The province of British Columbia should not be able to benefit from unlawful conduct, a lawyer said in the B.C. Court of Appeal, on the first day of a civil forfeiture hearing that could impact many more cases.
The two-day hearing in the province's highest court involves the case of David Lloydsmith, a resident of the Fraser Valley community of Mission whose home was searched by police in October, 2007.
Mr. Lloydsmith earlier told The Globe and Mail how an RCMP officer showed up on his doorstep and said he was investigating a dropped 911 call. The officer asked to search Mr. Lloydsmith's residence, a request the homeowner declined.
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, ultimately finding marijuana plants in the basement.
Mr. Lloydsmith was arrested but never charged. The province's Civil Forfeiture Office is attempting to seize his home, despite the fact a B.C. Supreme Court judge earlier called the police search "warrantless" and "unreasonable" and said it breached Mr. Lloydsmith's Charter rights.
The Supreme Court judge 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 has appealed that decision.
The 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. In a testament to the importance of the case, the B.C. Civil Liberties Association has decided to intervene.
Andrew Gay, the lawyer representing the office at the appeal court Monday, 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.
But Bibhas Vaze, Mr. Lloydsmith's lawyer, said the hearing hinges on police conduct and questioned what impacts failing to respect the Charter would have.
"What is going to happen next, when agents of the state, in this case police officers … do not have proper grounds for going into somebody's home? What is going to happen when they are wilfully neglecting the Charter en masse, as we submit happened in this particular case?" Mr. Vaze asked the three-judge appeal-court panel.
Mr. Vaze said the state should not be permitted to benefit from the unlawful conduct of police.
He described the police search as "egregious" and said his client's role is for the case to ultimately be dismissed.
The appeal-court judges questioned Mr. Gay on whether the office should even have filed the appeal since Mr. Lloydsmith's actual trial has not been completed. Mr. Gay said the lower-court judge's decision was incorrect, and that it would be inefficient to deal with the Charter issue before the full discovery process and trial.
B.C.'s Civil Forfeiture Office was created in 2006 to fight organized crime, but a months-long Globe 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. Alberta and Manitoba have since also introduced administrative-forfeiture programs.
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 legislation should be reviewed. Justice Minister Suzanne Anton, however, has said a review is unnecessary.
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