Pubdate: Wed, 13 Feb 2013 Source: Vancouver Sun (CN BC) Copyright: 2013 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 CIVIL FORFEITURE LAW HAS BECOME A GOVERNMENT CASH GRAB IN B.C. B.C.'s civil forfeiture law is being used in unexpected ways that raise serious questions about its fairness and legitimacy. Only a handful of cases have made it through the courts, but those underscore a capriciousness and lack of proportionality in the legislation's application that has been unchecked because it is so costly to litigate in this province. A B.C. Supreme Court decision a few weeks ago caused another person with a clean record to settle out of court rather than continue an expensive legal fight over $140,000 in equity in a Surrey house. She is said to be one of many willing to part with a smaller as-yet-undisclosed sum rather than risk losing it all - and more in court. "It was a business decision," Jay Solomon, lawyer for Trinh Tu Huynh, explained. "A settlement was reached (that) my client was willing to accept, but it hasn't been entered in the court yet." In Nov. 22, 2007, police found 920 marijuana plants in the house owned in part by the Alberta woman. She and two others were charged, but the Crown stayed the proceedings on Nov. 30, 2010, when it was learned the search warrant was improperly obtained. Under this law, however, even if the police obtain evidence illegally, it's still OK to pass that evidence along to the director of civil forfeiture. And in civil proceedings, unlike a criminal trial, there is no right to be protected from self-incrimination, or to remain silent. The forfeiture law was brought in to take the profit out of organized crime, and there is no question it is being used against such groups as the Hells Angels. But it is also being used in ways that weren't anticipated - to inappropriately and severely punish certain first time offenders or even those not criminally charged. "I know they are going after small time operators, which is what my client was alleged to be," Solomon said. But nobody can afford to fight the government, and there is no legal aid for such cases. The biggest problem is the imbalance between the resources of the director and the average defendant in a civil case. Most people cannot afford to properly retain counsel to dispute the allegations or to raise Charter issues. "To fight a case to trial, a defendant needs a minimum of $50,000 - a minimum of 50 grand to fight a civil forfeiture case to trial, with no guarantee of success," Solomon said. "And if you are unsuccessful, there will be a significant bill as the losing party has to pay costs. ... No one can afford to fight this. It's a cash grab, that's what it has essentially become." The forfeiture law turns out not to have emboldened the authorities to take on Mr. Big, but rather it has encouraged them to harvest the low hanging fruit. Such laws, which now exist in seven provinces, were imported to Canada from the U.S. They represent a blurring of federal and provincial jurisdiction that under the constitution should be separate - the criminal law is Ottawa's bailiwick, and although these are provincial civil laws, they speak to federal criminal concerns. Sooner or later, the courts will look more closely at this and hopefully tease this tangle apart. A few weeks ago, I wrote about Frank Albert Wolff, who was caught speeding with a stash of marijuana in his pickup truck. It cost him his job as a fire captain, and he was sentenced to 100 hours of community work for what the judge said was a minor first offence by an otherwise law-abiding 51-year-old man. The government seized his $52,000 Dodge Ram and it took him seven years to get it back. Wolff was only able to fight his case because his lawyer was a veritable saint. There aren't enough of those, which is why it was the first case to be heard by the B.C. Court of Appeal, and why so few of these injustices have made it onto the public radar. But they're out there. I talked to a 39-year-old man in Nelson who is facing the loss of his home because police found him growing fewer than 40 marijuana plants. He was never charged because of shoddy police work, but he lost his job, suffered community shame, and now the civil forfeiture office is after the roughly $160,000 equity in his property. He can't afford the cost and risk of going to court. But not to worry, the civil forfeiture people have told him they're willing to negotiate - they want $50,000; he's offering $30,000. The man has a clean record, was growing for personal use, and there was no evidence of organized crime in his small operation. This law has created a situation in which bad policing can be rewarded, and where ordinary people who make a minor mistake can be excessively punished. The cost of litigation has exacerbated that injustice by limiting broader judicial review - emboldening the government's cash grab. - --- MAP posted-by: Jo-D