Canadian Lawyer

B.C. forfeiture cases raising ���cash grab��� concerns C ases regarding British Columbia���s forfeiture law are raising concerns it is being used as a ���cash grab,��� going beyond its original intent of curbing organized crime. The cost of taking cases to court also raises concerns about the rights of individuals where police have not been able to convict of a crime but homes and property are seized and whether forfeiture penalties go beyond what is proportionate to the alleged crime. Defence lawyers say it is tough to get cases to court as it is a costly route to gain precedents and after almost a decade there are only a few cases providing guidance. ���This is an absolutely urgent access-tojustice issue,��� says Micheal Vonn, policy director of the B.C. Civil Liberties Association. She says individuals ensnared by the law can be first-time offenders and not connected to organized crime. They do not have the resources to fight legal battles against the province and do not qualify for legal aid. Even if the RCMP or police fail in an investigation, they can turn over information to the provincial forfeiture office, which can confiscate proceeds or instruments of crime based on any unlawful act. Vonn says there are few B.C. lawyers who know the forfeiture laws and can defend clients. This unfair advantage has turned the law into a ���tremendous cash cow��� for the province. However, those pulled in are settling out of court to avoid long, drawn-out court battles that can exhaust them financially. ���Civil forfeiture is really outrageous plea bargaining for those who can���t afford to hire a defence council,��� she says, adding this ���shadow criminal��� process realized in contested civil forfeiture relies upon a lower standard of guilt. As well, the individual does not have the same rights as a person who stands accused of a criminal offence and can be forced to testify in court. Several recent cases highlighted the issue. In November, British Columbia (Director of Civil Forfeiture) v. Wolff was the first higher court decision about confiscation not being in the interest of justice. The case revolved around Frank Albert Wolff, who agreed to deliver a bag to a friend only to discover it contained $9,600 of marijuana. He smoked some and was stopped in his vehicle by police, who noted the smell and found the dope. He was charged with possession for trafficking, lost his job (and pension) as a fire department captain, and suffered public embarrassment. B.C.���s act came into effect in 2006 and in June 2007, several weeks after Wolff leased a new truck, he pleaded guilty in court. The judge, who rendered a conditional discharge, noted it was a first offence, the trafficking charge was more technical in nature, and Wolff had sustained hardship through the event. B.C.���s director of forfeiture then went after the new truck, confiscating it as an instrument of crime. Victoria lawyer Doug Christie, who passed away in mid-March, brought the issue to the B.C. Supreme Court, which ruled it was not in the interest of justice to confiscate the truck. On appeal, the B.C. Court of Appeal made a decisive decision over the truck���s ownership ��� taking five years for a final decision and the case dragging on for seven years. ���I take cases on principle, I don���t care how long they take or if it costs me,��� Christie told Canadian Lawyer in one of his last interviews. Wolff was not only the first to define the director���s powers but also the first relating to the new Civil Forfeiture Act. Justice Mary Newbury���s reasons noted: ���The trial judge was not persuaded the Director had demonstrated that Mr. Wolff���s truck would have been used to engage in future criminal activity, nor that it had been purchased with the proceeds of unlawful activity. He declined to make a finding that Mr. Wolff had been involved in trafficking prior to the predicate offence or that he otherwise used or intended to use the truck to commit similar offences.��� The director argued the confiscation was compensatory rather than punitive. ���It does not depend, nor could it, on drawing a direct connection between the property sought to be forfeited, and the ���diffuse harms��� of criminal offences such as illegal drug trafficking.��� Newbury reasoned. The appeal court found errors in reasoning from the director and the lower court but was reluctant to refer it back to the lower court stating it had gone on for seven years. ���The fact the truck had not been purchased with illegal funds or used in the past for unlawful activity did not disqualify it from forfeiture. However, the respondent���s lack of criminal record, the consequences he had already suffered due to his conviction, and the value of the marijuana he was carrying in comparison to the value of the truck, all militated against forfeiture in this case.��� More recent cases where police have botched investigations but given information to the director���s office for civil prosecution have also arisen. ���These are cases where the individual has no rights,��� said Christie, and the crime is alleged and not proven. That aspect is pivotal in B.C. Supreme Court���s Director of Civil Forfeiture v. Huynh. Another case is the 2011 BCSC���s Director of Civil Forfeiture v. Shoquist, in which Justice R. D. Wilson concluded there was nothing abusive about proceeding with a forfeiture application based on the results of an invalid RCMP search warrant since the abuse of process was not so egregious as to disentitle the procedure. ���I note however that this decision was a ruling on the defendant���s application to strike the notice of civil claim as being an abuse in itself. It did not purport to rule on the admissibility of the evidence obtained by the invalid search in a civil proceeding,��� the ruling said. The cases being pursued in court are few compared to those that settle. It is the same in other provinces that are also dealing with provincial forfeiture laws, says Vonn. ���But, in B.C., we seem to have more eyebrow raising cases.��� ��� JeAN soreNseN jean_sorensen@telus.net www.CANADIAN L a w ye r m a g . c o m April 2013 11

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