British Columbia’s highest court has dealt a blow to the province’s Civil Forfeiture Office, dismissing its appeal in a case in which it is trying to seize the property of a man whose rights were violated in a police search, and saying an imbalance of power can put ordinary citizens at the mercy of the government agency.
Civil forfeiture critics say the ruling sets a precedent and hope it makes the office think twice about taking on cases in which evidence was unlawfully obtained.
The B.C. Court of Appeal ruling was delivered on Friday in the case of David Lloydsmith. RCMP searched the home of Mr. Lloydsmith, a resident of the Fraser Valley community of Mission, in October, 2007. An officer told Mr. Lloydsmith he was investigating a 911 call. The homeowner was arrested when he refused to let the Mountie in. Police searched the home and found marijuana plants.
Mr. Lloydsmith was not charged, but the forfeiture office is attempting to seize his home as proceeds of crime based on the evidence from the search.
A B.C. Supreme Court judge called the search “warrantless” and “unreasonable” and ruled it violated Mr. Lloydsmith’s rights under the Charter of Rights and Freedoms. He said what actions are needed regarding the violations would have to be determined before the forfeiture case could begin. The agency appealed that decision.
In its unanimous ruling on Friday, the three-judge Court of Appeal panel said there is “no proper basis” for the court to intervene and the lower-court judge can determine how to proceed.
Justice Mary Saunders, who delivered the decision, said several civil forfeiture cases are going through B.C. Supreme Court in which the defendant was neither charged nor convicted. She said such cases have “an extra element. And that is the jeopardy faced by a civilian at risk of losing a great deal and at risk of being labelled a criminal.”
Given the high stakes and power difference between the parties, she said, “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.”
Justice Saunders said Mr. Lloydsmith’s case could be dismissed or the police evidence could be ruled inadmissible. Mr. Lloydsmith’s lawyers want the case dismissed.
In her decision, Justice Saunders criticized the Civil Forfeiture Office for referring to Mr. Lloydsmith by his surname in its court documents. She said that is “a rather old-style manner of referring to an offender that the courts have moved away from, and [is] inconsistent with the decorum generally demonstrated in court documents filed in civil proceedings.”
She asked the office to show greater respect.
Bibhas Vaze, Mr. Lloydsmith’s lawyer, said in an interview the appeal court’s decision vindicates the arguments that his client’s rights should be protected.
“Today is a good day for the maintenance of everybody’s cherished rights and freedoms, and to be free from unlawful state intrusion,” he said.
Andrew Gay, the office’s lawyer, declined to comment.
Raji Mangat, a lawyer with the B.C. Civil Liberties Association, which intervened in the case, said the ruling could benefit other defendants. She said anyone whose case involves a potential Charter breach could find it easier to deal with that issue before a full and expensive trial.
“There’s now a precedent where that has been permitted to stand,” she said.
Ms. Mangat expressed hope the office will now think long and hard about taking on such cases.
Jay Solomon, a Vancouver lawyer who has worked on civil forfeiture cases, said it was “gratifying” to hear the appeal court recognize the system’s power imbalance. He was skeptical, however, that the ruling would dissuade the office from taking on cases with Charter violations.
B.C.’s Civil Forfeiture Office was created in 2006 to fight organized crime, but a months-long Globe and Mail investigation has found it now has a wider reach, and questions have been raised about fairness, public interest and transparency.
Three B.C. Liberal caucus members, the province’s Official Opposition and a former Liberal attorney-general have suggested the Civil Forfeiture Act should be reviewed. Justice Minister Suzanne Anton, however, has said a review is unnecessary and the office is working as it should.
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