A father of three whose home could be seized by B.C.'s Civil Forfeiture Office says he was not living in the residence when police discovered a marijuana grow operation, and potential Charter breaches from the search must be addressed before the case can proceed to a full trial.
But the Civil Forfeiture Office – a government agency that can seize property connected to unlawful activity even from people who have not been convicted or charged – said bifurcating the case would not save time or money, and any Charter arguments should be made within the confines of a normal trial.
The case is the latest attempt by a B.C. civil forfeiture defendant to split the proceedings – a strategy that has had some recent success. Defence lawyers have said tackling such matters upfront is the only way to challenge police conduct in forfeiture files. The Civil Forfeiture Office has continued to pursue marijuana cases aggressively, even as some police forces in the province have taken a hands-off approach to the drug and the new federal Liberal government has promised to legalize it.
Monday marked the beginning of a two-day B.C. Supreme Court hearing in the forfeiture case of Shawn Cronin.
Kenneth Beatch, Mr. Cronin's lawyer, told the court his client bought the Maple Ridge home from his father in February, 2010. Police searched it in August of that year, but Mr. Beatch said the house was being rented at the time. Mr. Cronin has said in court documents that he did not move into the residence until October, 2010.
Mr. Beatch said Mr. Cronin was arrested after pulling up to the home, going inside and returning to his vehicle with a cardboard box. Police had been watching the home after obtaining a warrant to search it – they ultimately searched both the residence and Mr. Cronin's vehicle.
The Civil Forfeiture Office has said the box found in Mr. Cronin's vehicle contained marijuana plants and $5,800 cash, although its counsel said on Monday it is arguable the vehicle search was a Charter breach.
But Jeremy Poole said the forfeiture office does not believe the Charter breaches extend to the search of the property.
Mr. Beatch disagreed and criticized the information that led to the issuance of the warrant. He said the information to obtain was based on the presence of the odour of marijuana, hydro readings police believed were too high and a heightened heat signature.
"Mr. Cronin states the way that the odour of marijuana was isolated to the residence is very highly problematic," Mr. Beatch said.
"… The hydro readings are very questionable, as the officer reached the conclusion they were elevated by comparison to his own residence. And the [forward-looking infrared cameras] only detect heightened heat signatures and that is, of course, consistent with all kinds of [innocent] reasons."
Mr. Beatch's application asked that the case be dismissed or stayed. Mr. Cronin had been charged criminally with possession for the purpose of trafficking and production of a controlled substance, although charges against him were dropped in 2013 because the case was not heard within a reasonable time.
Mr. Poole argued Mr. Cronin does not have adequate standing to challenge the search of the property if he did not reside there, a point Mr. Beatch again disputed.
In July, a B.C. Supreme Court judge granted an application from a Surrey couple to have their forfeiture case bifurcated. About $130,000 was seized from their home in June, 2009.
Matthew Jackson, the lawyer for the husband in the case, said at the time bifurcation is the only way defendants in such cases can argue police conduct violated the Charter. The case will be back in court in February.
The Civil Forfeiture Office last year abandoned the case of David Lloydsmith after a judge determined the Charter issues in his case would have to be dealt with before a full trial.
The Globe and Mail has reported extensively on B.C.'s Civil Forfeiture Office, which has been criticized for its aggressive attempts to seize homes, vehicles and cash connected to crimes. The office was introduced as a way to fight organized crime, but has come to have a far broader reach. Critics have questioned some of the cases it takes on, calling it a cash cow.
B.C. Justice Minister Suzanne Anton has repeatedly defended the office, saying it only pursues cases in the public interest.