Pubdate: Sat, 25 Jan 2014
Source: Globe and Mail (Canada)
Copyright: 2014 The Globe and Mail Company
Contact:  http://www.theglobeandmail.com/
Details: http://www.mapinc.org/media/168
Author: Sunny Dhillon

AN INVESTIGATION INTO B.C.'S CONTROVERSIAL CIVIL FORFEITURE
OFFICE

The office has increased the number of files it accepts and amount of
money it makes, but there are growing concerns about its fairness and
transparency

It was Oct. 15, 2007, when the RCMP officer knocked on David
Lloydsmith's door.

Mr. Lloydsmith, a former electrician on partial disability living in
the Fraser Valley community of Mission, was told the officer was
investigating a dropped 911 call. Mr. Lloydsmith lived alone and said
he hadn't touched the phone.

The officer asked to come in and search the residence, according to
court documents. Mr. Lloydsmith declined several times and finally
moved to close the door. The officer then forced his way in and put
Mr. Lloydsmith in handcuffs. A second officer arrived within minutes
and the Mounties began their search.

They eventually found marijuana plants in the basement. Mr. Lloydsmith
was arrested, but released without charges. The initial officer wrote
in a report that the offence was "minor" and, with the plants removed
from the home, public interest had been met.

Mr. Lloydsmith thought the ordeal was over. But three years later, the
province's Civil Forfeiture Office moved to seize the residence. The
legal battle continues, despite an earlier ruling that the evidence
collected against him was in breach of the Charter. A judge described
the search as "warrantless" and "unreasonable."

Mr. Lloydsmith is one of the hundreds of British Columbians who have
become caught in the relatively new spectre of civil forfeiture - a
process originally intended to fight organized crime that has come to
have a much wider reach.

A Globe and Mail investigation spanning several months and more than
two dozen interviews has found the Civil Forfeiture Office has rapidly
increased the number of files it accepts and the amount of money it
brings in, while remaining largely out of the public eye. But as the
scale of the forfeitures has grown, so too have concerns about
fairness, public interest, and transparency.

Documents obtained through freedom of information show how the
office's policy works when it comes to accepting files. The office
does not investigate cases itself and instead relies on referrals from
law-enforcement agencies.

The documents say the director must assess a file on four grounds
before accepting: public interest, strength and adequacy of evidence,
fiscal considerations, and interests of justice.

The office does not need criminal charges, or convictions, to move on
a property and the penalty - losing one's home, for instance - can
seem disproportional to the alleged offence. The burden of proof is
lower in civil court than criminal, on a balance of probabilities
instead of beyond a reasonable doubt. Evidence that could be seen as
unfit for criminal court can be seen as fit for civil court.

Ontario was the first jurisdiction in Canada to introduce civil
forfeiture, and eight of 10 provinces have such programs today. B.C.,
despite opening three years after Ontario, has taken in more money
than Ontario and critics have contended it's operating as an end-run
on the justice system.

The office's executive director said 99 per cent of the people the
office targets settle on terms favourable to the office. Unlike
Ontario, B.C. has a budget target it must meet. And cases that in the
past have been conducted as offences under the Motor Vehicle Act,
Wildlife Act or Employment Standards Act, for example, are being
pursued under the Civil Forfeiture Act.

B.C. Justice Minister Suzanne Anton expressed her support for the
system and said the program meets the public interest. The minister
also noted many millions of dollars have been handed out to community
associations and police as a result of the office's work.

"The public has a very strong interest in seeing that people do not
keep ill-gotten gains," she said. "And that's why generally there's
public support for this Civil Forfeiture Act." Civil forfeiture itself
is not a new concept. Its roots date back about a millennium, to
Europe. Modern civil forfeiture, however, evolved in the United
States, where it was brought in to target drug lords but has grown
controversial in recent years. Controls have appeared lax and the
programs have developed into cash cows.

Ontario was the first Canadian province to introduce civil forfeiture
legislation. The Civil Remedies for Illicit Activities Office opened
in 2003. In 2009, Ontario's legislation withstood a challenge in the
Supreme Court of Canada in a case commonly known as Chatterjee. The
court ruled the Ontario legislation did not conflict with the Criminal
Code.

Yukon considered such legislation but decided against it in 2010,
following a public outcry from people who said it would infringe on
their rights. A Yukon government spokeswoman said the territory has no
plans to revisit the issue.

B.C.'s Civil Forfeiture Office opened in 2006 under the Liberal
government. It was heralded as another tool in the fight against gangs
involved in the billion-dollar drug trade. The "bling-bling," as
former solicitor general John Les put it after a 2007 bust, was about
to disappear and the province has described itself as a modern-day
Robin Hood.

In 2011, B.C. became the first province to introduce a process known
as "administrative forfeiture," which makes it easier and quicker to
seize property worth less than $75,000. Robert Holmes, then the B.C.
Civil Liberties Association's president, decried the move as another
attempt to avoid proving cases in court. Mr. Lloydsmith is sitting at
his kitchen table, near a window that overlooks the front steps the
RCMP officer once climbed. He has lived in the home for more than two
decades. It's assessed at about $250,000.

He knows some people won't sympathize with his plight - he's heard
from them. They say he should never have grown marijuana in the first
place.

He stresses he is not a bad man, nor a rich one, and indicates he
started growing after he had trouble getting prescriptions. Mr.
Lloydsmith went on partial disability after breaking his back on the
job. The exact number of plants discovered in his basement is under
dispute. A police report said it was a few hundred, a fact his lawyer
denies.

Mr. Lloydsmith says he will have nowhere to go if he loses his home.
"My world is right here," he said.

He said the stress from the case has taken its toll. He's fought
depression and lost 35 pounds. It shows - he's wearing an old sweater
that's become far too large.

"I don't sleep now. I can't get it out of my mind. It's torture, it's
like a nightmare," he said.

In court documents, the office argued Mr. Lloydsmith's property
amounts to "proceeds and instrument of unlawful activity" and can be
seized.

Bibhas Vaze, Mr. Lloydsmith's lawyer, said it's an affront to
democratic rights to suggest the Charter shouldn't apply in this case.
He said the house can be accounted for as purchased through legitimate
income and Mr. Lloydsmith does not have a criminal record.

He worries about the legal ramifications if Mr. Lloydsmith is to
lose.

"Because then, as far as I'm concerned, it will be carte blanche for
cops to go into people's homes in violation of the Charter, based on
what they could find, whether they have any good information," Mr.
Vaze said. "Why even get a warrant then?"

In a sign of the importance of Mr. Lloydsmith's case, the B.C. Civil
Liberties Association has decided to intervene. It's back in court in
mid-February. Gian Hong Jang and Yue Wang Jang own a Vancouver
janitorial company. In April, 2008, the husband and wife purchased a
second property so Ms. Jang's parents would have a place to reside.
The Kerr Street home was bought for $720,000 after the couple secured
a bank loan, according to court documents.

In September of that year, Ms. Jang's parents moved out of the home.
The Jangs decided to rent out the downstairs portion of the property
and found tenants online, according to court documents.

The couple said they had no reason to believe anything was amiss,
until Vancouver police raided the home in December and found a
marijuana grow-op. The Jangs were not charged but, in August, 2009,
the Civil Forfeiture Office attempted to seize the property.

The office alleged that it would present evidence that the Jangs'
primary property, their own home, was also purchased with marijuana
proceeds and it attempted to seize that residence as well.

The Jangs obtained a lawyer but, on the eve of a court date, decided
to settle to minimize their losses.

They were allowed to keep their home, but had to give up 50 per cent
of the equity in the property they'd been renting out.

David Karp, the Jangs' lawyer, said the case still irks him. He said
the janitorial company was legitimate and Mr. Jang "worked his ass off
six days a week."

However, he said his clients were wary of further court costs and the
uncertainty of trial.

"They essentially flip it on its head," Mr. Karp said of the Civil
Forfeiture Office. "You're guilty until you prove you're innocent."
Robert Milligan is a second generation guide outfitter. He owns and
operates Coast Mountain Outfitters, a company based in the northern
community of Terrace that specializes in mountain goat hunting, but
also offers bear hunting and fishing expeditions. To run his business,
Mr. Milligan requires a guide outfitter's certificate.

The Civil Forfeiture Office, however, is attempting to seize that
certificate. Mr. Milligan is accused of several offences - from using
a snowmobile for the purpose of hunting in a closed area, to using a
helicopter to transport hunters who were not physically fit, to using
bait to lure a bear more than a decade ago.

The office is also seeking an order that would force Mr. Milligan to
turn over his profits.

The case, and the fact that it's being handled through the Civil
Forfeiture Act instead of the Wildlife Act, has drawn the ire of the
Guide Outfitters Association of B.C. Scott Ellis, the association's
executive director, said it plans to intervene in the
proceedings.

"I was going to say the punishment doesn't fit the crime, but I'm not
even going to say there was a crime committed," Mr. Ellis said.

"It's taking a sledge hammer - which is a quote you can use from me,
if you like - to kill a mosquito." Mr. Milligan, in a statement
released through his lawyer, said losing the certificate would be
"utterly devastating."

Nicholas Weigelt, the lawyer, said the plan had been for Mr.
Milligan's children to take over the business. He said losing the
certificate would be akin to losing the family farm.

Although he could not say exactly how much the certificate is worth,
Mr. Weigelt said those in large and remote territories can sell for
millions. Mr. Milligan's certificate offers exclusive access to a
large space.

Mr. Weigelt said only one of the office's claims has merit - one of
Mr. Milligan's guides did ride his snowmobile into a closed area. But
it was unintentional, he said, and the snowmobile only ventured 400
metres into the closed space.

Mr. Weigelt said some of the complaints appear to have been made by
competing land users.

"I, like most members of the public, thought the government through
the Civil Forfeiture Office went after criminals," Mr. Weigelt said.
"Regulatory offences are offences, they're not crimes."

This is not the only time the office has taken an offence that falls
under another act and tried to pursue it under the Civil Forfeiture
Act.

The office was unsuccessful last year when it attempted to seize a
motorcycle owned by Jason Dery, after he was caught speeding on a
quiet Vancouver Island road. The office argued the Motor Vehicle Act
offence made the Ducati - valued at anywhere between $7,400 and
$14,000 - an instrument of unlawful activity. A B.C. Supreme Court
judge disagreed and ruled in Mr. Dery's favour. (The judge added that
the decision should not be seen as acceptance of Mr. Dery's driving.
He had been cited for more than three dozen motor vehicle offences
over the previous two decades.)

The office had until recently been pursuing a case against Mumtaz
Ladha for an alleged violation of the Employment Standards Act. Ms.
Ladha had been charged with human trafficking, though she was
ultimately acquitted.

The office would not immediately agree to drop the case after Ms.
Ladha was exonerated, but relented about a week later. Casey Leggett,
Ms. Ladha's lawyer, said media attention around the potential
forfeiture likely didn't hurt her cause. The different cases highlight
the different concerns that have been raised with respect to the office.

Mr. Lloydsmith's case speaks to admissibility of evidence, among other
things.

The Jangs are among the many landlords who said they had no idea what
their tenant was up to, raising questions about severity of punishment
and public interest.

Mr. Milligan's case demonstrates how an offence under a different act
can be pursued through the Civil Forfeiture Act.

In 2007, the Civil Forfeiture Office moved on the Hells Angels
clubhouse in the Vancouver Island city of Nanaimo. It later went after
clubhouses in Vancouver and Kelowna.

However, even these instances, in which the office did what it was
essentially created to do, have not been without controversy. Joe
Arvay, one of the country's most influential lawyers and a
constitutional law expert, announced in October that he would
represent the Hells Angels in a constitutional challenge of the Civil
Forfeiture Act.

"If it takes the Hells Angels to demonstrate that the government has
acted unconstitutionally, well then good for the Hells Angels," he
said. "There have been a number of cases ... where you look at what the
director has done and you say, 'Really?'"

The constitutional challenge could put those who feel they have been
unfairly targeted, or that the process is flawed, in the delicate
position of rooting for the Hells Angels to succeed.

Rick Ciarniello, president of the Vancouver chapter of the Hells
Angels, said the legislation should trouble everyone, not just the
group's members.

"Governments everywhere are now routinely using these 'civil
forfeiture' laws as a substitute for the criminal process. Most people
seem to just cave when faced with these forfeiture lawsuits. It is
just too expensive and stressful to fight back when faced with the
resources of the state," he wrote in a statement. "We aren't going to
do that and our fight will be for all British Columbians." The office
itself is a black box. Its location is not made public and, unlike
Ontario, B.C. does not disclose who works there. The province's
information and privacy commissioner is expected to rule in a matter
of months on whether the staff list should be made public.

Rob Kroeker, who was the office's first executive director, left the
post in October, 2012, for a position with a gaming corporation,
according to documents released through freedom of information. He was
replaced by Phil Tawtel. Both men had previously worked for the RCMP.

In an August briefing note to Minister Anton, obtained through freedom
of information, Mr. Tawtel said revenue derived from forfeiture is
used to operate the program (legal and administrative costs) and
provide crime-prevention grants to community associations and police.
Litigation is the single biggest expense.

Mr. Tawtel said the grants are critical because they generate positive
feedback and provide government with a way to identify emerging issues
and priority commitments.

The office has issued about $11-million in grants since it opened, and
paid about $1.3-million to victims of crime. Grant applications can be
found on the Ministry of Justice's website.

Those numbers have been helped by a sharp increase in seizures in
recent years. In its first year, the office brought in about $600,000.
In 2010-11, it seized approximately $4.8-million in property. That
figure more than doubled the following year, to about $10.8 million.

By the end of fiscal year 201213, the office had seized more than
$31-million in property since it opened. That total has since reached
$41-million, more than Ontario which is at $39 million.

Unlike Ontario, B.C. has an annual budget target it must reach. In the
briefing note, Mr. Tawtel wrote the office must "meet an assigned
budget target to the government which has increased over the past two
years by $1M to its current $3M."

The office has made more than three times that target in fiscal year
2013-14, seizing about $9.5-million in property.

The number of files the office has accepted has also grown, from 69 in
2008, to 240 in 2011, to 418 in 2012. In 2013, the office accepted 467
files.

The complaint most often cited by defendants in civil forfeiture
proceedings is that of cost. Legal aid is not available and defendants
are put in the position of assessing whether it's better to fight
their case in court or to settle to try to minimize the damage.

Blair Suffredine, a lawyer and former Liberal politician who served in
the legislature from 2001 to 2005, last year went up against the
office in a case involving the seizure of $9,251. The money was found
on a property in which marijuana plants had also been discovered.

Mr. Suffredine's client, Bill Pundick, was living on part of the
property but was not its owner and maintained the money had been
obtained lawfully as part of his decades-old currency collection. The
judge ruled in the pensioner's favour and said it was "not a case
where wads of tens or twenties or fifties are rolled up and bound by
elastic bands."

Mr. Suffredine, who did not play a role in establishing the Civil
Forfeiture Office during his time in government, said its conduct in
the few cases he's handled amounts to bullying. He said the office
tries to stretch out a case and make it so expensive that the
defendant has to settle. Going after pensioners was not the plan, he
said. "What was intended was to get the guys who are making big
money," he said. In a joint telephone interview with Minister Anton
and Mr. Tawtel, the minister portrayed Mr. Tawtel as a gatekeeper who
ensures it does not go after cases that are outside the public
interest or the interests of justice.

Ms. Anton said the office's target remains organized crime, but any
unlawful activity is fair game. When asked if she's worried people who
did not receive ill-gotten gains are being swept up in the process,
she said no.

Mr. Tawtel said the Civil Forfeiture Act has a number of safeguards,
including court oversight. But very few cases make it to trial - the
first wasn't completed until 2011. As Mr. Tawtel himself noted, 99 per
cent of people settle on terms favourable to his office.

Ms. Anton said she does not believe a settlement rate that high
suggests the process is flawed. She said she's very confident in the
system.

"Sometimes the cases, often they do settle. And that's because
generally the director brings them forward in proper circumstances. In
fact, I would argue the director brings them forward always in proper
circumstances because that's his job," she said. "The point is not to
make money. The point is to deprive people of ill-gotten gains."

She declined to comment on whether the office should take cases in
which evidence was collected in breach of the Charter, since such a
matter is before the courts.

She declined to comment on whether the Civil Forfeiture Act is being
used too broadly for similar reasons.

When asked whether she sees any problem with giving the office a
budget target, whether she's worried the quota leads to the pursuit of
cases that don't meet high standards, her answer was simple:
"Absolutely not." Although it has had some defeats, the Civil
Forfeiture Office has also had some wins, both inside the courtroom
and the community.

Sergeant Lindsey Houghton, spokesperson for the Combined Forces
Special Enforcement Unit of B.C., the province's anti-gang unit, said
his agency will only refer files to the Civil Forfeiture Office if
they involve people with direct relationships to guns, gangs, and violence.

He said the office does serve as a deterrent. The unit this week
received a vehicle from the office that's been draped in antigang
messaging. The seized sport utility vehicle will be taken to school to
warn young people about the dangers of gang life.

Abbotsford police received a vehicle in a similar manner for a similar
purpose in 2011. The department had the Hummer covered with messages
that included "Gang life is a dead end" and "Easy money can get you
hard time."

The rolling billboards have also grown popular among police
departments in the U.S.

The grants the province has handed out as a result of the office's
work have helped a wide variety of groups.

In February, 2012, the province announced $5.5-million in crime
prevention grants for programs that included violence-prevention
projects at half a dozen Lower Mainland schools and an anti-gang
campaign in Kelowna.

About $1-million in grants was announced in March, 2013, with funds
earmarked for women and family violence programs and a workshop on
sexual exploitation awareness, among other things.

MOSAIC, a non-profit organization that assists immigrants and
refugees, last year released a pamphlet to help foreign workers who
may be victims of trafficking.

The pamphlets were made possible due to a $42,500 civil forfeiture
grant.  
- ---
MAP posted-by: Jo-D