Pubdate: Mon, 12 Feb 2018
Source: Globe and Mail (Canada)
Copyright: 2018 The Globe and Mail Company
Author: Sunny Dhillon
Page: A8


British Columbia's civil forfeiture regime violates the Canadian
Charter of Rights and Freedoms by forcing individuals to produce
evidence against themselves and by resulting in penalties that are
grossly disproportionate, says a new constitutional challenge.

The case, which will proceed to trial in B.C. Supreme Court in
November, stems from a 2015 police search of a multi-million-dollar
home on Vancouver's west side that turned up hundreds of marijuana
plants. It is expected to be the second constitutional case involving
B.C.'s Civil Forfeiture Office heard this year; a case involving the
Hells Angels is scheduled for April.

The Globe and Mail has reported extensively on the Civil Forfeiture
Office, which was established as a way to fight organized crime but
has come to have a far broader reach. The office does not need a
criminal conviction or even charges to pursue a file. The Globe has
interviewed those who have had to fight to keep their homes, vehicles,
money and even a coin collection. Others have been unable to afford to
argue their case.

B.C.'s NDP government, which had called for a review of the province's
Civil Forfeiture Act when it was in opposition, has since said it does
not plan to order one. The province's Public Safety Minister, Mike
Farnworth, has said the office is operating as it should.

Bibhas Vaze, a lawyer for the homeowner in the most recent case, said
in an interview that the file "brings together all the different
elements about what is wrong with civil forfeiture and why there needs
to be changes."

In its notice of civil claim, the Civil Forfeiture Office said the
defendant, Kwok Wai (Andy) Liu, purchased the home in March, 2012. It
said Mr. Liu granted the Vancouver Police Department access to the
property in September, 2015, at which point officers discovered
approximately 700 to 750 marijuana plants.

The office has said 10 kilograms of dried marijuana, "packaged in a
manner consistent with drug trafficking rather than personal
consumption," were also found, as were three Health Canada licences
allowing for personal production of cannabis. Each licence authorized
the growth of 146 plants.

The property was sold in October, 2016, for approximately
$3.1-million. The money is being held by the court until the case is
resolved. The office has said Mr. Liu would not have been able to
afford the home unless he trafficked marijuana. It has said money from
the sale should be forfeited to the province.

In his response, Mr. Liu said the Civil Forfeiture Act violates the

He said officers entered his property without a warrant and any plants
or harvested marijuana was lawfully produced and processed under the
Health Canada licences.

Mr. Liu said he suffers from chronic pain as a result of a motor
vehicle accident and his physician prescribed medical cannabis. He
said he agreed to allow a friend and her mother, who like him had
Health Canada licences, to grow at the property.

Mr. Liu said Vancouver police did not forward his file to the Crown to
consider criminal charges but did send it to the Civil Forfeiture
Office, which faces a lower standard of proof - on a balance of
probabilities instead of beyond a reasonable doubt.

He said individuals who face civil forfeiture cases do not have
adequate protections, including but not limited to the presumption of
innocence and the right to not be compelled by the state to testify
against oneself.

Mr. Liu is seeking several declarations, including one that would see
the right to silence apply to civil forfeiture proceedings and one
that would state the application of the Civil Forfeiture Act can lead
to results that are grossly disproportionate to the alleged unlawful

"At the end of the day, this act as it's written has the potential and
we say actually has led to widespread abuse in a manner that breaches
the Section 7 [Charter] rights of the common citizen," Mr. Vaze said,
noting that defendants in civil forfeiture cases are also not eligible
for legal aid.

In a written statement, Phil Tawtel, B.C.'s director of civil
forfeiture, said he could not directly comment on the case.

"What I can say generally is that every civil forfeiture case depends
on the quality of the related criminal case file referred by a police
agency, and that at this time, unlicensed production and distribution
of marijuana remain illegal," he said.

When asked what impact the impending legalization of marijuana would
have on the office's operations, Mr. Tawtel said it was too early to
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