British Columbia's Civil Forfeiture Office has suffered a defeat in court, with a judge ruling potential Charter breaches must be dealt with before trial in a case involving a couple who had $130,000 seized from their home.
David and Jennifer Johnson's home was raided by Surrey RCMP in June, 2009. Approximately $130,000 in cash was seized from the residence. Police have alleged they also discovered a marijuana grow operation with 276 plants and 18 pounds of dried marijuana.
Criminal charges were laid against the couple, but later dropped.
The RCMP then referred the file to the Civil Forfeiture Office – a provincial government agency that has been criticized for its aggressive attempts to seize homes, vehicles and cash connected to unlawful activity, even from people who have not been convicted or charged. The Civil Forfeiture Office began proceedings in March, 2012, to seize the $130,000.
In early June, the Johnsons told a B.C. Supreme Court judge that the police search of their home violated their Charter rights. They alleged the search exceeded what was allowed by the warrant and said they weren't initially permitted to contact a lawyer. The couple also said it was unnecessary for RCMP officers to draw their guns on Mr. Johnson while he was in his vehicle, particularly since their three-year-old son was in the back seat. The Ministry of Children and Families took the child to live with his grandparents for about three months.
The Johnsons told B.C. Supreme Court their case should be bifurcated – in other words, that the alleged Charter violations should be heard before the case goes to trial. A finding that the couple's Charter rights were violated would make it much more difficult for the Civil Forfeiture Office's case to succeed. The office last year dropped at least two high-profile cases amid concerns about Charter breaches.
B.C. Supreme Court Justice Miriam Maisonville, in a judgment posted to the court website Wednesday, ruled in the Johnsons' favour.
"I am satisfied that the Charter breaches of the Surrey RCMP, if any, would have relevance to the civil forfeiture action and that it would be appropriate for the court to consider them," she wrote.
Justice Maisonville said there were "compelling reasons" to split up the case. She said the potential Charter breaches involve an examination of state behaviour. She said proceeding in stages would also "result in cost savings and enable this matter to get heard far more quickly and fairly than if all the issues were left to be decided together."
A lawyer for the Civil Forfeiture Office had argued the judge should not split up the case, because doing so wouldn't save time or money.
Matthew Jackson, the lawyer for Mr. Johnson, in an interview said his client was "delighted" by the ruling. He said bifurcation is the only way defendants in civil forfeiture cases can challenge police conduct as having been in breach of the Charter.
He said his client believes the appropriate remedy, if Charter violations are found, is dismissal of the case or exclusion of certain evidence.
Phil Tawtel, the director of the Civil Forfeiture Office, declined to comment, since the matter is before the courts.
The Globe and Mail has reported extensively on B.C.'s Civil Forfeiture Office. Critics have called the office a cash cow, and it has seized millions of dollars more than a similar office in Ontario, despite opening three years later.
The Civil Forfeiture Office, in its notice of civil claim, accused the Johnsons of using a hydro bypass to steal electricity for the marijuana grow-op. It said the search was conducted after a complaint from B.C. Hydro to the RCMP.
Criminal charges against the Johnsons were dropped after a Provincial Court judge ruled the alleged grow-op was "relatively small" and, at nearly three years, the case had taken too long to get to trial. Mr. Johnson has said he kept large amounts of cash at his home because he doesn't believe in banks or trust them.
Justice Maisonville, in her ruling, noted the B.C. Court of Appeal last year highlighted the power imbalance between the state and defendants in civil forfeiture cases.