionality, efficiency and fairness favour narrowing the scope of thedocument disclosure and examination for discovery with respect to Mr. Grandison to conform with the initial focus of his Charterapplication”: para. 75.

The parties understand this to refer back to the judge’s earlier statement at para. 58, regarding the considerationsin Ieraci. [44] The judge dismissed the application to sever the claims for the money from the claims for the Vehicle, finding that allowingthese claims to be heard together would not unduly complicate or delay the trial or be otherwise inconvenient: para. 76. [45] The relevant terms of the form of order prepared by the parties and approved by the chambers judge state: … 2. the trial of this matter shall be bifurcated.

The first part of the trial will take the form of a voir dire and shall solely concern the issueof whether the Applicant’s rights under sections 7, 8, 9 and I0 of the Canadian Charter of Rights and Freedoms (the “Charter”), werebreached by police officers over the course of the traffic stop, arrest, seizure of the items that are the subject matter of this proceeding onSeptember 11, 2020.

The first part of the trial will also address whether this Court should order the exclusion of evidence therebyobtained, pursuant to section 24(2) of the Charter. 3. the Applicant is released from the requirement to provide a list of documents, or to be examined for discovery or to make documentproduction, except with respect to Charter issues, until the Court completes adjudication of the Charter issues in this action; … [46] The parties interpret term 3 of the order as meaning that there will be no discovery on whether Mr.

Grandison is the owner of theseized money, and the source of that money, until it is first determined whether there were Charter breaches and it is next determinedwhether the remedy for Charter breaches should result in the evidence being excluded. [47] However, the Director says that answering the question of whether there should be a Charter remedy for any Charter breacheswill require considering the context of whether the seized money is proceeds of crime, including whether Mr. Grandison is involved inorganized crime, and so discovery on these issues should be permitted. I will return to this point.

Grounds of Appeal [48] The appellant raises the following grounds of appeal, stating that the chambers judge erred by failing to:

a) apply the correct legal test for severance;

b) apply the correct legal test for the postponement of discovery; and

c) consider relevant factors relating to inefficiency likely to be caused by his orders. Standard of Review [49] The parties agree that the order under appeal in this case was a discretionary case management decision and is therefore subjectto a deferential standard of review: British Columbia (Minister of Forests) v. Okanagan Indian Band, 2008 BCCA 107 at para. 4, leaveto appeal to SCC ref’d, [2008] S.C.C.A.

No. 222. [50] A discretionary decision is by its very nature one where the law does not dictate a specific outcome, and the decision maker has anumber of options as to what is the fair and just thing to do, within the law and facts: Baker v. Canada (Minister of Citizenship andImmigration), [1999] 2 S.C.R. 817 at para. 52, ; Kish v. Sobchak Estate, 2016 BCCA 65 at para. 33. [51] Trial judges have experience and wisdom in managing trials and in making discretionary interlocutory decisions after weighingvarious factors in the context of the circumstances of the case before them.

Trial judges are fundamentally interested in managing casesin a practical manner so as to focus both legal resources and judicial resources.

These are reasons why decisions of this nature are entitledto considerable deference by this Court. [52] A discretionary decision will not be overturned on appeal absent showing that the lower court misdirected itself on the applicablelaw (also described as an error in principle), or made a palpable error on the facts (including failing to consider relevant factors ormisconceiving the evidence), or the decision is so clearly wrong that permitting the order to stand would work an injustice: BritishColumbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at para. 43; Penner v.

Niagara (Regional Police ServicesBoard), 2013 SCC 19 at para. 27; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 at pp. 76–77, . [53] The “clearly wrong” standard of review in relation to discretionary decisions is rarely used in isolation from a conclusion thatthere has been an error in law or a palpable and overriding error of fact, and it is not a license for the Court of Appeal to simply substitute

its discretion for that of the trial judge or chambers judge; see Law Society of British Columbia v. Canada (Attorney General), 2002BCCA 49 at para. 7; Dhillon v. Pannu, 2008 BCCA 514 at para. 28, leave to appeal to SCC ref’d [2009] S.C.C.A. No. 58. As Tysoe J.A.explained in Dhillon: [28] An appellate court should not substitute its opinion in place of the opinion of the trial judge or chambers judge under the guisethat the judge did not give sufficient weight to a relevant consideration.

It is incumbent upon an appellant to demonstrate error on thepart of the judge, and an appellate court should not interfere with the exercise of discretion by a judge simply because the judge failed tomention a relevant consideration: see Garda v. Osborne (1996), (BC CA), 72 B.C.A.C. 101 at para. 31, and E.T. v.K.H.T. (1996), (BC CA), 27 B.C.L.R. (3d) 347, 83 B.C.A.C. 267 at para. 29 (Lambert J.A. dissenting in the result).

Ifthe judge’s decision is not so clearly wrong as to amount to an injustice, it must be manifest from the judge’s reasons that he or shemisdirected himself or herself, or gave no weight, or insufficient weight, to a relevant consideration. Severance Analysis [54] I will first analyze the proper approach to severance applications. [55] A central theme of the Director’s position on appeal is that the chambers judge erroneously applied a low standard in hisapproach to the analysis of whether a severance order should be granted. The Director’s arguments, in effect, suggest that: 1.

There must be “compelling reasons” for such orders because there is a presumption that a plaintiff is entitled to have its claimsdecided in one trial; and 2. In order to assess whether there are “compelling reasons” in these kinds of cases, a chambers judge must conclude that there is a“real likelihood” of significant savings in time and expense.

To reach this conclusion, the chambers judge must conduct a preliminaryassessment of the Charter breaches and Charter remedies that leads the judge to conclude there is a real likelihood that the applicantwill succeed on these issues and it will be dispositive of the case. [56] The Director suggests that the above standards are necessary in order to be consistent with the standards applied in other types ofcivil cases involving severance. [57] Central to these arguments is the Director’s reliance on two cases, Bramwell v.

Greater Vancouver Transportation Authority,2008 BCSC 1180 at para. 12 and Marsh Canada Limited v. BFL Canada Insurance Services Inc., 2014 BCSC 1171 at paras. 33–34[Marsh]. These cases were dealing with applications to sever the determination of liability from the issue of damages. Bramwell was apersonal injury case, and Marsh involved a claim by one company against its former employee and that employee’s new employer forbreach of a non-solicitation agreement, duty of confidence, and for inducing breach of contract.

The Director argues that this Court’sdecision in Lloydsmith affirmed by implication that the approach to severance stated in Bramwell and Marsh is the correct one for civilforfeiture proceedings and is as described by the Director. [58] I do not accept the Director’s premise for several reasons which I will develop below.

First, the Supreme Court Civil Rulesprovide many opportunities for determination of one or more issues before other issues, and do not create a presumption against doing so.Second, I do not accept that the case law dealing with severance generally imposes a higher threshold for severance applications than thejudge applied in the present case. Third, the nature of the claim is important context to consider in the analysis of whether a severanceapplication should be granted.

Fourth, the decision of this Court in Lloydsmith does not stand for the proposition that the court must finda real likelihood of a Charter remedy that is dispositive of the action in order for severance to occur. [59] I will conclude my analysis with a review of the approach of the chambers judge to the severance issue to determine whether thejudge erred in principle. In my view the judge’s approach was consistent with prior jurisprudence and this Court’s decision inLloydsmith, and the judge did not make an error in principle. i.

Civil Rules [60] I turn to a brief review of the provisions in the Civil Rules which provide for the trial of one issue before another. [61] The Civil Rules govern the procedure for civil litigation in the Supreme Court of British Columbia.

Very generally speaking, thisprocess usually includes exchanging pleadings, document discovery, examinations for discovery, and ultimately a trial of all issues withevidence introduced by in-person witnesses and witnesses available for cross-examination. [62] However, the Civil Rules are inherently flexible, and include many provisions that allow for variations of this typical process.While parties can agree on a variation of the process (R. 1-2(3)), where they do not agree, an application must be brought in chambers. [63] The object of the Civil Rules, as set out in R. 1-3, must be kept in mind in determining any procedural dispute.

R. 1-3 provides:

(1) The object of these Supreme Court Civil Rules is to secure the just, speedy and inexpensive determination of every proceeding on itsmerits.

(2) Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting theproceeding in ways that are proportionate to (

a) the amount involved in the proceeding, (

b) the importance of the issues in dispute, and

(

c) the complexity of the proceeding. [64] These goals are sometimes summarized, for brevity, as the goals of proportionality. [65] The Civil Rules give considerable flexibility to judges of the trial court to manage civil actions. The Civil Rules emphasize thecase management powers of the trial court by providing for case planning conferences in R. 5-1, and trial management conferences inR. 12-2.

In addition, the law recognizes that there are no absolute rights under the Civil Rules, as the trial court retains inherentjurisdiction to prevent its procedure being oppressive to any person, as noted by Southin J.A. in Penderville Apts. DevelopmentPartnership v. Cressey Development Corp., (1990), 43 B.C.L.R. (2d) 57, (C.A.); Shen v.

Chan, 2023 BCCA 244 atpara. 28. [66] There is no presumption in the Civil Rules that determining one issue before others will not meet the goals of proportionality.Indeed, there are multiple provisions that allow for final determination of some issues in a case before others, including the followingrules: 1. R. 3-4(7.1) permits the court to order that a counterclaim be tried separately and likewise R. 3-5(15) permits the court to order a timefor a separate trial of an issue advanced by way of third party notice; 2. R. 5-3(1)(

p) permits a judge or master at a case planning conference to order a trial of one or more issues in an action independentlyof others; 3. R. 7-1(14) gives the court power to order that a party faced with a demand for discovery of documents, be excused from complianceeither generally or in respect of one or more documents or classes of documents; 4. R. 7-1(22) gives the court discretion to order “if satisfied that for any reason it is desirable” that an issue should be determined first,and to reserve the question of scope of discovery until after that issue is determined; 5.

R. 7-2(18) gives the court discretion to limit the scope of examination for discovery; 6. R. 9-3 allows for a question of fact or law or of partly fact and partly law, to be stated in the form of a special case, where the courtmay grant special relief or order judgment to be entered; 7. R. 9-4 allows for a point of law arising from pleadings to be set down for hearing and disposed of before trial, and this may lead todismissal of the action; 8. R. 9-6 provides for

summary judgment on all or part of a claim; 9. R. 9-7 provides for

summary trial of an issue or of a proceeding. Pursuant to R. 9-7(11), the court may dismiss the application on theground that the issues are not suitable for disposition under this rule, or the application will not “assist the efficient resolution of theproceeding”. Pursuant to R. 9-7(15) the court may grant judgment on an issue or generally, unless it is “unable, on the whole of theevidence before the court on the application, to find the facts necessary to decide the issues of fact or law”, or the court is “of the opinionit would be unjust to decide the issues on the application”.

The court may also direct the trial of an issue: R. 9-7(17); 10. R. 12-5(67) permits the court to order that one or more questions of fact or law arising in an action be tried and determined beforeothers; 11. R. 12-5(68) permits the court to order that different questions of fact be tried by different modes of trial. A trial judge has power torevoke or vary an order made under R. 12-5 concerning the mode of proof at trial (R. 12-5(2)); and 12. R. 22-5 permits a person to join several claims in a proceeding, and to claim against multiple parties.

However, pursuant to R. 22-5(5) a party may be relieved from attending a part of a trial in which the party has no interest. Pursuant to R. 22-5(6), where joinder ofseveral claims or parties “may unduly complicate or delay the trial or hearing of the proceeding or is otherwise inconvenient”, the courtmay order separate trials or hearings or make any other order it considers will further the object of the Civil Rules. [67] Mr.

Grandison relied on R. 12-5(67) in support of his application for severance of the Charter issues, and Rules 7-1(14), 7-1(22)and 7-2(18) with respect to his application for postponement of discovery. [68] In addition to the above Civil Rules, the trial court also has considerable experience in determining discreet issues in civil cases instages, including in the stages of a foreclosure proceeding (R. 21-7); jurisdiction disputes (R. 21-8); and class actions brought pursuant tothe Class Proceedings Act, R.S.B.C 1996, c. 50. ii.

General Jurisprudence on Severance [69] Given the Director’s argument that suggests the threshold for severance applications was too low in the present case (and in othercivil forfeiture claims), as compared to the threshold applied in other civil proceedings, it is necessary to briefly consider the generaljurisprudence on severance. [70] Over time, the case law has recognized a number of variables that may be weighed by chambers judges in determining whetheran issue in a civil action should be determined in advance of other issues in the case. [71] These cases often turn on the question of whether the evidence on each issue will be intertwined, making it necessary to hear allevidence at once, and whether severance will be more efficient and could result in significant savings of time and expense as comparedto hearing all issues together.

The jurisprudence also recognizes the relevance of factors related to proportionality and access to justice.

[72] A large percentage of severance authorities deal with applications to sever the issue of liability from damages. Many of thesecases find useful the

summary of the correct approach to these issues set out by Justice Martinson in Nguyen v. Bains et al, 2001 BCSC1130 at paras. 10–12 (referring to predecessor Civil Rules numbers): [10] Rule 1(5) sets out the overall object of the Supreme Court Rules. That object is “to secure the just, speedy and inexpensivedetermination of every proceeding on its merits.” Rule 39(29) must be interpreted with that object in mind. [11] Courts have considered the question of when some issues should be tried before others. These are some of the points that havebeen made: a.

A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not beexercised in favour of severance unless there is a real likelihood of a significant saving in time and expense. b. Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action forone or more parties. c. Severance is most appropriate when the trial is by judge alone. d. Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial.

This concern may beaddressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part. e. A party’s financial circumstances are one factor to consider in the exercise of the discretion. f. Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge. (See BC Practice: Issue 37 (May/00) where the authors provide a useful overview of the relevant cases and issues arising from them, andGoldman, Sachs, & Co. v. Sessions, (BC SC), [1999] B.C.J.

No. 1226 (S.C.)) [Emphasis added.] [73] The court declined to sever the issues of liability and damages in Nguyen, which involved a dispute over bus service tenders. [74] Highlighting the manner in which the Nguyen factors have been applied in the general severance jurisprudence offers usefulguidance for determining the appropriate threshold and considerations in the civil forfeiture context. [75] In Nguyen, the court recognized that a party’s financial circumstances may be a relevant factor. In submissions, the Directorsuggested this should not be a factor in absence of evidence that the party is impecunious.

I disagree that such evidence is inevitablyrequired. Access to justice is a proper concern of the chambers judge deciding a severance application.

As a matter of common sense,judges can observe obvious imbalances in resources, take judicial notice of the fact that legal fees are out of reach for the averageperson, and appreciate that the legal fees to defend an entire action are likely to be more than the legal fees to defend the trial of an issueand may be disproportionate to the issues at stake. [76] Accordingly, it is legitimate for the court to recognize any apparent imbalance of financial resources of the parties in determiningwhether it would be just to order severance.

For example, it is possible that severance of an issue will take away the leverage of one partywho is better resourced and may be relying on the cost of litigation as a pressure on the opposing party, who might have a strong case ona preliminary issue but who, if severance is not granted, may be facing costs of litigation that are disproportionate. [77] When considering whether there could be a significant savings in time and expense if severance is granted, the courts do notsimply consider the possibility that determination of a preliminary issue could be dispositive.

They may also consider the possibility thatdetermination of an issue or issues in advance could promote settlement: Enterprising Minds Technology Inc. v. Lululemon Athletica Inc.,2006 BCSC 1168 at para. 15. [78] It is difficult to know how severance of an issue plays into settlement discussions in an individual case, but it would be naïve toconsider that it does not in some cases.

The decision to determine an important issue first is likely to focus the risks of the litigation forthe parties; so too is the actual determination of the issue. [79] The comment in Nguyen that the court must be satisfied there is a “real likelihood of a significant saving in time and expense” isoft-cited. However, one must be careful in not misinterpreting what was intended by the words “a real likelihood”. The court’s intentionwas to indicate that there must be some substance to the arguments in favour of severance. The applicant must do more than merelyassert severance will be preferable.

The applicant must provide enough case-specific information to give the judge confidence thatseverance could lead to a significant savings in time and expense. This proposition is clear from para. 12 of that decision: [12] The first of these points is that the Court must be satisfied that there is a real likelihood of a significant saving in time andexpense. More than a bare, or mere, assertion that there is a real likelihood of a significant saving in time and expense is required tosatisfy the Court.

That is, there must be case specific information that there will likely be a significant saving in time and expense. TheCourt should be told what specific issues, evidence or legal arguments would be avoided and why, as well as how much time and moneywould likely be saved as a result. [Emphasis added.] [80] The court in Nguyen was not suggesting that a court must be satisfied on a balance of probabilities that severance will indeedresult in a savings in time and expense.

That test would be unworkable because the court cannot predict the outcome of the issues thatare to be severed, that task must be undertaken by the judge who is actually determining the issues. The court in Nguyen recognized thatwhat is involved in weighing this factor is an assessment of what might happen in the future: “could” the issues that are severed be

determinative (para. 11(b)); and “would” that avoid other issues, legal evidence or arguments (para. 12). [ 81 ] In Nguyen , the judge noted that when considering whether there could be a significant savings in time and expense if the severance application is granted, there are practical concerns to keep in mind, including: the possibility of delays between trial hearings and scheduling problems as between counsel, the judge and witnesses, which could increase the risk that evidence in the first part of the hearing will not be remembered; and the possible costs of preparing for the case more than once: paras. 13–18. [ 82 ] In Enterprising Minds , Justice Gerow granted the application to determine two contract issues in advance of other issues in the case, namely whether there was repudiation of the contract and whether repudiation was accepted.

She noted that these issues were straightforward and were threshold issues, and their determination would advance the proceeding and narrow the scope of the remaining issues in dispute: para. 41. I have been unable to find a reported decision of the trial of the contract repudiation issue and so I would assume that the case settled sometime after the severance application was granted. [ 83 ] In Blue Line Hockey Acquisition Co., Inc. v.

Orca Bay Hockey Limited Partnership , 2006 BCSC 1716 , Justice Wedge applied the approach in Nguyen , and granted the defendants’ application for severance of liability and remedy prior to the determination of quantum of damages in a complex contractual dispute. She noted that the plaintiff was seeking specific performance and that most issues of damages would only arise if the plaintiff were successful in establishing liability but failed to obtain specific performance or the imposition of a constructive trust, and the latter two remedies would give rise to a claim for accounting of profits: para. 19.

She also observed that there was a spectrum of potential remedies, and if damages were awarded, there were a number of variables that would affect the calculation of damages depending on the outcome of the liability issues. This would impact the preparation of expert evidence.

Damages assessment would not be necessary if the defendants succeeded in establishing they had no liability: paras. 25–33. [ 84 ] The trial judge in Blue Line who granted the severance application found at para. 48 that the issue of quantum of damages was sufficiently distinct from the liability issues, but if there were any overlap, that could be addressed by an order that the evidence in the first part of the trial would apply to the second part.

Determining liability first could result in a significant savings in court time if the claim for specific performance were successful, or if the claim against all defendants were dismissed. Severance was granted so that liability would be determined before the issue of quantum of damages. [ 85 ] The decision to grant the defence application for severance in Blue Line did in fact end up avoiding the necessity for a complex damages assessment and damages trial. The defence was successful on liability issues and the trial judge dismissed the action, as affirmed on appeal: Blue Line Hockey Acquisition Co. v.

Orca Bay Hockey Limited Partnership, 2009 BCCA 34 , leave to appeal to SCC ref’d [2009] S.C.C.A. No. 176. [ 86 ] Whether or not the issues to be determined first if severance is granted are sufficiently distinct, or are interwoven with other issues to be determined, is of concern to trial judges for two reasons. First a judge will want to have all material evidence relevant to an issue before them when deciding an issue; and second, a trial judge will want to avoid the possibility of inconsistent findings as between the issues decided in the first stage of a trial and those decided in the second stage.

These concerns are often discussed in other contexts as well, such as applications for

summary trial of one issue before another. [ 87 ] For example, in Parsons v. Finch , 2003 BCCA 409 , this Court allowed an appeal from a

summary trial of an issue of whether the defendant city owed a duty of care, holding that evidence of duty of care and standard of care would overlap and these issues should be determined together: para. 48. [ 88 ] Pursuant to R. 9 -7(11)(b)(ii), a court may dismiss a

summary trial application where it will not assist the efficient resolution of the proceeding. Pursuant to R. 9 -7(15), a judge on a

summary trial application may dismiss the application if the judge is unable, on the evidence, to find the facts necessary to decide the issues or the court is of the opinion that it would be unjust to decide the issues. These subrules have been relied upon by judges in dismissing applications for

summary trial of an issue, where the litigation is complex and the judge considers that the issue cannot be fairly determined in isolation from other issues in the litigation, giving rise to the potential for inconsistent findings, as noted by Gerow J. in Malish v. 2407077 Ontario Ltd ., 2021 BCSC 2448 at paras. 33–35 . [ 89 ] The

summary trial rule, now R. 9-7, has existed in BC since 1983 and it is sometimes used to decide single issues in litigation. Trial judges in BC are very familiar with the complexities of deciding some issues in advance of others. The pitfalls and benefits of doing so are similar to severance. [ 90 ] The Supreme Court of Canada in Hryniak v. Mauldin , 2014 SCC 7 expressly approved of the approach of deciding some issues in advance of others in

summary proceedings, as enhancing access to justice. [ 91 ] Hryniak dealt with an amended

summary judgment rule in Ontario that was similar to this province’s longstanding

summary trial rule, giving power to a judge to weigh evidence, evaluate credibility and draw inferences, unless it is in the interest of justice for such powers to be exercised only in a trial.

Summary judgment was granted against one defendant, but not others.

The Supreme Court of Canada upheld the decision, emphasizing that access to justice requires a culture shift in which judges actively manage the legal process so that it is proportionate, timely and accessible, noting that the best way to resolve a dispute is not always with the most painstaking procedure: paras. 28, 32. [ 92 ] The Court held: [59] … What is fair and just turns on the nature of the issues, the nature and strength of the evidence and what is the proportional procedure . [60] The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole .

For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant

summary judgment against a single defendant. Such partial

summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be

the most proportionate, timely and cost effective approach. [Emphasis added.] [ 93 ] The Court in Hryniak emphasized that a process chosen to determine an issue or claim must be one which gives the judge confidence that the judge can find the necessary facts and apply the relevant legal principles so as to fairly resolve that dispute: paras. 50, 57. The Court noted that the powers to decide issues in a

summary way “are presumptively available, rather than exceptional”: paras. 45, 67. Further, the question of whether it is in the “interests of justice” for the motions judge to use the

summary process “depends on the relative evidence available at the

summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors” (para. 82). The Court noted that these decisions are discretionary, attracting a deferential standard of review: para. 83. [ 94 ] In my view, the observations in Hryniak , including the focus on the nature of the dispute and whether the judge has confidence that the chosen process will fairly resolve an issue, in a manner that is proportionate, timely and accessible, is the correct focus in severance applications as well.

These considerations reflect the analysis in the severance caselaw, and are consistent with the deference this Court must show to discretionary decisions of this nature. [ 95 ] As mentioned, the Director relies on the cases of Bramwell and Marsh . These cases were also dealing with applications to sever the determination of liability from the issue of damages. [ 96 ] In Bramwell , the court framed the question as whether there is a “real likelihood of a significant savings in time and expense”, language consistent with Nguyen .

Here, the judge declined to sever the issue of liability from damages in a personal injury case, finding that severance would “hinder rather than facilitate a fair disposition of the issues in the action”: para. 17. [ 97 ] In Marsh the court also asked the question of whether severance would be likely to result in a significant savings in time and expense.

The court also considered as factors whether the issue to be tried first could be determinative; whether the issues proposed to be severed are too intertwined; and whether there are any compelling reasons to justify severance other than time and expense: para. 33. The latter factor in that case referred to the argument that postponing discovery and thereby protecting confidential trade information from the competitor, the opposite party, could justify an order for severance (para. 57). [ 98 ] In Bramwell and Marsh the court suggested it would only order severance where there are “compelling reasons”.

The Director relies on this language as a necessary part of the test for severance. [ 99 ] In Nguyen , which is oft-cited by the trial court, the court disagreed that the test required “exceptional circumstances” (para. 11) . At the same time, the judge was mindful that the arguments in favour of severance had to be more than a bare assertion, and she noted that there must be case specific information supporting this proposition (para. 12). [ 100 ] Respectfully, use of the adjective “compelling” does not add much to the analysis.

In context, this word seems to convey that in many civil litigation cases the factors that are relevant simply do not weigh in favour of severance. However, these words did not replace the judicial discretion to grant a severance application where the judge considers that the potential benefits of doing so outweigh the possible disadvantages in the context of the case before them. [ 101 ] Further, to paraphrase Hryniak , the fact that these powers exist means that they are presumptively available, not exceptional. iii.

Context of Civil Forfeiture Severance Cases Compared to Other Civil Proceedings [ 102 ] The Director’s submissions advance a theme that severance is being permitted more often in civil forfeiture cases than in other types of civil litigation, and suggests that this Court ought to conclude from this that the standard that is being applied in civil forfeiture cases is too low.

The Director strongly encourages this Court to state or restate a test that would reverse this trend. [ 103 ] In my view, this submission fails to appreciate that the test for when severance should be ordered will always necessarily evaluate the nature and context of the particular case. The nature of the case was emphasized as a factor in Hryniak . [ 104 ] The context of civil forfeiture cases is very different from most civil litigation and likely explains why severance applications arise more frequently.

The CFA authorizes the Director to apply to the Supreme Court of British Columbia for orders of forfeiture in respect of property that is the “proceeds of unlawful activity” or that comes within the definition of “instrument of unlawful activity”. In many cases, although not invariably, the property in question will have been seized by police officers in their exercise of their investigative powers.

Where it is alleged that the property was obtained in a manner that infringes an individual’s Charter rights, it may potentially be excluded from the evidence in the forfeiture proceeding as a consequence of s. 24(2) of the Charter . Often a preliminary issue of the admissibility of evidence seized in apparent breach of Charter rights will need to be determined by the trial judge. If the evidence is excluded, that order may be dispositive of the case because the excluded evidence is the very subject matter of the proceeding. These circumstances are very different than those that exist in most civil litigation.

Charter Rights are at Issue [ 105 ] Where police have seized property that becomes the subject of the Director’s civil forfeiture claim, in course of conduct that includes a person’s detention or arrest, the actions of the police will be subject to Charter scrutiny. Possible Charter protections that come into play, and are raised by Mr. Grandison in this case, include: Life, liberty and security of person 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.

Search or seizure 8 Everyone has the right to be secure against unreasonable search or seizure. Detention or imprisonment 9 Everyone has the right not to be arbitrarily detained or imprisoned. Arrest or detention 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. [ 106 ] The Charter provides remedies for Charter violations in s. 24 : Enforcement of guaranteed rights and freedoms 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. Exclusion of evidence bringing administration of justice into disrepute

(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. [ 107 ] The Supreme Court of Canada in R. v. Grant , 2009 SCC 32 at para. 71 identified three lines of inquiry relevant to the determination under s. 24(2) of the Charter whether to exclude evidence because admitting it would bring the administration of justice into disrepute, namely:

a) the seriousness of the Charter infringing conduct;

b) the impact of the breach on the individual’s Charter -protected interests; and

c) the impact of admitting the evidence on society’s interests in having the case adjudicated on the merits. [ 108 ] The Director’s factum on appeal suggested that because of the important policy goals of the CFA , and the fact that a defendant’s personal liberty is not at stake due to the civil, as opposed to criminal, nature of the proceedings, it will be “rare” for a Court in these cases to grant a remedy that would exclude evidence due to Charter breaches. The Director submitted that the chambers judge erred in failing to recognize how rare it will be to exclude evidence in a civil forfeiture context.

The CFA policy goals include taking the profit out of unlawful activity; preventing the use of property to unlawfully acquire wealth or cause bodily injury; and compensating victims of crime and to fund crime prevention and remediation: British Columbia (Director of Civil Forfeiture) v. Qin , 2020 BCCA 244 at para. 73 . [ 109 ] However, as noted by this Court in British Columbia (Director of Civil Forfeiture) v.

Crowley , 2013 BCCA 89 : [31] These salutary objectives must be placed into the context of civil proceedings that are somewhat unusual: the exercise of state power to confiscate the property of a citizen in a civil action based on unlawful activity that is an offence under legislation. Protection from the arbitrary exercise of state power is rooted in our legal tradition. Its exercise, albeit for good policy reasons, must recognize the procedural rights of the citizen…. [ 110 ] Crowley was cited with approval in British Columbia (Director of Civil Forfeiture) v.

Nguy , 2018 BCSC 1621 , in which DeWitt- Van Oosten J. (as she then was) dismissed the Director’s application for an interim preservation order of property, finding it not “in the interests of justice”, because of the Director’s material non-disclosure at an ex parte hearing, despite the policy interest in preserving the impugned property.

The court adopted comments of Doherty J.A. in Ontario (Attorney General) v. 1140 Aubin Road , 2011 ONCA 363 , dealing with Ontario’s civil forfeiture process, to the effect that maintaining public confidence in the civil justice process is promoted by orders that accord with the community’s sense of fairness: para. 182.

DeWitt-Van Oosten J. held that this observation applies equally to orders made on an interlocutory motion: para. 93. [ 111 ] In oral argument on the present appeal, the Director abandoned its submission that Charter remedies of exclusion of evidence will be rare in civil forfeiture cases and conceded that Charter breaches may lead to the exclusion of evidence. This is for good reason in my view.

Courts have applied the Grant factors to find Charter breaches by police should result in the exclusion of evidence in civil forfeiture cases in other jurisdictions: see Alberta (Minister of Justice and Attorney General) v. Squire , 2012 ABQB 194 [ Squire ] ; R. v. Hoyes , 2018 NSPC 26 . [ 112 ] The Director relies on two cases where evidence was not excluded, one decided pre- Grant , namely, R. v. Daley , 2001 ABCA 155 , and the other being R. v. Vellone , 2020 QCCA 665 . In Vellone , the defendant was acquitted of criminal offences in a previous trial based on the evidence being ruled inadmissible.

The fact that the defendant had already benefitted from the exclusion of evidence was considered by the Court of Appeal of Quebec in reviewing the remedy (para. 62). The Court in Vellone acknowledged the distinct interests at stake in a criminal versus a forfeiture proceeding, but did not foreclose the possibility that evidence may be excluded in some forfeiture cases: paras. 28, 46.

[113] In Squire, the court took the position that the threshold for exclusion of evidence based on Charter-infringing conduct under theGrant analysis should not change based on the nature of the proceeding: [63] Under the Grant paradigm it is difficult to accept the proposition that State conduct somehow becomes less egregious if thejudicial context changes from criminal to civil, or where an individual’s at-risk interest is something other than liberty. The State’sconduct is fixed. The police did what they did and the past cannot be changed or undone.

In my view the government should be held to aconsistently high standard in respect of how it employs its considerable resources against its citizenry, and that standard should existindependent of the government's choice of how it wishes to proceed legally. [64] Similarly, an unreasonable search or an arbitrary detention is no less unreasonable and no less arbitrary simply because thegovernment chooses one form of legal proceeding over another. This election is something the respondent/accused has no choice orcontrol over.

Charter protected interests are not an elastic concept that expand or contract based on the seriousness of the offence ornature of the judicial forum. Charter rights - and their underlying purpose - remain fixed, subject only to broad and liberal

interpretationsthat give effect to those rights in contemporary times: R. v. Big M. Drug Mart, (SCC), [1985] 1 SCR 295 at 334-336; Edwards v. Canada (Attorney General), (UK JCPC), [1930] AC 124. [114] In Squire, the police conduct was not too dissimilar from the underlying conduct at issue in the present case.

The court held thatthe evidence seized by the police and all derived evidence related to it should be excluded in the civil forfeiture proceeding, even thoughthat meant it would completely undermine the Crown’s case: paras. 66–70. [115] In any event, the jurisprudence on the exclusion of evidence in civil forfeiture proceedings pursuant to s. 24(2) of the Charter isnot, as of yet, well developed. There are no cases in this province directly addressing this issue at the appellate level.

It may well be thatthe policy goals of the CFA will be a factor to be weighed in the determination of the remedy for Charter breaches, but so too will theseriousness of the Charter breaches and potentially the lack of any other effective remedy for police misconduct other than exclusion ofevidence. [116] The Director’s attempt to advance the argument on this appeal that it will be rare for a court to exclude evidence under s. 24(2) ofthe Charter in civil forfeiture proceedings, and then the Director’s withdrawal of this argument, does illustrate an important point.

Giventhe nascent state of this area of law, it may be very difficult for a chambers judge on a preliminary assessment of the issue to predictwhether there is a real likelihood that Charter breaches will lead to exclusion of evidence in a civil forfeiture case. [117] Furthermore, the balancing exercise mandated by s. 24(2) requires weighing all the relevant factors in each case. This also makesit difficult to predict the likely outcome in advance of knowing the relevant evidence. As stated in Hoyes, citing R. v.

Harrison, 2009SCC 34 at para. 36: The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question ofwhether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighedin the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration ofjustice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of thecriminal justice system.

Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must beassessed. [Emphasis added.] [118] I turn now to this Court’s decision in Lloydsmith. iv. The Lloydsmith Decision [119] In Lloydsmith, the Director’s appeal of an order granting severance of Charter issues in a civil forfeiture case was dismissed.Lloydsmith is the only appellate decision in this province dealing with severance applications in the civil forfeiture context. [120] The circumstances involved the police conducting a warrantless search of Mr.

Lloydsmith’s property and discovering whatappeared to be a marijuana grow-operation. A warrant was subsequently obtained and the plants were seized and destroyed. No criminalcharges were laid. [121] The RCMP forwarded information about these events to the Director, who commenced an action to seize Mr. Lloydsmith’sproperty based on the theory that equity in the property was obtained by proceeds of crime. [122] Mr.

Lloydsmith pleaded that the Director’s claim would not have arisen but for the RCMP’s Charter breaches when theydiscovered the marijuana grow-operation. [123] The trial judge ordered that issues of whether Mr. Lloydsmith’s Charter rights were breached and whether a remedy should begranted under s. 24 of the Charter should be heard first before the hearing of other issues before trial. The judge dismissed the Director’sapplication to compel Mr.

Lloydsmith to attend a full discovery prior to the hearing on s. 24 of the Charter. [124] The hearing of the Charter breaches followed, and the trial judge found that the RCMP violated Mr. Lloydsmith’s ss. 8, 9 and10(

b) rights. Mr. Lloydsmith was examined for discovery about what happened on the day of the police search, but the next step to comewas the consideration of remedies under ss. 24(1) and (2) of the Charter. [125] The Director appealed on the basis that the trial judge erred in ruling that the issue of remedies under ss. 24(1) and (2) of theCharter could be determined outside of the context of a full trial, and erred in directing that the determination of these remedies shouldproceed before completion of pre-trial discovery.

[ 126 ] In Lloydsmith , Saunders J.A set out in brief the criteria to be considered on a severance application: [22] The criteria on bifurcation, also referred to as severance, has been established for some time. They include trial fairness, convenience, efficiency, and the presence or absence of prejudice. I would suggest that the preeminent consideration is the interests of justice. [ 127 ] In stating that the criteria on bifurcation “has been established for some time”, Saunders J.A. was not suggesting that she was applying a new test.

In listing the criteria, she referred to factors that are “included”, without stating that these were the only factors that may be relevant. [ 128 ] The established law by the time of Lloydsmith was, in my view, accurately summarized in Nguyen and Blue Line , as set out above. The factors that might be considered in support of a severance application were inclusive, not exclusive. [ 129 ] Further, in Lloydsmith , the Court at para. 14 cited with apparent approval a passage from the decision of Schultes J. in Huynh , which was also relied on by the judge whose decision was under appeal in Lloydsmith .

This Court noted that the judge in Huynh was satisfied there would be sufficient efficiency to justify bifurcation of Charter issues in a civil forfeiture case, as that judge held at para. 42: “there is a meaningful possibility that the outcome of the Charter applications could resolve this case completely” (emphasis added). [ 130 ] Further, Saunders J.A. noted that these types of bifurcation orders engage issues of management of the trial process, for which the trial judge has considerable discretion: para. 23.

This Court has repeatedly emphasized that it must show deference to the decisions made in the trial court that have to do with management of the trial process. [ 131 ] In Lloydsmith , this Court rejected the Director’s contention that the chambers judge had not properly considered the factor of efficiency in determining that the Charter issues could be considered at this stage of the proceedings: para. 24.

This Court held: [25] In my view, it is for the judge to consider and assess the issue of efficiency, both as to judicial economy and as to the parties’ time and effort that will be expended and potentially will be saved by the proposed manner of proceeding. On the materials before us, I cannot say the standard set in Oldman River is met.

I would not interfere with the judge’s assessment of the criterion of efficiency on the record before us; I would not interfere with the order for determination of the issue of Charter breaches before the balance of the trial. [26] Nor, in my view, should we interfere with the aspect of the order permitting consideration of the s. 24 issues at this stage. At the end of the day, it may be established that the procedure adopted was not optimum.

However, now, in February 2014, I cannot say this is apparent given the manner in which these Charter issues come to court, the nature of the litigation, the high values protected by the Charter , and the broad latitude generally given to the trial court to manage its own processes. It seems to me that we should not interfere with either aspect of the bifurcation order. [ 132 ] The Court further noted that any order for severance and the resultant evidentiary ruling would be subsumed into the final judgment after trial, and so would not be beyond this Court’s review on appeal of the final order: para. 28.

The Court was reluctant to interfere with the trial court’s assessment of the efficient way of proceeding: para. 29. [ 133 ] In emphasizing the “preeminent consideration is the interests of justice” in Lloydsmith , Saunders J.A. was recognizing that all of the relevant factors should be weighed by the application judge with the overall goal of making a decision considered to be in the interests of justice in the particular circumstances of the case.

This approach incorporates the object of the Civil Rules as well as any particular circumstances that might make severance a just or unjust process. [ 134 ] This Court also recognized the fact that fundamental Charter rights can be implicated in civil forfeiture cases is an element that does not usually arise in ordinary civil litigation. It has several potential implications that may be relevant, as noted in Lloydsmith : [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.

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 . [Emphasis added.] [ 135 ] The point of the above discussion was that the context and nature of the case before the court is an important consideration on any exercise of discretion, including in considering whether to order severance.

This is consistent with the Supreme Court of Canada’s direction in Hryniak to adopt a contextual approach for these types of decisions. [ 136 ] As for the Director’s appeal in Lloydsmith of the dismissal of the application for a direction requiring completion of discovery before the determination of Charter remedies, this Court declined to interfere on the basis that it was a direction as to timing of discovery made in the management of the civil litigation process, and any complaint concerning it must await completion of the action: paras. 34, 39. [ 137 ] In the almost decade since Lloydsmith was decided, the Director has brought many more civil forfeiture actions, and defendants

have brought many more severance and postponement of discovery applications, seeking orders that determine Charter issues first. The trial court has become familiar with these kinds of cases and applications. Sometimes severance of Charter issues is ordered, sometimes it is not. [ 138 ] The Director suggests that over time, the trial court has lowered the standard for granting severance in civil forfeiture cases, and this causes practical problems, making this litigation inefficient. [ 139 ] It is not our task to review severance decisions of which the Director is critical that are not under appeal before us.

The question is whether the chambers judge in this matter erred in his approach. But respectfully, in my view, the Director’s

summary of the case law ignores the very different nature of civil forfeiture proceedings as compared to other civil litigation. Again, in many civil forfeiture cases, the determination of whether police conduct amounts to a breach of a defendant’s Charter rights is an independent issue distinct from the other factual issues on the pleadings dealing with whether the property is connected to unlawful activity, and the Charter breach issues can be decided without needing a full evidentiary record on other issues.

This is unlike other civil proceedings where the issues are often intertwined. [ 140 ] I also observe in response to the Director’s submissions, that despite the growing tide of civil forfeiture litigation, there does not appear to be any case where a trial judge has commented that a prior severance order or discovery postponement order, on issues that were ultimately decided against the applicant, resulted in the actual management of the trial being more difficult or inefficient. [ 141 ] If, as the Director implies, there was a general problem in managing the trial of these kinds of cases where there has been severance of Charter issues, I would have expected to see it reflected in the case law or raised in a subsequent appeal of a final order.

At a minimum, I would expect trial judges to know about any practical problems that have arisen in granting severance orders in civil forfeiture cases, and to express these problems in their reasons for refusing such applications. But no such trend is as of yet apparent. [ 142 ] It should also be kept in mind that losing a preliminary Charter challenge might provide a strong incentive for defendants to settle with the Director; the converse may be true too. If that is so, it would suggest that severance of these issues is efficient.

Deciding a narrower set of issues in order to encourage settlement is consistent with the goals of proportionality, including efficiency. v.

Did the Chambers Judge Err in Principle in Granting the Severance Application [ 143 ] Returning to the decision of the chambers judge in this case, after reviewing in some detail the facts and the parties’ arguments regarding Charter breaches, the judge found that it was “at least arguable” that a court would find that Charter breaches should lead to the exclusion of evidence of the seized money. [ 144 ] The judge considered the special context of civil forfeiture cases where it may be in the interests of justice to establish the legitimacy of the evidence gathered by police in advance of the determination of other issues (paras. 52, 55), whether a full evidentiary record was required to determine the issues, and whether addressing the Charter issues first would not actually save a meaningful amount of time and expense (para. 57). [ 145 ] After considering these factors, the judge concluded that the interests of justice were best served by severance of the Charter issues.

He emphasized that if Mr. Grandison’s Charter argument is successful, the trial would be more efficient as it would narrow the case at trial to one against the Vehicle only. This involves another defendant, and even if Mr.

Grandison was called as a witness, his involvement would be less than it would be if the claim against the money was disposed of: paras. 71–72. [ 146 ] In my view, the chambers judge did not err in principle in his approach. [ 147 ] The Director suggests that the chambers judge erred by not delving deeper into the analysis of whether there was a real likelihood of a Charter remedy. [ 148 ] The Director urges us to consider a test that ultimately will require the judge to determine that there is sufficient merit to the Charter breach allegations such that the remedy of exclusion of evidence is “likely” if those breaches are proven.

Only then will a severance order make sense, says the Director. [ 149 ] In my view, this position is too rigid, fails to appreciate the stage of the proceedings when these applications are brought, will unduly burden chambers judges, and is inconsistent with other severance case law. [ 150 ] Whether or not a party is likely to establish a breach of Charter rights which is likely to result in the exclusion of evidence, gets very close to the standard of proof of a balance of probabilities, which is the standard of proof to be applied on the ultimate determination of the issue.

The chambers judge on a severance application is not in a position to decide the merits of whether or not there were Charter breaches that will lead to the exclusion of evidence. Even a preliminary assessment of the merits will often be hampered by the fact that the defendant applicant will not yet have received discovery on the Charter issues, nor will cross-examination of witnesses have occurred. This militates against imposing too high a threshold for the assessment of the merits. [ 151 ] I am also of the view that the Director’s position asks

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