British Columbia’s controversial civil forfeiture law to be put to Charter test

Critics have long claimed that the system is problematic because it allows the government to seize property linked to criminal activity, even when the owner has not been convicted.

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In July 2019, Vancouver police announced they had dismantled a multimillion-dollar drug operation after raiding two laboratories in south Vancouver that were allegedly manufacturing illegal cannabis extracts.

Department spokesman Sgt. Steve Addison said at the time that the laboratories were “large and sophisticated”, posing “a significant risk to the public”.

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A news release said “thousands of pounds of drugs” were seized, including cannabis extracts, balms and edibles. He said charges were anticipated when the investigation concluded, although it is unclear if anyone was ever prosecuted.

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Then, in October 2021, British Columbia’s Director of Civil Forfeiture filed a lawsuit to seize the Shaughnessy Street warehouses in South Vancouver as “proceeds and instruments of unlawful activities.”

But the case has hit a roadblock that could have implications for the province’s controversial civil forfeiture regime, as a British Columbia Supreme Court judge ruled that part of the law governing it is inconsistent with the Canadian Charter and It should be tested to see if it falls. within “reasonable limits”.

The lawsuit has not been resolved, but in a Dec. 29 ruling, Judge Jasmin Ahmad said there were “many problematic aspects” to the law’s search and seizure provision, and that it “fails to strike a reasonable balance between the interest of the State… and the privacy rights of an individual.”

Critics have long claimed that British Columbia’s civil forfeiture system is problematic, allowing the government to seize property linked to criminal activity even when the owner has not been convicted.

Criminality must be proven beyond a reasonable doubt, but civil forfeiture falls within the lower level of proving civil liability on a balance of probabilities.

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The Director of Civil Forfeiture had requested bank account information from the owners of the warehouse units, real estate agent Scott McDermid and Leslie Ann McDermid.

The forfeiture office said the information would shed light on “relevant evidence of illegal activity and the McDermids’ state of knowledge (regarding) illegal activity on the properties.”

The office claims Scott McDermid was aware of the illegal activity, allegations that “raise the specter of criminality,” the court concluded.

But the McDermids argued in court that sections of the forfeiture law that authorized searches into their bank accounts were unconstitutional.

Ahmad found that one section of the law was “overly broad” and the searches authorized by it were “highly intrusive.”

While the law’s search provision served an “important and compelling purpose,” Ahmad ruled, its “overbreadth…allows for significant intrusion into information that tends to reveal intimate details of one’s lifestyle and choices.” of the individual’ and in which the parties “I agree that individuals have a reasonable expectation of privacy.”

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“Excessive breadth also dilutes the protection that judicial oversight would otherwise provide,” Ahmad ruled.

“Also problematic is the lack of other procedural safeguards…the lack of an after-the-fact notification requirement means that in cases where a confiscation action is not initiated, an individual may not even know that a confiscation action was taken.” carry out a search.”

Ahmad found the section of the law to be inconsistent with the Charter, but could still survive under the Charter’s reasonable limits clause, which allows infringements of protected rights that are “demonstrably justified in a free and democratic society.”

Scott McDermid and his attorney Greg DelBigio declined to comment on the ruling.

British Columbia’s Ministry of Public Safety said in an emailed statement that it “is reviewing the court decision and has not been informed of a hearing date” for the next phase of the case.

The ministry said all courts, up to the Supreme Court of Canada, “have consistently upheld the validity of civil forfeiture as a means of adequately addressing the proceeds and tools of illegal activity.”

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“The government will continue to pursue and seize illegally obtained assets and will use the proceeds from their sale (for) community safety and crime prevention initiatives to help repair the damage caused by illegal activity in British Columbia,” the statement said.

Legal observers and critics of the civil forfeiture regime say the ruling in the McDermid case is significant, regardless of the outcome of the impending “reasonable limits” test.

“The British Columbia government has considered civil forfeiture a central pillar in the fight against money laundering. In support of this position, he has affirmed that the regime complies with constitutionality. The British Columbia Supreme Court has decided otherwise,” criminal defense lawyer Matthew Nathanson said in an email.

Nathanson, who was not involved in the case but has experience in constitutional matters, said that “this important ruling affirms that the broad powers that the government has granted itself in the context of civil forfeiture are not unlimited, and that the rights citizens’ constitutional rights must always be respected. respected.”

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Lawyer Greg McMullen of Segev LLP in Vancouver has criticized the province’s civil forfeiture regime for the British Columbia Civil Liberties Association, claiming it “creates a presumption of guilt” among those facing property forfeiture actions.

McMullen said in an interview that the section at issue in the McDermid case gave the civil forfeiture office “a very broad power that was very open to abuse.”

McMullen said the province’s civil forfeiture regime makes him “deeply uncomfortable.”

“It seems like an end to high criminal standards, which exist for a reason,” he said. “We don’t want people to be punished if we’re not sure we’re punishing the right person, and I think civil forfeiture goes too far by allowing the government to punish people who can’t prove they committed a crime.” nothing bad.”

“I think these investigative powers are equally creepy and open to abuse,” he said. “If there is criminal activity, the people who committed it should not be able to live off the profits, but until we have a criminal conviction, we won’t know.”

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In his December 29 ruling, Ahmad had said that “the stigma of criminal conduct is inescapable.”

“(The) stigma associated with serious allegations of ‘illegal activity’ brings this regime closer to a quasi-criminal regime and not a purely civil one in which no determination of ‘illegal activity’ is required.”

McMullen said there has been “a heartbreaking abuse of the civil forfeiture system,” targeting people who have not been convicted of a crime, a problematic feature of the law in a democratic society.

“I fully support asset forfeiture following a criminal conviction,” he said. “I think that makes a lot of sense.”

The Vancouver Police Department did not respond to requests for comment on the outcome of the 2019 cannabis lab investigation.

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