Vancouver Police Inspector Brad Desmarais hold up a photograph of a marijuana grow operation found in one of the most valuable properties ever forfeited in the Lower Mainland during a press conference at City Hall in Vancouver, January 11, 2011.Rafal Gerszak/The Globe and Mail
Major police forces throughout British Columbia say they have no set procedures for deciding when to recommend that the province's Civil Forfeiture Office move to seize property, even as the number of cases swell.
Police say they can choose any case they believe to involve illegal activity to send on to B.C.'s Civil Forfeiture Office, although that belief is often never tested in court, and only significant cases are forwarded.
Interviews with representatives of several police forces show that while the Civil Forfeiture Office has publicly available grounds it must consider before accepting a referral, there are no equivalent criteria for police.
Sergeant Lindsey Houghton, a spokesperson for B.C.'s Combined Forces Special Enforcement Unit, the province's anti-gang task force, said there is no defined policy on what makes a case fit for forfeiture. Sgt. Houghton said his department only forwards cases with links to drugs or organized crime, since investigating such people is its mandate. "Each case is independent of any other case. There's an infinite number of variables," he said in an interview.
Even defence lawyers who represent people who've had property seized say it can be difficult to tell why police refer a particular case. "In terms of what criteria they use, it's really very difficult to know," said Jay Solomon, a Vancouver lawyer who has worked on civil-forfeiture cases. "… It seems to me ad hoc because I come across some cases where I'm surprised that the police have not referred the case to civil forfeiture, and vice versa."
An information-sharing agreement between the office and B.C.'s various police departments, released through freedom of information requests, lays out any number of details on the minutiae of the process, including security procedures, but it is silent on what it is that makes a file suitable for referral, noting that the civil-forfeiture director has the authority to pursue any proceeds or instruments of unlawful activity. Justice Minister Suzanne Anton has said the term "unlawful activity" covers a wide range of offences.
The Civil Forfeiture Office cannot investigate cases on its own and instead relies on referrals from law enforcement. Policy documents released through freedom of information show the office's director must assess a file on four grounds before accepting: public interest, strength and adequacy of evidence, fiscal considerations, and interests of justice. Exactly what makes a case of public interest, or how strong the evidence has to be, is not made clear.
The office was created in 2006 to fight organized crime, but a months-long Globe and Mail 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 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. The referral process can be especially important in administrative forfeiture cases since the evidence is less likely to be tested in court.
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.
Of the approximately 1,900 files that have been referred to the B.C. office since its inception, the Ministry of Justice said 1,220 have come from the RCMP. An RCMP spokesman at the Lower Mainland's "E" Division headquarters declined to answer questions about the civil-forfeiture referral process.
Separately, RCMP Inspector Richard Konarski, who stressed he could only speak for his Mission, B.C., detachment, said officers don't set out to open civil-forfeiture cases and criteria for what makes one suitable can vary. "Really, for me, all I know is if it's a legal tool that I can use then I'd be foolish not to make use of it," Insp. Konarski said. "[I] don't wake up in the morning, rub my hands and say, 'Hey, civil forfeiture, who should we take stuff from today?'"
The ministry said CFSEU, the anti-gang task force, has forwarded 21 files to the Civil Forfeiture Office since the office's inception. The Vancouver Police Department has referred 85 cases and its spokesman, Sergeant Randy Fincham, also said the criteria can vary, and there is not a specific checklist that needs to be met.
Rob Gordon, a criminology professor at Simon Fraser University, said he views the civil-forfeiture process is a valuable tool if narrowly and fairly applied to organized crime. "Of course, what often happens is it drifts on the corners because people start to get inventive and forget the reasons why a lot of these provisions were put in place in the first instance," he said in an interview.
A former Liberal MLA who's also a lawyer has said the office's conduct can amount to "bullying" and the opposition NDP has described the program as a "cash cow" and said it would support a review.