VICTORIA - A B.C. Supreme Court justice has turned down an application by the government to seize the motorcycle of a man clocked going more than three times the speed limit.
The decision is being lauding by the man's lawyer who said it could have been used as a precedent for the government to seize property for the simple act of speeding.
Jason Alan Dery was clocked driving his Ducati motorcycle at more than 200 kilometres an hour in a 60 kilometre-an-hour zone on July 2, 2011 while on a road near Victoria, B.C.
The director of civil forfeiture then took him to court in an attempt to seize the bike valued by the government at between $7,400 and $12,200.
B.C. Supreme Court Justice Gregory Bowden said in a ruling posted online Friday he was unaware of any other reported decisions of a court in B.C. or another province that considered seizing such property for a motor-vehicle offence.
The majority of the cases cited by counsel were against property used for the cultivation of marijuana, he noted.
Bowden said while he didn't condone Dery's behaviour, the government didn't prove the defendant's actions amounted to dangerous driving under the Criminal Code or did it prove the bike was an "instrument of unlawful activity" under the Civil Forfeiture Act.
Barclay Johnson, Dery's lawyer, called the proceedings a "test case," and a victory for the government that would have set an important precedent for the Crown.
"This would have been the first case in British Columbia that would have given a green light to civil forfeiture proceedings for simple speeding," he said, adding the Crown rolled the dice and lost.
Johnson questioned using civil forfeiture laws to go after speeders when a mechanism exists through ICBC to deal with the issue. He said the focus should remain on the driver and not his property.
He said if somebody breaks a speeding law, the person should have to pay a fine, and if the offence is bad enough, their licence should be taken away, and in the most-severe cases a driver should face a life-time ban.
"There's a pretty severe system of penalties already in existence that deal with road offences," he said.
The Ministry of Justice declined to comment because there's a 30-day appeal period, adding in an email that a final decision on an appeal will be made in the coming weeks.
Bowden said the defendant's "uncontradicted" evidence" for the July 2, 2011 event was that the road was long and straight, the weather was sunny and clear with good visibility, its surface was dry and there were no other vehicles on the road or in sight.
He said there were no pedestrians on the road or in sight, and the Ducati was in perfect working condition and its breaks and tires had recently been replaced.
Dery has committed 39 motor-vehicle offences and received five 24-hour driving prohibitions since 1990 and paid fines, victim-surcharge levies and driver-penalty points totalling $3,600, said Bowden.
Bowden said Dery has been sufficiently penalized for his past behaviour "to be deterred from such behaviour in the future."
Sgt. Steve Eassie of the Saanich Police Department said the director of civil forfeitures didn't provide enough information for a decision to be rendered in the prosecution's favour.
He said the area in question attracts people who like to "test out their vehicles," because it is a long, straight section of road, but the speed limit is 60 kilometres an hour, and the road is used by pedestrians, cyclists other motorists and even wildlife like deer.
Eassie said police will continue to enforce speed limits, and reminded those who want to lawfully test their bikes to use speedways on south and central Vancouver Island.
"There are ways that people can lawfully do that, but I'm not aware of any area where they can lawfully do so on the roadway itself."
-- by Keven Drews in Vancouver