Jul 11, 2017

Police stopped a vehicle driven by the Applicant as part of an impaired safety road check. The Applicant’s insurance had expired. Police noticed a strong odour of vegetative marihuana and a faint odour of smoked marihuana coming from inside the car and, later, an odour of vegetative marihuana coming from his person. He was arrested for possession of marihuana and cautioned. In conducting the search incidental to the arrest, police found on the Applicant a large pocket knife, two cellphones and $1,015 in cash he claimed to have won playing cards. In the vehicle they found: a Blackberry cellphone; two income tax statements in his name; two sleeping bags; a metal pipe; bear spray; a tied-up grocery bag containing six separate bundles of money totalling $28,200, one of which contained $10,000 and was vacuum-sealed; and a hard plastic bag containing a silver bag which the arresting officer later deposed is an item commonly used in transporting marihuana. A police dog trained in the detection of narcotics indicated he detected the odour of narcotics in three locations inside closed cabinets, in which portions of the currency from the Applicant’s vehicle had been hidden. The Applicant was charged for possession but the Crown stayed the charge a year later. The Respondent filed a Notice of Civil Claim (Civil Forfeiture) alleging, inter alia, that the vehicle had been used to facilitate the trafficking of illegal drugs and the money had been provided by purchasers of illegal drugs. The Respondent sought orders the vehicle, the money and the cellphones and their “fruits or proceeds” be forfeited pursuant to s. 5(2) of the Act. The Applicant opposed the orders, denying any of the items seized were proceeds or instruments of unlawful activity and asserting as the searches had been contrary to his Charter rights, the evidence should be excluded. The Respondent brought an application for a preservation order under s. 8(5) of the Act. The B.C.S.C. granted the application, finding a serious question to be tried. The B.C.C.A. dismissed the appeal. "The application for leave to appeal...is dismissed with costs."