British Columbia's Civil Forfeiture Office is attempting to seize a vehicle from a youth over a $20 crack transaction, arguing it is permitted to confiscate the car because the defendant used the proceeds of drug activities to pay for it.
The civil forfeiture office has come under heightened scrutiny after a months-long Globe and Mail investigation revealed the agency's scope has expanded significantly beyond the original promise of targeting the proceeds of organized crime. In this case, questions of fairness are being raised after the office proceeded against the young offender as it would an adult. The defendant was charged under Canada's Youth Criminal Justice Act, but the province's civil forfeiture act makes no distinction on the basis of age.
In court documents, the office says the defendant is the registered owner of a vehicle that, in June, 2013, was observed in a minor drug exchange by North Vancouver RCMP. The transaction allegedly occurred between a passenger in the defendant's car and a pedestrian. The pedestrian, the defendant and the passenger were each arrested and the Civil Forfeiture Office argues in the court documents that the vehicle should be forfeited because proceeds from drug activities were used to pay for it.
And even if they weren't, the document says, "the defendant used proceeds from the trafficking of illegal drugs to pay other expenses and would not have had sufficient legitimate income to pay both the vehicle costs and other expenses."
Through the investigation, The Globe has learned the office may move to seize property large and small, from houses and luxury cars to items as small as cellphones. The office was created in 2006 to fight organized crime, but it now has a wider reach and questions have been raised about fairness, public interest and transparency. Because the cases are pursued under civil law, no criminal charges or convictions are necessary for the office to proceed. Cases are referred to the office by law enforcement and the office assesses whether proceeding is in the interests of justice and whether it makes economic sense to litigate, among other criteria.
Three Liberal caucus members, the B.C. 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.
The Globe searched the B.C. Supreme Court registry and found five other cases in which the civil forfeiture office went after the property of youths. There could be more: Property worth less than $75,000 can be seized without going to court and would not appear in court documents, a process called administrative forfeiture.
Micheal Vonn, policy director with the B.C. Civil Liberties Association, said it took decades to craft an appropriate response to youth in the criminal justice system, nuances that are not being considered when it comes to civil forfeiture cases.
Ms. Vonn said it's important to ensure "we are not prejudicing youth in terms of their future life chances because of indiscretions that can occur when we are young."
She noted it is hard enough for adults to defend themselves against the Civil Forfeiture Office and she questioned what chance a youth would have.
"We talk about the disproportionate power dynamics between the lawyers for the state versus what are invariably unrepresented clients. When we start levelling that against youth, we are really talking about an almost unspeakable David and Goliath situation," Ms. Vonn said in an interview.
A spokeswoman for B.C.'s Ministry of Justice could not say how many cases involving youth the Civil Forfeiture Office has taken on. The spokeswoman, in an e-mail, wrote the office does not track files according to the age of the person involved. Anecdotally, she said a "very small percentage" of files involve youths.
An Ontario government spokesman said that province's civil forfeiture office does not track the ages of people subject to civil forfeiture proceedings.
In the North Vancouver case last year, the court documents say, the pedestrian was arrested and found to be in possession of $20 worth of crack cocaine.
The defendant and his passenger were also arrested. The document says RCMP searched the vehicle and found a box containing steroids and syringes, a $20 bill, and a cellphone.
The Civil Forfeiture Office, in the court document, says the vehicle should be seized because otherwise, it will likely be used in further drug transactions.
Corporal Richard De Jong, spokesman for the North Vancouver RCMP, said the detachment does not treat youths differently when it comes to the civil forfeiture process.
"It's pretty standard operational practice now to go at civil forfeiture [for] any property, any vehicle associated to the offence," he said in an interview.
The Civil Forfeiture Office's notice of civil claim does not indicate whether the youth was charged with an offence, but Cpl. De Jong confirmed he was charged with drug trafficking, though the police spokesman said he could not discuss the case in detail.
He said the civil forfeiture process recognizes that measures need to be taken to combat drug trafficking.
"If you look at it from the perspective of drug trafficking, I think this is what the courts are starting to realize, that it is important to remove as much as they can from [an offender's] hands, whether it's a house that you're growing drugs in, or a vehicle that you're transporting them in," Cpl. De Jong said.
In an unrelated ruling last February, a provincial court judge noted the Youth Criminal Justice Act "emphasizes rehabilitation of young offenders but, at the same time, endeavours to create a sense of accountability and responsibility in the young person. That sense of responsibility would be frustrated if the young person were to avoid the impact of civil forfeiture laws for criminal behaviour."
The ruling pertained to an application for further police records, after $6,500 was seized from a youth on Vancouver Island. The request for the records, brought forward by the Civil Forfeiture Office, was granted. The youth in that case had not been charged.
The Youth Criminal Justice Act applies to young persons who were at least 12 years old at the time of an alleged offence, but under the age of 18. The act was enacted in 2003 after concerns about its predecessor, the Young Offenders Act. Those concerns, according to the Department of Justice website, included the overuse of the courts in less serious cases, and unfairness in sentencing, among other things.
Ms. Anton has repeatedly said she supports the work the office is doing, noting the process is in place to ensure people don't keep ill-gotten gains.
In a letter to The Globe and Mail published Monday, Ms. Anton said the Supreme Court of Canada has reviewed civil forfeiture laws in Canada, and B.C. courts "have reviewed and upheld the validity of our own B.C. Civil Forfeiture Act."
"I can assure you that we will continue to be fair and thoughtful – yet tough – with how the Civil Forfeiture Office pursues proceeds of unlawful activity, wherever it happens in our province," Ms. Anton wrote.
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. In B.C., about 99 per cent of the people the office targets settle on terms favourable to the office; in Ontario, the settlement rate is 47 per cent.
The province's ombudsperson has asked those who believe they were unfairly treated through administrative forfeiture to contact her. The ombudsperson cannot investigate matters that have gone to court and can only examine cases that were handled administratively. She could not say whether any complaints have come in, since she's permitted to release information only at the end of an investigation.