Home / Civil forfeiture wrong when no criminal charges laid: critics

Civil forfeiture wrong when no criminal charges laid: critics

By Denise Ryan/  Vancouver Sun
Published on February 16, 2014

The B.C. Civil Forfeiture Office is pursuing civil cases even when there is not enough evidence to uphold criminal charges, say critics who describe the recent development as ‘consolation prize’ prosecution.

The B.C. Civil Liberties Association has been granted intervener status in a case pitting the office against a man not convicted of any crime, which will be heard Monday before the B.C. Court of Appeal.

The case involves an attempt by the office to seize the home of disabled electrician, David Lloydsmith. Lloydsmith’s fight dates back to 2007, when RCMP officers knocked on his door in Mission, asking to search the premises.

Lloydsmith refused. Officers entered without his permission, cuffed him and, with no warrant, searched the house. Marijuana plants were found in the basement, and Lloydsmith was arrested. Lloydsmith, who had broken his back, said the plants were for medicinal use.

Eventually the case was dropped and no criminal charges were filed.

That did not stop the authorities from referring the file to the Civil Forfeiture Office, which began procedures to seize the home, arguing it was purchased with the proceeds of crime.

Lloydsmith says he can show that the house was purchased and paid for through his work as an electrician.

Civil Liberties Association counsel Raji Mangat says such aggressive moves against citizens with no criminal convictions are, in effect, an “end run” by authorities.

“It can be a sort of consolation prize for police not in position to bring criminal charges, a back end run in a civil context without the same evidentiary burden,” she said.

In Lloydsmith’s case, evidence against him — marijuana plants — was obtained through illegal search, and would not have been allowed in a criminal proceeding under the Charter of Rights and Freedoms.

After the office began civil proceedings to seize Lloydmsith’s home, a judge ordered that Lloydsmith’s Charter right be considered.

The director of civil forfeiture is appealing that decision.

The BCCLA requested intervener status, saying it is just one example of a “very troubling” new way in which the controversial civil forfeiture law is being applied, Mangat says.

The B.C. civil forfeiture law, in force since 2006, was intended to capture the profits and proceeds of major criminals, organized crime and gangs and eliminate profits from unlawful activities.

However, critics say the law is being used more often to harass and aggressively pursue ordinary citizens that don’t have the means to defend themselves in court cases that can cost from $15,000 to $50,000. Legal aid is not available to defendants in civil forfeiture cases, and, says Mangat, many defendants will simply settle, losing all or part of their assets rather than risk a protracted court battle.

In a recent case, 72-year-old pensioner William Pundick had to defend himself in court after the office seized his currency collection. Pundick lived in a tiny rental cabin on a larger property where, in an outbuilding, a grow-op was found. His collection was pursued for seizure, although there was no evidence connecting him, or the money, to the grow-op. Pundick won, and the B.C. Supreme Court rebuked the agency’s director, Phil Tawtel.

“We are seeing that the director of the CFO is very aggressively going after people’s property. At first, the rhetoric was that this would be a tool for dismantling criminal enterprise but we are seeing that a lot of the actions are not against people implicated in any kind of organized crimes, but simply people against whom the police would not have been able to bring charges,” said Mangat.

Court documents show that in the seven years since its inception, the B.C. Civil Forfeiture office has started more than 300 actions and brought in over $32 million dollars.

In the U.S., where forfeiture laws have been in place for years, profits from forfeitures have soared to $4.2 billion annually.

The office does not investigate or seek out forfeitures, but relies on files recommended to the office by provincial authorities. Proceeds go to the province’s general revenues, with about a quarter of it allocated to crime prevention. “There are a lot of unanswered questions on how the relationship between the director of the CFO, the Crown and the RCMP works in terms of the distribution of the proceeds. It has been a lucrative resource,” said Mangat.

Mangat said the proceedings, such as the one against Lloydsmith, are not strictly civil and are a new grey area of the law. “It’s a hybrid between criminal and civil proceedings, and we need to proceed very cautiously so that rights aren’t being violated. The charter has to remain meaningful in civil forfeiture cases.”