It was Oct. 15, 2007, when the RCMP officer knocked on David Lloydsmith’s door.
Mr. Lloydsmith, a former electrician on partial disability living in the Fraser Valley community of Mission, was told the officer was investigating a dropped 911 call. Mr. Lloydsmith lived alone and said he hadn’t touched the phone.
The officer asked to come in and search the residence, according to court documents. Mr. Lloydsmith declined several times and finally moved to close the door. The officer then forced his way in and put Mr. Lloydsmith in handcuffs. A second officer arrived within minutes and the Mounties began their search.
They eventually found marijuana plants in the basement. Mr. Lloydsmith was arrested, but released without charges. The initial officer wrote in a report that the offence was “minor” and, with the plants removed from the home, public interest had been met.
Mr. Lloydsmith thought the ordeal was over. But three years later, the province’s Civil Forfeiture Office moved to seize the residence. The legal battle continues, despite an earlier ruling that the evidence collected against him was in breach of the Charter. A judge described the search as “warrantless” and “unreasonable.”
Mr. Lloydsmith is one of the hundreds of British Columbians who have become caught in the relatively new spectre of civil forfeiture – a process originally intended to fight organized crime that has come to have a much wider reach.
A Globe and Mail investigation spanning several months and more than two dozen interviews has found the Civil Forfeiture Office has rapidly increased the number of files it accepts and the amount of money it brings in, while remaining largely out of the public eye. But as the scale of the forfeitures has grown, so too have concerns about fairness, public interest, and transparency.
Documents obtained through freedom of information (PDF) show how the office’s policy works when it comes to accepting files. The office does not investigate cases itself and instead relies on referrals from law-enforcement agencies.
The documents say the director must assess a file on four grounds before accepting: public interest, strength and adequacy of evidence, fiscal considerations, and interests of justice.
The office does not need criminal charges, or convictions, to move on a property and the penalty – losing one’s home, for instance – can seem disproportional to the alleged offence. The burden of proof is lower in civil court than criminal, on a balance of probabilities instead of beyond a reasonable doubt. Evidence that could be seen as unfit for criminal court can be seen as fit for civil court.
Ontario was the first jurisdiction in Canada to introduce civil forfeiture (timeline), and eight of 10 provinces have such programs today.
B.C., despite opening three years after Ontario, has taken in more money than Ontario and critics have contended it’s operating as an end-run on the justice system.
The office’s executive director said 99 per cent of the people the office targets settle on terms favourable to the office. Unlike Ontario, B.C. has a budget target it must meet. And cases that in the past have been conducted as offences under the Motor Vehicle Act, Wildlife Act or Employment Standards Act, for example, are being pursued under the Civil Forfeiture Act.
B.C. Justice Minister Suzanne Anton expressed her support for the system and said the program meets the public interest. The minister also noted many millions of dollars have been handed out to community associations and police as a result of the office’s work.
“The public has a very strong interest in seeing that people do not keep ill-gotten gains,” she said. “And that’s why generally there’s public support for this Civil Forfeiture Act.”
Civil forfeiture itself is not a new concept. Its roots date back about a millennium, to Europe. Modern civil forfeiture, however, evolved in the United States, where it was brought in to target drug lords but has grown controversial in recent years. Controls have appeared lax and the programs have developed into cash cows.
Ontario was the first Canadian province to introduce civil forfeiture legislation. The Civil Remedies for Illicit Activities Office opened in 2003. In 2009, Ontario’s legislation withstood a challenge in the Supreme Court of Canada in a case commonly known as Chatterjee. The court ruled the Ontario legislation did not conflict with the Criminal Code.