Pubdate: Sat, 24 May 2014
Source: Vancouver Sun (CN BC)
Copyright: 2014 Postmedia Network Inc.
Contact:  http://www.canada.com/vancouversun/
Details: http://www.mapinc.org/media/477
Author: Ian Mulgrew
Page: A15
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

FORFEITURE OFFICE DEFENDS ITS RECORD

Exclusive interview: Following criticism, director Phil Tawtel says 
program 'very much doing what it was intended to do'

B.C.'s civil forfeiture office has settled a handful of controversial 
cases after recent judicial and public criticism.

Executive director Phil Tawtel, however, maintained in an exclusive 
interview that his office continued "very much doing what it was 
intended to do."

He cited $43 million in seizures since the program began in 2006, $16 
million of which was re-invested in crime prevention initiatives or 
victim compensation.

"Relative to other pieces of legislation, we could call this very 
fresh and very new," Tawtel said.

"As the court starts to express their understanding of what the law 
should be and how it should be applied, then we react to that. We 
move forward and adopt our policies and practices."

Over the last few weeks, Tawtel's office threw in the towel against 
David Lloydsmith, a disabled Mission electrician fighting the seizure 
of his house.

The B.C. Court of Appeal in February rejected the office's appeal of 
a lower court order that it defend a series of charter breaches that 
occurred in the 2007 RCMP investigation into allegations Lloydsmith 
was growing marijuana.

While recognizing the law's aim, the court worried about the 
imbalance between the province's immense resources and those of 
defendants who don't qualify for legal aid and may not even have been 
charged with a crime, but face complicated legal proceedings that 
could cost them dearly.

Since that decision, the director also settled two other cases in the 
media eye - one involving an older Burnaby couple whose property was 
in jeopardy despite a criminal court ruling that a forfeiture would 
be excessive, and the other against a Nelson-area acreage owner who 
had not been charged.

Tawtel defended his robust interpretation of the law.

"How does the director apply fairness and proportionality?" he asked, 
referring to the principles the court said should guide his 
discretion. "Certainly, from day one that is on our mind, from day 
one when we are looking at a file ... that's key to us."

The former Edmonton RCMP investigator said that some Charter breaches 
"on the surface are not egregious and it's worth ... seeing how it plays out."

Far from traumatizing defendants, as lawyers claim, litigation 
provides an opportunity through the discovery process for them to 
explain, as in, "I know what the police told you but here is my side 
of the story," Tawtel said.

Though, he added, "you often can't get there and get their 
information until well after litigation has started."

Lawyers say that entire process is extremely daunting and a very big 
stick for the government to wield.

"They are making people's lives a living hell for the period of the 
litigation and possibly forcing them into a settlement when they know 
it's so difficult to prove they haven't engaged in wrongdoing," fumed 
Lloydsmith's lawyer Bibhas Vaze. "(Defendants) simply throw up their 
hands and give up. It's really outrageous."

Tawtel responded that the vast majority of cases were settled without trial.

"We're not always being told the truth, Ian, as you can imagine," he 
added. "That's the purpose of going to the courts and evaluating the 
evidence ... part of the discovery process is to get to the truth. In 
some cases, it becomes clear to us that this isn't a file that we 
should be engaged in (and it is dropped)."

B.C. passed the civil forfeiture act in 2006, following in Ontario's 
footsteps with legislation modelled on U.S. laws targeting the assets 
of organized crime.

In the last year, though, it has become evident the forfeiture office 
was casting a much wider net and aggressively pursuing property of 
all kinds, from motorcycles and pickups to houses and numismatic collections.

Former solicitor general Kash Heed said the scheme had morphed into a 
cash grab, pointing out it had raked in millions more than Ontario, a 
far more populous province whose law had been in place three years longer.

Tawtel made no apologies for chasing lone fraudsters or single-person 
marijuana grow operators seemingly unconnected to organized crime.

"They are all part of the ecosystem of crime," he emphasized.

"They clearly are part of the problem, not part of the solution. The 
fact that sole proprietors of marijuana grow operations are not using 
violence themselves doesn't mean they are not creating problems for 
their communities and that they are not part of the supply network 
for groups that do use violence to control their environment.

"Some communities when the program first started were really 
suffering from marijuana grow operations," he continued.

"The neighbours were furious. (Grow operations) were causing problems 
in the neighbourhood. It was impacting their homes and the safety of 
their community. So ... we are very attuned to that as well."

Tawtel insisted there were sufficient checks and balances.

"When you are talking about innocent people, I want to be clear that 
when the director files a claim, it is based on the evidence we 
receive," he said.

"We look at that evidence with a very robust eye and we want to make 
sure we are getting it right from the outset, and that we are not, as 
you said, taking on someone or something that we have no business 
being there in the first place. ... But the only way to do that 
properly is through the civil process and it's a process that is done 
with the overview of the courts.

"There have been some cases where we thought the evidence was strong, 
the court disagreed and it was stopped. So in those cases, the system 
is working."

But Vaze wasn't impressed.

"As I've said, once you get sued, you are already getting potentially 
bullied," he said, because even if you "win" you are still out 
thousands in legal costs.

"A couple of hundred hours at a rate of between $250 to $350 (for a 
lawyer with 10 years experience)," he said. "You do the math. In this 
case, because of the complexity of things, we had two counsel on for 
much of it as well. That's a lot."
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MAP posted-by: Jay Bergstrom