(The Canadian Press)

B.C.’s plans to expand civil forfeiture program called unconstitutional

Under the changes, the onus would be shifted to a defendant to prove that an asset is not an instrument or proceed of unlawful activity

Eight years have passed since David Lloydsmith learned British Columbia’s Civil Forfeiture Office wanted to seize his modest two-bedroom bungalow, but he says the panic and anger that gripped him that day have not gone away.

Lloydsmith is still outraged that the office tried to seize his home based on a police search without a warrant that produced no criminal charges. B.C.’s Supreme Court and Court of Appeal eventually ruled his rights were violated, but he says the emotional scars remain.

“It cost me friends. It cost me a relationship. I still haven’t been able to have another relationship since,” he said, adding he still owes a friend money for helping cover tens of thousands of dollars in legal bills.

“I have serious trouble sleeping. It’s done damage to me that I don’t know if I can ever get over.”

Critics of civil forfeiture hailed the Lloydsmith decision as one that sent a message about the need to protect charter rights. Some were shocked on Tuesday when the B.C. government announced it intends to dramatically expand civil forfeiture.

Calling it the “most significant revision” of the Civil Forfeiture Act since its introduction in 2006, Public Safety Minister Mike Farnworth announced three proposed changes, which he said were aimed at organized crime and fentanyl trafficking.

Under the changes, the onus would be shifted to a defendant to prove that an asset is not an instrument or proceed of unlawful activity, in cases where the Civil Forfeiture Office provides the court with “sufficient evidence” clearly linking the asset to crime.

The office would also be able to ask a judge to order an accused person’s assets be held before it formally sues them, and finally, it would be able to compel banks to hand over information before customers transfer assets.

Shifting the burden of proof to a defendant is “obviously terrible,” said Micheal Vonn of the B.C. Civil Liberties Association.

The Civil Forfeiture Office files lawsuits to seize assets believed to be the proceeds or instruments of illegal activity, regardless of whether the asset owner has been charged or convicted, and even if they’ve been acquitted, of a crime.

Vonn noted the standard of proof is already lower in a civil trial than a criminal one. In civil proceedings, one party’s case must simply be more probable than the other’s, while in criminal trials, guilt must be proven beyond a reasonable doubt.

Civil forfeiture defendants are also ineligible for legal aid, unlike many people charged with crimes, she added.

“Now, they’re actually reversing the onus on certain portions of this,” Vonn said. “So you show up in court — very lucky if you’re able to defend yourself at all, vis-a-vis counsel or otherwise — to prove that you are not guilty.

“That’s a standard that almost never will you see justified constitutionally.”

As for the amendments aimed at stopping people from transferring assets before they can be seized, Vonn said she’s concerned about the forfeiture office accessing banking information using a lower legal standard than police.

“We have processes whereby police are entitled to investigate on a warrant standard of reasonable and probable grounds. We have a reason for that — so we protect against abuse,” she said.

There is already a criminal forfeiture process that seizes assets after conviction, she added.

She said the civil liberties association would consider challenging the amendments if passed, adding she’s baffled by Farnworth’s comments that the government consulted with experts and believes the amendments are constitutional.

Phil Tawtel, executive director of B.C.’s Civil Forfeiture Office, said the program focuses on “property, not people.”

“There is no case where someone is going to go to jail for this,” he said. “The question is: is there enough evidence to show that an asset, a property, is either the proceeds or an instrument of unlawful activity?”

The Supreme Court of Canada has upheld provincial civil forfeiture laws, he said, ruling unanimously in 2009 that they aim to deter crime and do not encroach federal jurisdiction over criminal offences.

“Certainly, it’s still incumbent on the director to bring evidence to satisfy the court that the forfeiture is in the interests of justice,” Tawtel said.

The office has brought in $87 million since 2006, spending $37.5 million on crime prevention initiatives and $1.63 million on victim compensation. The remainder has been spent on legal counsel and office operations, Tawtel said.

Bibhas Vaze, a lawyer who has represented many civil forfeiture defendants including Lloydsmith, said he’s worried that in the face of criticism about the office, the government wants to expand it further.

Police showed up at Lloydsmith’s home in Mission in 2007 and said they were investigating a 911 call. When he refused to let them in, they forced their way in and found, seized and destroyed a number of marijuana plants.

Lloydsmith said the plants were for his own medical use and he was not charged. Nevertheless, the forfeiture office sued to seize his home in 2011, and only abandoned the case after the courts ruled the “unreasonable” search violated his rights.

Vaze said civil forfeiture enables the government to use evidence found in illegal police searches that would not be admissible in criminal trials.

Tawtel responded that it’s up to the court to decide whether charter breaches have occurred and what the remedies are.

“I’m not out there saying that government should not be able to seize assets of people who are engaging in illegal activity,” said Vaze. “The problem is: at what cost?”

Laura Kane, The Canadian Press


Like us on Facebook and follow us on Twitter.

Just Posted

New Seven Sisters replacement confirmed

Mental health facility will have 25 beds, up from 20 in current facility

Terrace hospital’s business plan approved

Health Minister’s announcement opens door to construction phase

Convicted animal abuser to return to B.C. court May 21

Catherine Jessica Adams is facing a breach of probation charge

Concerns over democracy as Senate committee votes to nix oil tanker ban

Critics of the Senate’s recommendation to kill Bill C-48 say it goes against popular will

Northwest Fire Centre open burn ban lifted

Recent rain, cooler temperatures have lowered the region’s fire risk

Rescuers finally persuade Eiffel Tower climber to come down

The official said the man was ‘under control and out of danger’ on Monday night

Killer of Calgary mother, daughter gets no parole for 50 years

A jury found Edward Downey guilty last year in the deaths of Sara Baillie, 34, and five-year-old Taliyah Marsman

Federal government funds millions to help B.C. police spot drugged driving

Many police departments have expressed wariness about using the only government-approved roadside test

Judge: Mississippi 6-week abortion ban ‘smacks of defiance’

The new law would prohibit most abortions once a fetal heartbeat can be detected

Oil companies, 24-cent gap between B.C., Alberta to be focus of gas price probe

Premier John Horgan called the spike in gas prices ‘alarming’

Motorcycle deaths spike 50% since 2017

Riders were most likely fatally crash on the weekends compared with the rest of the week

Mother of accused charged in death of Surrey teen girl found in torched SUV

Manjit Kaur Deo charged with ‘accessory after the fact’ in 2017 death of Surrey teen

Family of B.C. pilot killed in Honduras trying to ‘piece together’ tragedy

Patrick Forseth has a number of friends in the area and was loved by everyone

Justin Trudeau credits immigration for Canada’s growing tech sector

Trudeau stressed that Canada has become a major source of talent for tech all over the world

Most Read