In a civil forfeiture proceeding under the Civil Remedies Act, the Attorney General brought a motion to compel cross-examination on affidavits originally sworn in related Criminal Code s. 490 proceedings but later appended as exhibits to an affidavit filed in the civil application.
The respondent argued that the affidavits were “spent,” that cross-examination would constitute a collateral attack on the earlier order returning the funds, and that res judicata applied.
The court held that where affidavits are appended as exhibits to a solicitor’s affidavit and filed in the proceeding, they are deemed to be filed as part of the application.
Because the respondent had an adverse interest in the seized currency and relied on the exhibit affidavits, the Attorney General was entitled to cross-examine their deponents.
The doctrines of collateral attack and res judicata did not prevent cross-examination at this stage.
