Pubdate: Fri, 30 Nov 2012
Source: Vancouver Sun (CN BC)
Copyright: 2012 The Vancouver Sun
Contact: http://www.canada.com/vancouversun/letters.html
Website: http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Ian Mulgrew
Page: A4

B.C.'S FLAWED CIVIL FORFEITURE LAW DEALS OUT HARSH PUNISHMENT

Seven years ago, Frank Albert Wolff was caught speeding with a stash 
of marijuana in his pickup truck. It cost him his job as a fire 
captain. He also was sentenced to 100 hours of community work for 
what the judge said was a minor first offence by an otherwise law- abiding man.

Imagine his surprise when, after his conviction, the government 
seized his $ 52,000 Dodge Ram under the civil forfeiture law, which 
came into effect after he was charged.

Although politicians boasted the legislation would be used against 
the masterminds of organized crime, many of the cases have involved 
grabbing homes from marijuana grow-operations or asset seizures such 
as this in which the forfeiture seems disproportionate to the offence.

Yet because of the glacial pace of justice in B. C., the province's 
highest court is having to deal with the fallout of these iron fisted 
measures only now, agreeing recently that Wolff should get his truck back.

In the first case to be heard by the B. C. Court of Appeal, three 
justices unanimously agreed the act aimed at taking the profit out of 
"unlawful activity" was "wide in scope and firm in its application."

Writing for the panel, Justice Mary Newbury said the law does not 
even require the province to persuade a judge that forfeiture will 
serve all or even some of its statutory objectives - only that the 
property is tainted by "unlawful activity."

The "unlawful activity" may be found to have occurred even if no one 
was charged with a crime, or even if a person was acquitted, and may 
have occurred before or after the act came into force.

"As already noted, the court must order forfeiture, regardless of the 
value, purpose, ownership or condition of the property, unless the 
offender shows that the order would clearly not be in the interests 
of justice," she wrote, "or would be manifestly harsh and inequitable."

Justices John Hall and Daphne Smith concurred.

Defining what is "not in the interests of justice" was the $ 64,000 
question. Unfortunately, the court provided little guidance other 
than a lengthy shopping list of principles, including "maintaining 
confidence in the civil justice process."

The civil forfeiture act is a bad law.

No B. C. court has ruled on the constitutionality of the legislation 
passed in 2005, and in force since April 26, 2006.

But the Supreme Court of Canada in 2009 considered a challenge to 
Ontario's counterpart and appeared to uphold its validity.

Regardless, Wolff's was a perfect case highlighting the inequities of 
the law and the caprice of its application.

On Nov. 23, 2005, Wolff was initially arrested for pot possession for 
smoking a joint while driving a leased pickup, but later he was 
charged with trafficking when the RCMP found four pounds worth about 
$ 9,600 in a duffel bag.

A fire captain on Vancouver Island with no criminal record who said 
he was transporting the bag for a friend, Wolff pleaded guilty rather 
than rat out his pal.

Just before his sentencing, Wolff bought out the lease on the truck 
and had the equivalent of $ 52,000 worth of equity in the vehicle.

The judge gave him a conditional discharge given the "enormous 
consequences, both financial, professional and otherwise for this 51- 
year-old man."

Now most would agree Wolff had paid for his mistake, but not the 
bureaucrats in the office of civil forfeiture.

In December 2007, the director of civil forfeiture applied to seize 
Wolff's truck on the grounds it was an "instrument of unlawful activity."

Wolff complained the act was being applied retroactively, that it 
constituted a double jeopardy and violated his constitutional rights.

In the end, B. C. Supreme Court Justice Robert Metzger didn't rule on 
the constitutional issues but agreed Wolff was being shafted.

On Jan. 24, 2012, after five days of court time, Justice Metzger said 
Wolff had no previous criminal record, was not shown to have acquired 
his truck with illegal profits or for unlawful purposes and said, "it 
would be ... punitive to require full forfeiture."

The director appealed and asked the high court to comment given the 
importance of Metzger's decision.

"There is no requirement that ( the truck's) primary use has been 
unlawful, or, is likely to be in future," Justice Newbury said.

"I disagree, then, with the trial judge's reasoning that Mr. Wolff's 
truck should not be forfeited because a valid compensatory purpose 
cannot extend to property that was or is used primarily for lawful purposes."

Nevertheless, she added, Wolff could recover his truck.

It would be unjust "to subject either party to the time and expense 
of another trial, seven years after the offence," Justice Newbury concluded.

"In all the circumstances, I cannot say the court below was wrong in 
concluding that it would be manifestly contrary to the interests of 
justice to order the forfeiture of all or part of the value of the 
truck." Really? I think Justice Metzger was absolutely right to 
conclude it was wrong to take this man's truck given his crime.

More than that, a law that allows the government to subject someone 
to five years of expensive legal wrangling on such flimsy grounds is 
disproportionate and seriously flawed.

That it took Wolff half a decade to have this decision corrected is appalling.
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MAP posted-by: Jay Bergstrom