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British Columbia Hells Angels civil-forfeiture trial finally set to begin in B.C. Supreme Court

More than a decade after British Columbia’s Civil Forfeiture Office moved on a Hells Angels clubhouse in the Vancouver Island city of Nanaimo, the trial that could reshape the way the government agency operates is finally set to begin.

The office, which has netted more than $80-million in property since it opened its doors in 2006, plans to argue the clubhouse − as well as Hells Angels clubhouses in Vancouver and Kelowna that have been added to the case − are likely to be used to commit crimes in the future. The office has said the Hells Angels have a violent reputation and commit serious offences for their benefit.

Lawyers for the Hells Angels are expected to counter that a section of the province’s civil-forfeiture legislation is unconstitutional and the B.C. government has created a new criminal process that lacks the presumption of innocence and the right against self-incrimination.

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The trial, which opens Monday in B.C. Supreme Court in Vancouver, is expected to run for approximately five weeks and feature the testimony of several Hells Angels members as well as RCMP officers.

The Globe and Mail has reported extensively on the B.C. Civil Forfeiture Office, which does not need a criminal conviction or charges to pursue a file. The office was billed as a way to fight organized crime but has come to have a far broader reach. The Globe has interviewed those who have had to fight to keep their homes, vehicles and cash. Others have been unable to afford to mount a defence. Cases led by the office face a lower standard of proof than criminal cases − on a balance of probabilities rather than beyond a reasonable doubt.

In a 2016 report, the Canadian Constitution Foundation said civil-forfeiture programs across the country − eight, in total − trampled on the rights of citizens and seized property from innocent people. It gave the civil-forfeiture regimes in B.C. and Ontario a grade of “F.”

B.C.’s NDP government, which had called for a review of the Civil Forfeiture Act when it was in opposition, has since said it does not plan to order one. The province’s Public Safety Minister, Mike Farnworth, has said the office is operating as it should.

The Hells Angels case has drawn complaints about the civil-forfeiture process from not just the group itself, but also from civil libertarians.

Micheal Vonn, policy director for the B.C. Civil Liberties Association, in an interview said its position has long been that there should not be a civil-forfeiture system.

She said the cases the office takes on are criminal in nature but do not offer due process.

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“This case really exemplifies in many ways what the problem is. We’ve always said, essentially, that it is an end-run around the criminal process,” she said.

She said Canada is a country of laws and there cannot be different rules for different people.

“This notion of, ‘nudge-nudge, wink-wink, we all know who’s guilty and who’s innocent,‘ that view − you’re allowed to hold it and I will defend your right to put it on a placard and parade it up and down the street − but it has no place in a courthouse,” she said.

Joseph Saulnier, chair of the Vancouver criminal section of the Canadian Bar Association’s B.C. branch, in an interview said the Civil Forfeiture Office has become more and more aggressive.

He said the office’s case relies on “this sort of speculative basis to claim that in the future there might be this unlawful activity.”

A Ministry of Public Safety spokesperson said it would be inappropriate to comment while the matter is before the court.

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In an interview regarding civil forfeiture last year, Minister Farnworth said the office has experienced “some growing pains,” but he believes the appropriate checks and balances are in place and the office is “being used the way that it is supposed to be used.”

The minister on Friday announced $6.5-million in community grants, with more than $5-million of that funding coming from the office.

Of the $82-million in property the office has obtained since it began operations, $37.5-million has been paid out in grants, while $1.6-million has compensated victims. The remaining $43-million has gone to the office’s operating costs, with approximately two-thirds of that money covering legal bills.

A second constitutional challenge involving the office was filed earlier this year and stems from a 2015 police search of a Vancouver home that turned up hundreds of marijuana plants.

The office launched its case involving the Nanaimo clubhouse in late 2007. It began proceedings against the Vancouver and Kelowna clubhouses in 2012.

In 2015, the office applied to amend its pleadings for a fifth time and also asked that the cases be heard together.

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Supreme Court Justice Barry Davies had said most of the allegations involving the Nanaimo clubhouse stemmed from a lengthy RCMP investigation dubbed Project Halo. He said the investigation did not result in the prosecution of criminal charges but the details were passed on to the director of civil forfeiture. He said the allegations against the Vancouver and Kelowna clubhouses were far less specific and far more dated.

The office abandoned part of its argument in the 2015 application. It said it would no longer claim the clubhouses were proceeds of unlawful activity that had been used to engage in crime in the past. It said it would instead rely on its argument that the clubhouses were instruments of unlawful activity that would be used for crime in the future.

The defendants opposed the amendments and although Justice Davies said there might be merit to the constitutionality claim, he granted the office’s requests.

Rick Ciarniello, a Vancouver Hells Angels spokesperson, declined to comment ahead of the trial.

In a 2013 statement on the civil-forfeiture battle, Mr. Ciarniello said: “This legislation should trouble everyone and not just our members. Governments everywhere are now routinely using these ‘civil forfeiture’ laws as a substitute for the criminal process.”

He said most people cave when faced with forfeiture lawsuits because of the high cost.

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“It is just too expensive and stressful to fight back when faced with the resources of the state. We aren’t going to do that and our fight will be for all British Columbians,” he said.

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