Pubdate: Thu, 27 Dec 2007
Source: Georgia Straight, The (CN BC)
Copyright: 2007 The Georgia Straight
Author: Travis Lupick
Bookmark: (Asset Forfeiture)
Bookmark: (Cocaine)
Bookmark: (Outlaw Bikers)


Police raids have resulted in the forfeiture of an estimated seven to
nine homes since the Civil Forfeiture Act took effect in April 2006.
"Many more" properties are frozen pending litigation, according to the
civil forfeiture office, which is part of the Ministry of Public
Safety and Solicitor General.

But while officials-including members of a new regional antigang task
force-say the legislation is a valuable tool, some lawyers and
professors have their concerns.

Rob Kroeker, the civil forfeiture office's executive director, said
that his team recommends that the Crown pursue a forfeiture whenever
there is evidence that property has been obtained through criminal
activity or is being used to commit a crime.

"I think any time you take tens or hundreds of thousands of dollars
out of criminal organizations, it's got to have an impact," Kroeker
said in a telephone interview with the Georgia Straight.

According to Kroeker, as of December 19 the civil forfeiture office
has been involved in 102 cases with a value of "well over" $10 million
in assets.

The Civil Forfeiture Act states that property may be forfeited on the
basis of unlawful activity, "even if no person has been charged with
an offence that constitutes the unlawful activity". Forfeitures do not
go to a criminal trial, but are dealt with in civil courts.

David Butcher is a criminal lawyer who has gone up against the Civil
Forfeiture Act. In the case of British Columbia v. Tse, Butcher's
client was found in his home with one kilogram of cocaine, $17,000,
and "a number of illegal drugs, knives, a replica handgun, and other
items", according to court documents.

On July 6, Justice Paul Williamson ruled that "it is not 'an
unreasonable inference' that the illegal drug activities carried on in
the residence contributed to its purchase." He froze the property
until a trial for its forfeiture could be convened.

"The standard required at [a civil] trial is much lower than it would
be in a criminal case, because the standard is balanced probabilities,
rather than proof beyond a reasonable doubt," Butcher said.

Robert Gordon, director of SFU's school of criminology, told the
Straight that in criminal proceedings, the burden of proof is on the
Crown to prove its case. In civil cases, the burden is usually on the
plaintiff. "So the onus is shifted to the person who owns the property
to prove that they have it legitimately," he said.

Gordon argued that a potential outcome of reverse onus is innocent
people losing their property because they might not have the resources
to fight the forfeiture in court. However, Gordon said that while the
Civil Forfeiture Act may be open to misuse in theory, it works "quite
well" in practice.

Amid a spate of gangland-style killings in 2007, the Civil Forfeiture
Act made headlines when it was used to take control of a Hells Angels'
clubhouse in Nanaimo in November. In that case's interim ruling,
Justice Daphne Smith wrote: "The.clubhouse operates as a place where
criminal planning is conducted in secrecy during weekly 'church
meetings' that are attended by full patch members."

The Angels' clubhouse has been frozen and, pending a trial, could be
forfeited. But no arrests have been made in relation to the case.

Speaking generally, Kroeker claimed that with cases involving the
forfeiture of residences, "virtually every one" involved criminal
charges. In cases involving assets such as cash or a vehicle, "It's
more 50-50," he added.

The Supreme Court of Canada granted an appeal this month to an Ontario
man who is arguing that police had no right to seize grow-op
paraphernalia and money found in his car because he was never charged
with a criminal offence. Butcher predicted that it was only a matter
of time before a similar constitutional challenge was brought before
the B.C. Supreme Court.

He said that when the Civil Forfeiture Act is used properly, it is in
the public's interest. But Butcher questioned if the law is being
applied in such a way that someone can own a home for many years, and
then commit one crime in that home and have it taken away.

The civil forfeiture office maintains that checks and balances exist,
but Butcher argued that there is a problem with the burden of proof
being on the defendant. "That, to me, is a statute that is open to
abuse," he said.
- ---
MAP posted-by: Steve Heath