Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m N o v e m b e r / D e c e m b e r 2 0 1 4 55 M ore than fi ve years a er the Supreme Court of Canada upheld the right of provinces to seek civ- il forfeiture without criminal convictions, the scope of these powers is again facing increased judicial scrutiny. At the centre of two high-profi le court challenges are long running attempts by the British Co- lumbia government to seize clubhouses belonging to the Hells Angels. In one of these cases, a noted civil rights law- yer is seeking to strike down part of the Civil Forfeiture Act in B.C., arguing these powers are not a Charter-free zone. At the same time, superior court judges in B.C., Ontario, and other provinces, have issued a number of rulings in the past two years that have been critical of the applications of these powers. So while the country's top court may have found in 2009 that civil forfeiture is constitutional and not part of the crimi- nal law in Chatterjee v. Ontario (Attorney General), the legal debate appears far from settled on the scope of these powers. Civil forfeiture "has turned out as we predicted," says James F. Diamond, a partner at Levine Sherkin Boussidan in Toronto, who was co-counsel for Robin Chatterjee at the SCC. " e net eff ect of this legislation is the provinces have creat- ed an artifi cial drug court." He argued un- successfully in Chatterjee that the statutes were a way to try to punish alleged drug dealers under the guise of the province's property and civil rights powers, with the lower standard of proof. When the Ontario Civil Remedies Act was introduced in 2001 by the government of Mike Harris, then-attorney general Da- vid Young explained its purpose in the leg- islature. "Let's be clear. e aim of this legis- lation is to take the profi t out of organized crime," said Young (the wording of civil forfeiture legislation in B.C. and other prov- inces is very similar to the Ontario statute). Since it was enacted and in the years a er the Chatterjee decision, the focus has been on street-level dealers, suggests Diamond — in part, because these are less likely to be challenged in court. "In order to retain a civil lawyer, it has to make economic sense," he says. ose views were echoed by Jay Solo- mon, a Vancouver lawyer who has acted for clients in a number of forfeiture proceed- ings. "Very little of it is organized crime. It is mostly individuals with one or two grow operations, without links to known crimi- nal organizations." e "signifi cant imbal- ance" in resources leads to a number of early settlements, he explains. Depending on the strength of the evidence, the province will off er between 10 to 30 per cent of the pro- ceeds of the sale of assets to the subject of a forfeiture application, he says. According to the executive director of the civil forfeiture offi ce in B.C., its main goals have not changed since it came into existence in 2006. "We have not taken our eyes off the organized crime ball," says Phil Tawtel, a former RCMP offi cer. " e pur- pose of civil forfeiture is to make com- munities safer and reduce crime." is goal is also achieved, he says, when for- feiture proceedings are brought against street-level dealers. " ey are part of an ecosystem of crime that is damaging a neighbourhood." e ongoing Hells An- gels proceedings though, are examples of where Tawtel says the offi ce is seeking the assets of alleged organized crime groups. One of the cases, launched in 2007, in- volves the clubhouse of the Nanaimo chap- ter of the Hells Angels. e forfeiture pro- ceeding is based on evidence gathered in a police operation dubbed Project Halo. e Off the mark e top court has ruled civil forfeiture is constitutional but the legal debate appears far from settled on the scope of these powers. by Shannon Kari mAtt dAley lEgal rEport/CRiMinAl lAw & FoRenSiCS

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