Pubdate: Wed, 19 Feb 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
Page: A10

FORFEITURE OFFICE'S TARGETING PRACTICES UNDER SCRUTINY

British Columbia's civil forfeiture program could follow the American
lead by deliberately targeting property owners with less-valuable
assets because they're less likely to have the means to fight their
case, a lawyer has warned the province's highest court.

Sean Hern, a lawyer representing the B.C. Civil Liberties Association,
made the comment on the second day of a civil forfeiture hearing at
the B.C. Court of Appeal. The hearing involved the case of David
Lloydsmith, a Mission resident whose home was subjected to a
warrantless search by the RCMP in October, 2007. The Mounties
discovered marijuana plants in Mr. Lloydsmith's basement. B.C.'s Civil
Forfeiture Office is attempting to seize his home, despite the fact a
B.C. Supreme Court judge earlier ruled the police search violated Mr.
Lloydsmith's Charter rights.

The Supreme Court judge also said a hearing on what to do about the
Charter issues should be held first, before a full discovery process
and trial. The Civil Forfeiture Office appealed that decision.

The B.C. Civil Liberties Association is intervening in the case. Mr.
Hern noted the vast majority of B.C. civil forfeiture cases settle,
and where the asset in question is of lesser value - such as Mr.
Lloydsmith's modest home - there is less incentive to fight back.

"If the Canadian experience follows the American, it may be that
proceeding against marginal assets will prove more lucrative for the
director than proceeding against significant assets because the owners
of the marginal assets are litigants with less ability to fight these
proceedings," Mr. Hern told the three-judge panel.

Mr. Hern said the appeal court's ruling could effect other civil
forfeiture cases. He said, "knowing that an early consideration of the
police conduct may be made within these cases will no doubt cause the
director to consider whether to bring such cases forward at all."

B.C.'s Civil Forfeiture Office was created in 2006 to fight organized
crime, but a months-long Globe and Mail investigation has found it now
has a wider reach and questions have been raised about fairness,
public interest and transparency. Eight of 10 provinces have
civil-forfeiture programs, but B.C. has been among the most aggressive
in pursuing property and cash. Although it was launched three years
after Ontario, the B.C. office has collected $2-million more:
$41-million to Ontario's $39-million.

Unlike Ontario, B.C. issues its office budget targets, which have gone
up over the past two years. And B.C. was the first province to
introduce a process known as administrative forfeiture, which makes it
quicker and easier to seize property worth less than $75,000. In B.C.,
about 99 per cent of the people the office targets settle on terms
favourable to the office; in Ontario, the equivalent proportion is 47
per cent.

Three B.C. Liberal caucus members, the province's Official Opposition
and a former Liberal attorney-general have suggested the Civil
Forfeiture Act should be reviewed. Justice Minister Suzanne Anton,
however, has said a review is unnecessary.

The Civil Forfeiture Office does not need charges or a conviction to
take on a file, and Mr. Lloydsmith's case could determine whether it
can proceed when evidence has been obtained in violation of the Charter.

Andrew Gay, the lawyer representing the office, has described Mr.
Lloydsmith's home as a proceed of unlawful activity and said the
lower-court ruling forces the office to proceed with one hand tied
behind its back. He said Charter issues should be dealt with at trial,
not before a case gets off the ground.

Bibhas Vaze, Mr. Lloydsmith's lawyer, has said the Civil Forfeiture
Office and the province should not be permitted to benefit from the
RCMP's unlawful conduct.

Michael Fox, Mr. Vaze's cocounsel, said Tuesday that if Mr. Lloydsmith
is compelled to take part in a full discovery process he will
essentially be building the Civil Forfeiture Office's case for it.

Mr. Gay, in his closing remarks, questioned why the discovery process
shouldn't unfold as it typically would.

The appeal court panel reserved its decision. It could give oral
reasons as early as Friday.
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MAP posted-by: Matt