Pubdate: Mon, 17 Feb 2014
Source: Vancouver Sun (CN BC)
Copyright: 2014 The Vancouver Sun
Contact: http://www.canada.com/vancouversun/letters.html
Website: http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Denise Ryan

CIVIL FORFEITURE WRONG WHEN NO CRIMINAL CHARGES LAID: CRITICS

Challenge Heads to Court Today in Vancouver

The B. C. Civil Forfeiture Office is pursuing civil cases even when 
there is not enough evidence to uphold criminal charges, say critics 
who describe the recent development as ' consolation prize' prosecution.

The B. C. Civil Liberties Association has been granted intervener 
status in a case pitting the office against a man not convicted of 
any crime, which will be heard today before the B. C. Court of Appeal.

The case involves an attempt by the office to seize the home of 
disabled electrician, David Lloydsmith. Lloydsmith's fight dates back 
to 2007, when RCMP officers knocked on his door in Mission, asking to 
search the premises.

Lloydsmith refused. Officers entered without his permission, cuffed 
him and, with no warrant, searched the house. Marijuana plants were 
found in the basement, and Lloydsmith was arrested. Lloydsmith, who 
had broken his back, said the plants were for medicinal use.

Eventually the case was dropped and no criminal charges were filed.

That did not stop the authorities from referring the file to the 
Civil Forfeiture Office, which began procedures to seize the home, 
arguing it was purchased with the proceeds of crime.

Lloydsmith says he can show that the house was purchased and paid for 
through his work as an electrician.

Civil Liberties Association counsel Raji Mangat says such aggressive 
moves against citizens with no criminal convictions are, in effect, 
an "end run" by authorities.

"It can be a sort of consolation prize for police not in position to 
bring criminal charges, a back end run in a civil context without the 
same evidentiary burden," she said.

In Lloydsmith's case, evidence against him - marijuana plants - was 
obtained through illegal search, and would not have been allowed in a 
criminal proceeding under the Charter of Rights and Freedoms.

After the office began civil proceedings to seize Lloydm-sith's home, 
a judge ordered that Lloydsmith's Charter right be considered. The 
director of civil forfeiture is appealing that decision.

The BCCLA requested intervener status, saying it is just one example 
of a "very troubling" new way in which the controversial civil 
forfeiture law is being applied, Mangat says.

The B. C. civil forfeiture law, in force since 2006, was intended to 
capture the profits and proceeds of major criminals, organized crime 
and gangs and eliminate profits from unlawful activities.

However, critics say the law is being used more often to aggressively 
pursue ordinary citizens that don't have the means to defend 
themselves in court cases that can cost from $ 15,000 to $ 50,000. 
Legal aid is not available to defendants in civil forfeiture cases, 
and, says Mangat, many defendants will simply settle, losing all or 
part of their assets rather than risk a protracted court battle.

In a recent case, 72- year-old pensioner William Pundick had to 
defend himself in court after the office seized his currency 
collection. Pundick lived in a tiny rental cabin on a larger property 
where, in an outbuilding, a growop was found. His collection was 
pursued for seizure, although there was no evidence connecting him, 
or the money, to the grow-op. Pundick won, and the B. C. Supreme 
Court rebuked the office's director, Phil Tawtel.

"We are seeing that the director of the CFO is very aggressively 
going after people's property. At first, the rhetoric was that this 
would be a tool for dismantling criminal enterprise but we are seeing 
that a lot of the actions are not against people implicated in any 
kind of organized crimes, but simply people against whom the police 
would not have been able to bring charges," said Mangat.

Court documents show that in the seven years since its inception, the 
B. C. Civil Forfeiture office has started more than 300 actions and 
brought in over $ 32 million.

Proceeds go to the province's general revenues, with about a quarter 
of it allocated to crime prevention. "There are a lot of unanswered 
questions on how the relationship between the director of the CFO, 
the Crown and the RCMP works in terms of the distribution of the 
proceeds. It has been a lucrative resource," said Mangat.
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MAP posted-by: Jay Bergstrom