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56 N o v e m b e r / D e c e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m federal Crown laid some criminal charges, which were later stayed. e latest legal issue in the proceeding is whether the province has to turn over sworn affidavits by police to obtain wiretap authorizations during the criminal investigation. e B.C. appeal court ruled in August, it did not have juris- diction to hear an appeal of a decision by the judge presiding over the proceeding, order- ing the affidavits to be unsealed. e SCC has granted leave to appeal to the forfeiture office. e other Hells Angels proceeding also involves attempts to have clubhouses for- feited — this time the ones in Kelowna and Vancouver. e litigation is in its early stag- es, but one of the issues that will ultimately have to be decided is a counterclaim by the Hells Angels seeking to strike down a sec- tion of the Civil Forfeiture Act. In Chatter- jee, the SCC dealt only with the proceeds of crime provisions of the Ontario statute. e constitutional challenge filed by the Hells Angels involves the "instruments of unlaw- ful activity" section of the B.C. statute. e biker group has retained Joseph Arvay, who is arguing the provision is ultra vires the powers of the province. e counterclaim filed in B.C. Supreme Court argues the section violates the fun- damental justice and right against self-in- crimination sections of the Charter. "e provisions of the CFA are not immune from Charter scrutiny simply because they do not involve the formal laying of charges or the threat of imprisonment when they are in substance of a penal nature," says the counterclaim. e instrument of crime provisions would have to be justified by the province under its implied power to prevent crime, says Arvay. Ultimately the courts will have to look at the "pith and substance" of the statute. "With respect to instruments of crime, the CFA substitutes and circumvents criminal procedure. If this is so then the pith and substance of the law in this appli- cation is criminal procedure, not crime pre- vention," says Arvay, a partner at Farris LLP. e constitutional challenge is likely a long way from being adjudicated and in the meantime, there a number of recent exam- ples where courts have questioned the way provinces are using their forfeiture powers. In one widely reported case, the B.C. Court of Appeal dismissed an attempt to seize a pickup truck from a 51-year-old first offender convicted of trying to transport marijuana with a street value of less than $10,000. In British Columbia (Director of Civil Forfeiture) v. Wolff, the court found it was not in the interest of justice to order for- feiture, given the defendant had already lost his job and there was no evidence he had transported marijuana on other occasions. e civil forfeiture office was also unsuc- cessful in 2013's British Columbia (Director of Civil Forfeiture) v. Dery, where it argued a Ducati motorcycle owned by a 40-year-old mechanic with a very poor driving record was an instrument of unlawful activity. B.C. Supreme Court Justice Gregory Bowden said he did not condone the actions of Ja- son Dery in continuing to speed on his mo- torcycle, but the province did not present lEgal rEport/CRiMinAl lAw & FoRenSiCS Learn to "bulletproof" writing that could end up as potential evidence New Publication Introduction to Forensic Writing Dr. Michael Arntfield and Madam Justice Kelly A. Gorman The first and only book of its kind in Canada, Introduction to Forensic Writing is designed to help "bulletproof" your writing with careful word choice and grammatical simplicity that can withstand critical or hostile legal scrutiny. The expert author team – a former-police-officer-turned-professor and a judge – will have you drafting documents that reflect accountability and expertise if they end up in court. Ensure that your investigative documents lead to successful prosecution and conviction, or enforcement of regulatory compliance and penalties. Save time and work effort with writing samples, real-life case studies, and best practices. Start producing written reports, documentary evidence, correspondence, and crime scene notes that won't raise questions or cause problems down the road. Order # 986382-65203 $95 Softcover approx. 280 pages August 2014 978-0-7798-6382-2 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. 00223DT-A46182 Available risk-free for 30 days Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800

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