Pubdate: Sat, 19 Apr 2014
Source: Vancouver Sun (CN BC)
Copyright: 2014 Postmedia Network Inc.
Contact:  http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Ian Mulgrew
Page: A14
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

SECOND FORFEITURE ATTEMPT 'PUNITIVE'

Out of the Blue: Elderly Couple Staggered by Renewed Attempt to Seize 
Their Home

The B. C. Director of Civil Forfeiture is being branded a "vexatious 
litigant" and accused of malicious abuse of process for trying to 
grab the home of a couple given minor sentences for growing marijuana 
for a compassion club.

Although a Provincial Court judge two years ago refused to order the 
pair to forfeit all or part of the Burnaby property as a consequence 
of the 2008 offence, the elderly couple say the director is wrongly 
taking another kick at the can.

They asked B. C. Supreme Court Justice Ronald to stop the latest 
forfeiture proceeding.

"I felt like I had beaten cancer - and it was back again," 66- year- 
old Terrence Roger Tetz said in an affidavit, adding that he was in 
poor health. His common-law wife Ellen Lee De Rosenroll said she was 
staggered at the renewed attempt to confiscate her home.

"It has been a nightmare," complained the 59- year-old, who had 
nothing to do with the grow operation.

The litigation has thrown the spotlight on the civil forfeiture 
office - run by former Mountie Phil Tawtel - and is one of a handful 
of cases moving through the province's senior trial court that raise 
serious constitutional and fundamental legal concerns about its 
governing legislation.

Tetz and De Rosenroll were charged after police searched 7092 
Patterson Ave. on March 27, 2008.

The RCMP found a small marijuana grow operation with 140 plants 
behind a false wall in the garage, 16 pounds of dried marijuana and $ 
5,400 in cash - $ 5,000 in a brown envelope in a backpack.

Police also raided a warehouse in Richmond where Tetz was cultivating 
hundreds of clones and some mature plants.

For at least the previous two years, Tetz apparently had received $ 
130,000- plus a year supplying medical marijuana - six pounds a month 
to the club at $ 2,200 a pound. There was no evidence he sold to the 
black market, though he had sold clones - fledgling plants - to fellow growers.

Tetz pleaded guilty to his first and only conviction and was given a 
conditional sentence of eight months on Sept. 29, 2011; De Rosenroll 
was handed a $ 1,000 fine.

The Crown sought to have the house, which is in De Rosenroll's name 
only, surrendered.

After a four-day hearing, Provincial Court Judge William Kitchen 
concluded forfeiture would be a disproportionate punishment.

He cited a lack of evidence the home was purchased in 2004 with the 
proceeds of crime or to support and facilitate the pot growing.

The couple were relieved, but they were forced to re-mortgage the 
home ( adding $ 100,000 to the original $ 299,000 debt) to pay $ 
23,000 in legal fees and other bills that had piled up during the 
three- and- a-half year ordeal.

Then, nearly two years later, out of the blue, the director of civil 
forfeiture turned up demanding they hand over the house and the $ 5,000.

The couple's lawyer, Tonia Grace, slammed the entire proceeding as an 
abuse of process, a collateral attack on Judge Kitchen's order, 
vexatious and barred by estoppel - the civil rule that says once an 
issue has been competently adjudicated it cannot be relitigated.

"There is no Lamborghini in the driveway," she fumed.

"They are further behind paying off this property than when this began."

The U. S.- inspired civil forfeiture law was proposed a decade ago to 
take the profit out of crime and go after drug lords, and the 
government promised this is precisely the kind of petty case that we 
wouldn't see.

"It's a punitive action ... ( evidence of the) director's bad faith," 
Grace maintained.

She said the director is motivated by profit, by the prospect of an 
easy catch - echoing charges from recent critics of the civil 
forfeiture program that it has become a "cash grab" for government.

The litigation brings the administration of justice into disrepute, Grace said.

Citizens have a right to expect a court ruling to entail some 
finality, not discover that the legal system is some Kafkaesque hall 
of mirrors, especially when subjected to the full gravity of a criminal charge.

If the Crown believed Judge Kitchen was misled, that there was a 
miscarriage of justice in his decision on forfeiture, its obligation 
was to appeal - not seek another forum to roll the dice again.

The director argues that he is a different embodiment of the state 
than the criminal prosecutor and the provincial civil forfeiture act 
is significantly different and aimed at different ends than the 
federal criminal law.

Perhaps if the Crown hadn't asked for forfeiture in the criminal 
trial those claims might carry some weight.

In the face of a judge having already scrutinized and ruled on the 
provenance of the house and squarely on the issues both laws address, 
this is about clear legislative overlap and looks like 
overzealousness and overkill.

This is a textbook example of the worry recently voiced by the B. C. 
Court of Appeal about this legislation - the disconcertingly 
disproportionate power imbalance inherent in a situation where 
ordinary citizens who can't afford expensive legal fees are subjected 
to complicated litigation by the state with its extensive resources.

The seeming capriciousness of this action and the apparent unfairness 
of these proceedings reinforces the appellate bench's prescient 
misgivings. They cry out for an explanation.

But as Grace pointed out, the director isn't in court, "He is aware 
the integrity of his office is in the spotlight," she said, casting a 
theatrical glance around the tiny Vancouver courtroom. "He is not 
here ... just a bevy of government lawyers."

The proceedings continue.
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MAP posted-by: Jay Bergstrom