Pubdate: Tue, 18 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

CHARTER RIGHTS KEY IN FORFEITURE

David Lloydsmith, Whose Home Was Searched by RCMP in 2007, Has Taken 
His Case to B.C.'S Highest Court

What is going to happen next, when agents of the state, in this case 
police officers ... do not have proper grounds for going into somebody's home?

The province of British Columbia should not be able to benefit from 
unlawful conduct, a lawyer said in the B.C. Court of Appeal, on the 
first day of a civil forfeiture hearing that could impact many more cases.

The two-day hearing in the province's highest court involves the case 
of David Lloydsmith, a resident of the Fraser Valley community of 
Mission whose home was searched by police in October, 2007.

Mr. Lloydsmith earlier told The Globe and Mail how an RCMP officer 
showed up on his doorstep and said he was investigating a dropped 911 
call. The officer asked to search Mr. Lloydsmith's residence, a 
request the homeowner declined.

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, ultimately finding marijuana plants in the basement.

Mr. Lloydsmith was arrested but never charged. The province's Civil 
Forfeiture Office is attempting to seize his home, despite the fact a B.C.

Supreme Court judge earlier called the police search "warrantless" 
and "unreasonable" and said it breached Mr. Lloydsmith's Charter rights.

The Supreme Court judge 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 has appealed that decision.

The 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. In a 
testament to the importance of the case, the B.C. Civil Liberties 
Association has decided to intervene.

Andrew Gay, the lawyer representing the office at the appeal court 
Monday, 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.

But Bibhas Vaze, Mr. Lloydsmith's lawyer, said the hearing hinges on 
police conduct and questioned what effects failing to respect the 
Charter would have.

"What is going to happen next, when agents of the state, in this case 
police officers ... do not have proper grounds for going into 
somebody's home? What is going to happen when they are wilfully 
neglecting the Charter en masse, as we submit happened in this 
particular case?" Mr. Vaze asked the threejudge appeal-court panel.

Mr. Vaze said the state should not be permitted to benefit from the 
unlawful conduct of police.

He described the police search as "egregious" and said his client's 
goal is for the case to ultimately be dismissed.

The appeal-court judges questioned Mr. Gay on whether the office 
should even have filed the appeal since Mr. Lloydsmith's actual trial 
has not been completed. Mr. Gay said the lowercourt judge's decision 
was incorrect, and that it would be inefficient to deal with the 
Charter issue before the full discovery process and trial.

B.C.'s Civil Forfeiture Office was created in 2006 to fight organized 
crime, but a months-long Globe 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. 
Alberta and Manitoba have since also introduced 
administrative-forfeiture programs.

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 legislation 
should be reviewed. Justice Minister Suzanne Anton, however, has said 
a review is unnecessary.
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MAP posted-by: Jay Bergstrom