Pubdate: Sat, 22 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
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

COURT DISMISSES FORFEITURE APPEAL

British Columbia's highest court has dealt a blow to the province's 
Civil Forfeiture Office, dismissing its appeal in a case in which it 
is trying to seize the property of a man whose rights were violated 
in a police search, and saying an imbalance of power can put ordinary 
citizens at the mercy of the government agency.

Civil forfeiture critics say the ruling sets a precedent and hope it 
makes the office think twice about taking on cases in which evidence 
was unlawfully obtained.

The B.C. Court of Appeal ruling was delivered on Friday in the case 
of David Lloydsmith. RCMP searched the home of Mr. Lloydsmith, a 
resident of the Fraser Valley community of Mission, in October, 2007. 
An officer told Mr. Lloydsmith he was investigating a 911 call. The 
homeowner was arrested when he refused to let the Mountie in. Police 
searched the house and found marijuana plants.

Mr. Lloydsmith was not charged, but the forfeiture office is 
attempting to seize his home as proceeds of crime based on the 
evidence from the search.

A B.C. Supreme Court judge called the search "warrantless" and 
"unreasonable" and ruled it violated Mr. Lloydsmith's rights under 
the Charter of Rights and Freedoms. He said whatever actions are 
needed regarding the violations would have to be determined before 
the forfeiture case could begin. The agency appealed that decision.

In its unanimous ruling on Friday, the three-judge Court of Appeal 
panel said there is "no proper basis" for the court to intervene and 
the lower-court judge can determine how to proceed.

Justice Mary Saunders, who delivered the decision, said several civil 
forfeiture cases are going through B.C. Supreme Court in which the 
defendant was neither charged nor convicted. She said such cases have 
"an extra element. And that is the jeopardy faced by a civilian at 
risk of losing a great deal and at risk of being labelled a criminal."

Given the high stakes and power difference between the parties, she 
said, "it is not surprising that there has been an assortment of 
applications seeking to challenge the legitimacy of the evidence 
gathering actions of the police."

Justice Saunders said Mr. Lloydsmith's case could be dismissed or the 
police evidence could be ruled inadmissible. Mr. Lloydsmith's lawyers 
want the case dismissed.

In her decision, Justice Saunders criticized the Civil Forfeiture 
Office for referring to Mr. Lloydsmith by his surname in its court 
documents. She said that is "a rather old-style manner of referring 
to an offender that the courts have moved away from, and [is] 
inconsistent with the decorum generally demonstrated in court 
documents filed in civil proceedings."

She asked the office to show greater respect.

Bibhas Vaze, Mr. Lloydsmith's lawyer, said in an interview the appeal 
court's decision vindicates the arguments that his client's rights 
should be protected.

"Today is a good day for the maintenance of everybody's cherished 
rights and freedoms, and to be free from unlawful state intrusion," he said.

Andrew Gay, the office's lawyer, declined to comment.

Raji Mangat, a lawyer with the B.C. Civil Liberties Association, said 
anyone whose case involves a potential Charter breach could find it 
easier to deal with that issue before a full and expensive trial.

"There's now a precedent where that has been permitted to stand," she said.

Ms. Mangat expressed hope the office will now think long and hard 
about taking on such cases.

Jay Solomon, a Vancouver lawyer who has worked on civil forfeiture 
cases, said it was "gratifying" to hear the appeal court recognize 
the system's power imbalance.

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.
- ---
MAP posted-by: Jay Bergstrom