British Columbia’s civil-forfeiture program could follow the American lead by deliberately targeting property owners with less valuable assets because they’re less likely to have the means to contest the process, a lawyer has warned the province’s highest court.
Sean Hern, a lawyer representing the B.C. Civil Liberties Association, made the comment on the second day of a civil forfeiture hearing at the B.C. Court of Appeal. The hearing involved the case of David Lloydsmith, a Mission resident whose home was subjected to a warrantless search by the RCMP in October, 2007. The Mounties discovered marijuana plants in Mr. Lloydsmith’s basement. B.C.’s Civil Forfeiture Office is attempting to seize his home, despite the fact a B.C. Supreme Court judge earlier ruled the police search violated Mr. Lloydsmith’s Charter rights.
The Supreme Court judge also said a hearing on what to do about the Charter issues should be held first, before a full discovery process and trial. The Civil Forfeiture Office appealed that decision.
The B.C. Civil Liberties Association is intervening in the case. Mr. Hern noted the vast majority of B.C. civil forfeiture cases settle, and where the asset in question is of lesser value – such as Mr. Lloydsmith’s modest home – there is less incentive to fight back.
“If the Canadian experience follows the American, it may be that proceeding against marginal assets will prove more lucrative for the director than proceeding against significant assets because the owners of the marginal assets are litigants with less ability to fight these proceedings,” Mr. Hern told the three-judge panel.
Mr. Hern said the appeal court’s ruling could effect other civil forfeiture cases. He said, “knowing that an early consideration of the police conduct may be made within these cases will no doubt cause the director to consider whether to bring such cases forward at all.”
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. Eight of 10 provinces have civil-forfeiture programs, but B.C. has been among the most aggressive in pursuing property and cash. Although it was launched three years after Ontario, the B.C. office has collected $2-million more: $41-million to Ontario’s $39-million.
Unlike Ontario, B.C. issues its office budget targets, which have gone up over the past two years. And B.C. was the first province to introduce a process known as administrative forfeiture, which makes it quicker and easier to seize property worth less than $75,000.
In B.C., about 99 per cent of the people the office targets settle on terms favourable to the office; in Ontario, the equivalent proportion is 47 per cent.
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.
The Civil Forfeiture Office does not need charges or a conviction to take on a file, and Mr. Lloydsmith’s case could determine whether it can proceed when evidence has been obtained in violation of the Charter.
Andrew Gay, the lawyer representing the office, has described Mr. Lloydsmith’s home as a proceed of unlawful activity and said the lower-court ruling forces the office to proceed with one hand tied behind its back. He said Charter issues should be dealt with at trial, not before a case gets off the ground.
Bibhas Vaze, Mr. Lloydsmith’s lawyer, has said the Civil Forfeiture Office and the province should not be permitted to benefit from the RCMP’s unlawful conduct.
Michael Fox, Mr. Vaze’s co-counsel, said Tuesday that if Mr. Lloydsmith is compelled to take part in a full discovery process he will essentially be building the Civil Forfeiture Office’s case for it.
Mr. Gay, in his closing remarks, questioned why the discovery process shouldn’t unfold as it typically would.
The appeal court panel reserved its decision. It could give oral reasons as early as Friday.
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