(The Canadian Press)

B.C.’s plans to expand civil forfeiture program called unconstitutional

Under the changes, the onus would be shifted to a defendant to prove that an asset is not an instrument or proceed of unlawful activity

Eight years have passed since David Lloydsmith learned British Columbia’s Civil Forfeiture Office wanted to seize his modest two-bedroom bungalow, but he says the panic and anger that gripped him that day have not gone away.

Lloydsmith is still outraged that the office tried to seize his home based on a police search without a warrant that produced no criminal charges. B.C.’s Supreme Court and Court of Appeal eventually ruled his rights were violated, but he says the emotional scars remain.

“It cost me friends. It cost me a relationship. I still haven’t been able to have another relationship since,” he said, adding he still owes a friend money for helping cover tens of thousands of dollars in legal bills.

“I have serious trouble sleeping. It’s done damage to me that I don’t know if I can ever get over.”

Critics of civil forfeiture hailed the Lloydsmith decision as one that sent a message about the need to protect charter rights. Some were shocked on Tuesday when the B.C. government announced it intends to dramatically expand civil forfeiture.

Calling it the “most significant revision” of the Civil Forfeiture Act since its introduction in 2006, Public Safety Minister Mike Farnworth announced three proposed changes, which he said were aimed at organized crime and fentanyl trafficking.

Under the changes, the onus would be shifted to a defendant to prove that an asset is not an instrument or proceed of unlawful activity, in cases where the Civil Forfeiture Office provides the court with “sufficient evidence” clearly linking the asset to crime.

The office would also be able to ask a judge to order an accused person’s assets be held before it formally sues them, and finally, it would be able to compel banks to hand over information before customers transfer assets.

Shifting the burden of proof to a defendant is “obviously terrible,” said Micheal Vonn of the B.C. Civil Liberties Association.

The Civil Forfeiture Office files lawsuits to seize assets believed to be the proceeds or instruments of illegal activity, regardless of whether the asset owner has been charged or convicted, and even if they’ve been acquitted, of a crime.

Vonn noted the standard of proof is already lower in a civil trial than a criminal one. In civil proceedings, one party’s case must simply be more probable than the other’s, while in criminal trials, guilt must be proven beyond a reasonable doubt.

Civil forfeiture defendants are also ineligible for legal aid, unlike many people charged with crimes, she added.

“Now, they’re actually reversing the onus on certain portions of this,” Vonn said. “So you show up in court — very lucky if you’re able to defend yourself at all, vis-a-vis counsel or otherwise — to prove that you are not guilty.

“That’s a standard that almost never will you see justified constitutionally.”

As for the amendments aimed at stopping people from transferring assets before they can be seized, Vonn said she’s concerned about the forfeiture office accessing banking information using a lower legal standard than police.

“We have processes whereby police are entitled to investigate on a warrant standard of reasonable and probable grounds. We have a reason for that — so we protect against abuse,” she said.

There is already a criminal forfeiture process that seizes assets after conviction, she added.

She said the civil liberties association would consider challenging the amendments if passed, adding she’s baffled by Farnworth’s comments that the government consulted with experts and believes the amendments are constitutional.

Phil Tawtel, executive director of B.C.’s Civil Forfeiture Office, said the program focuses on “property, not people.”

“There is no case where someone is going to go to jail for this,” he said. “The question is: is there enough evidence to show that an asset, a property, is either the proceeds or an instrument of unlawful activity?”

The Supreme Court of Canada has upheld provincial civil forfeiture laws, he said, ruling unanimously in 2009 that they aim to deter crime and do not encroach federal jurisdiction over criminal offences.

“Certainly, it’s still incumbent on the director to bring evidence to satisfy the court that the forfeiture is in the interests of justice,” Tawtel said.

The office has brought in $87 million since 2006, spending $37.5 million on crime prevention initiatives and $1.63 million on victim compensation. The remainder has been spent on legal counsel and office operations, Tawtel said.

Bibhas Vaze, a lawyer who has represented many civil forfeiture defendants including Lloydsmith, said he’s worried that in the face of criticism about the office, the government wants to expand it further.

Police showed up at Lloydsmith’s home in Mission in 2007 and said they were investigating a 911 call. When he refused to let them in, they forced their way in and found, seized and destroyed a number of marijuana plants.

Lloydsmith said the plants were for his own medical use and he was not charged. Nevertheless, the forfeiture office sued to seize his home in 2011, and only abandoned the case after the courts ruled the “unreasonable” search violated his rights.

Vaze said civil forfeiture enables the government to use evidence found in illegal police searches that would not be admissible in criminal trials.

Tawtel responded that it’s up to the court to decide whether charter breaches have occurred and what the remedies are.

“I’m not out there saying that government should not be able to seize assets of people who are engaging in illegal activity,” said Vaze. “The problem is: at what cost?”

Laura Kane, The Canadian Press


Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

North District RCMP are urging the public’s assistance in locating Prince George resident Amber Weutz, 25, last seen Oct. 18 in the Canim Mahood Lake area east of 100 Mile House. (Photo submitted)
RCMP release more information on missing Prince George woman

Amber Weutz, 25, was last seen in the Canim and Mahood Lake area on Oct. 18

Courtney Driver is the new president of the 100 Mile Performing Arts Society. (Photo submitted)
100 Mile Performing Arts Society elects new president

Courtney Driver wants to provide more diverse events

Erica Henderson the supervisor of early year services and programs at South Cariboo Early Years Centre and others were giving out Halloween Family Activity Kits the week leading up to Halloween. (Patrick Davies photo - 100 Mile Free Press)
Halloween activity kits offered to kids at home

South Cariboo Early Years Centre is finding ways to bring activities into children’s homes.

Juliette Leclair enjoys a day of skiing with the 100 Mile Nordics.
Nordic skiers practice skills in early snowfall

Thirteen young skiers got out on their skis at 100 Mile Junior.

Physical distancing signs are a common sight in B.C. stores and businesses. THE CANADIAN PRESS
272 more COVID-19 cases for B.C., outbreak at oil sands project

Three new health care outbreaks, three declared over

This house at 414 Royal Ave. became notorious for its residents’ and visitors’ penchant for attracting police. It was also the site of a gruesome torture in August 2018. It was demolished in 2019. KTW
6-year sentence for Kamloops man who helped carve ‘rat’ into flesh of fellow gang member

Ricky Dennis was one of three men involved in the August 2018 attack

Cpl. Nathan Berze, media officer for the Mission RCMP, giving an update on the investigation at 11:30 a.m., Oct. 30. Patrick Penner photo.
VIDEO: Prisoner convicted of first-degree murder still at large from Mission Institution

When 10 p.m. count was conducted, staff discovered Roderick Muchikekwanape had disappeared

Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Among the pumpkin carvings created this year by Rick Chong of Abbotsford is this tribute to fallen officer Cont. Allan Young.
Abbotsford pumpkin carver’s creations include fallen police officer

Rick Chong carves and displays 30 pumpkins every year

An online fundraising campaign in support of the six-year-old boy, Edgar Colby, who was hit by a car on Range Road Oct. 25 has raised more than $62,000 in a day. (Submitted)
$62K raised in 1 day for boy in coma at BC Children’s after being hit by vehicle in Yukon

The boy’s aunt says the family is “very grateful” for the support they’ve received from the community

Health care employees take extensive precautions when working with people infected or suspected of having COVID-19. THE CANADIAN PRESS/Chris Young
WorkSafeBC disallows majority of COVID-19 job injury claims

Health care, social services employees filing the most claims

Most Read