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B.C. forfeiture office drops second case to seize house involving possible Charter breach

David Lloydsmith at his home on November 29, 2013.

John Lehmann/The Globe and Mail

British Columbia's Civil Forfeiture Office has abandoned a case in which a man faced the prospect of losing his home due to a warrantless search – the second high-profile case the government agency has dropped in as many months amid concerns about how the evidence was obtained.

The office, which has faced questions of fairness and transparency after a recent Globe and Mail investigation, has filed a notice of discontinuance in its case against Robert Murray – though it would not say if it would stop pursuing altogether cases involving potential Charter breaches.

In April, the office abandoned the case of David Lloydsmith. A judge had earlier ruled a warrantless police search of Mr. Lloydsmith's home that turned up marijuana plants was in violation of the Charter of Rights and Freedoms. Charges were never laid against him, but the Civil Forfeiture Office pursued Mr. Lloydsmith's modest residence for years, taking the matter all the way to the province's highest court before suddenly throwing in the towel.

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Mr. Murray's case raised similar concerns. He planned to argue that a February, 2012 police search of his property that yielded 72 marijuana plants violated his Charter rights because it was conducted without a warrant. He, too, had not been charged.

Mr. Murray, in an interview, said he felt vindicated. "The only thing I'm guilty of is smoking weed," he said.

The office did not give a reason for abandoning the case. It acknowledged such instances are rare – only three notices of discontinuance were filed during the eight-month period from August, 2013 to March, 2014.

Mr. Murray's home, near the southeastern B.C. community of Nelson, wasn't the only property seized after the police search.

The Globe previously spoke with Bill Pundick, a pensioner who had been living in a separate cabin on Mr. Murray's property. Mr. Pundick's decades-old currency collection, worth $9,251, was seized before a judge ordered that it be returned, saying it was clear the money had been lawfully obtained.

Mr. Murray's property went into foreclosure after the search and was sold at auction in early April. He said he will get to keep the proceeds, but estimated that he lost between $50,000 and $75,000 on the property.

He said news that the Civil Forfeiture Office was abandoning the case came out of the blue.

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He had thought a February decision from the Court of Appeal in Mr. Lloydsmith's case would bode well for him. The ruling from the province's highest court meant the Charter violations in Mr. Lloydsmith's case would have to be dealt with before a full trial. The appeal court also cited the power imbalance in the civil-forfeiture system between the government agency and defendants.

But despite the appeal-court decision, Mr. Murray said the office wouldn't budge on his case in the immediate aftermath of the ruling. He said he was told it still wanted him to pay $20,000. Then $15,000, then $10,000, and then nothing.

He said he was not given an explanation for why the case was dropped, though he said the attention it received likely helped.

Mr. Murray, like Mr. Lloydsmith, described going through the civil-forfeiture process as traumatic.

"The amount of anxiety was overwhelming. I cannot explain to you what the year 2012 was like. It destroyed me. It put me into a huge depression," he said. "Even thinking back to it, I'm like, 'Holy Christ.' I remember those feelings. It was intense."

Mr. Murray said he almost feels lucky when compared with other defendants in civil-forfeiture cases. While he lost a significant sum of money, he didn't lose everything, as others have, he said.

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The Civil Forfeiture Office put out a written statement but did not explain why it dropped the case. It said all files are evaluated on an ongoing basis.

When asked if the office would stop taking on cases that involved potential Charter breaches, a spokeswoman wrote that the courts will continue to provide guidance on how the Civil Forfeiture Act should be interpreted and what constitutes the "interests of justice."

The office's director must assess four factors before taking on a case: the interests of justice, strength and adequacy of evidence, fiscal considerations, and public interest.

The Globe's investigation found the office, which was created in 2006 to fight organized crime, has come to have a far broader reach. The office does not need a conviction or even charges to pursue a file, and B.C. has been far more aggressive in seizing property than other provinces.

The office's director last year told The Globe that 99 per cent of the people the office targets settle on terms in its favour.

B.C. Justice Minister Suzanne Anton has repeatedly defended the civil-forfeiture program, saying it is working as it should. There have been calls from three B.C. Liberal caucus members, the Official Opposition, and both a former solicitor-general and a former attorney-general for a review.

Critics have said the penalties handed out in civil-forfeiture cases can be wildly disproportionate to the alleged offence and that the program is a cash cow.

Jay Solomon, a Vancouver lawyer who has worked on several civil-forfeiture cases, was skeptical the office would stop taking files involving potential Charter violations. In fact, he said he spoke with another lawyer earlier this week who just agreed to defend a property owner in a similar case.

"I really doubt that they still get it," he said in an interview. "They still don't get the fact that the public does not want Civil Forfeiture to be coming after properties where the marijuana was discovered as a result of violations of Charter rights. The public doesn't want the Civil Forfeiture Act to be used in that way, I'm convinced of that."

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