British Columbia's civil forfeiture regime violates the Canadian Charter of Rights and Freedoms by forcing individuals to produce evidence against themselves and by resulting in penalties that are grossly disproportionate, says a new constitutional challenge.
The case, which will proceed to trial in B.C. Supreme Court in November, stems from a 2015 police search of a multimillion-dollar home on Vancouver's west side that turned up hundreds of marijuana plants. It is expected to be the second constitutional case involving B.C.'s Civil Forfeiture Office heard this year; a case involving the Hells Angels is scheduled for April.
The Globe and Mail has reported extensively on the Civil Forfeiture Office, which was established as a way to fight organized crime but has come to have a far broader reach. The office does not need a criminal conviction or even charges to pursue a file. The Globe has interviewed those who have had to fight to keep their homes, vehicles, money and even a coin collection. Others have been unable to afford to argue their case.
B.C.'s NDP government, which had called for a review of the province's 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.
Bibhas Vaze, a lawyer for the homeowner in the most recent case, said in an interview that the file "brings together all the different elements about what is wrong with civil forfeiture and why there needs to be changes."
In its notice of civil claim, the Civil Forfeiture Office said the defendant, Kwok Wai (Andy) Liu, purchased the home in March, 2012. It said Mr. Liu granted the Vancouver Police Department access to the property in September, 2015, at which point officers discovered approximately 700 to 750 marijuana plants.
The office has said 10 kilograms of dried marijuana, "packaged in a manner consistent with drug trafficking rather than personal consumption," were also found, as were three Health Canada licences allowing for personal production of cannabis. Each licence authorized the growth of 146 plants.
The property was sold in October, 2016, for approximately $3.1-million. The money is being held by the court until the case is resolved. The office has said Mr. Liu would not have been able to afford the home unless he trafficked marijuana. It has said money from the sale should be forfeited to the province.
In his response, Mr. Liu said the Civil Forfeiture Act violates the Charter.
He said officers entered his property without a warrant and any plants or harvested marijuana was lawfully produced and processed under the Health Canada licences.
Mr. Liu said he suffers from chronic pain as a result of a motor vehicle accident and his physician prescribed medical cannabis. He said he agreed to allow a friend and her mother, who like him had Health Canada licences, to grow at the property.
Mr. Liu said Vancouver police did not forward his file to the Crown to consider criminal charges but did send it to the Civil Forfeiture Office, which faces a lower standard of proof – on a balance of probabilities instead of beyond a reasonable doubt.
He said individuals who face civil forfeiture cases do not have adequate protections, including but not limited to the presumption of innocence and the right to not be compelled by the state to testify against oneself.
Mr. Liu is seeking several declarations, including one that would see the right to silence apply to civil forfeiture proceedings and one that would state the application of the Civil Forfeiture Act can lead to results that are grossly disproportionate to the alleged unlawful activity.
"At the end of the day, this act as it's written has the potential and we say actually has led to widespread abuse in a manner that breaches the Section 7 [Charter] rights of the common citizen," Mr. Vaze said, noting that defendants in civil forfeiture cases are also not eligible for legal aid.
In a written statement, Phil Tawtel, B.C.'s director of civil forfeiture, said he could not directly comment on the case.
"What I can say generally is that every civil forfeiture case depends on the quality of the related criminal case file referred by a police agency, and that at this time, unlicensed production and distribution of marijuana remain illegal," he said.
When asked what impact the impending legalization of marijuana would have on the office's operations, Mr. Tawtel said it was too early to tell.