Ian Mulgrew: B.C.’s civil forfeiture law is criminal

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Once again, the B.C. Supreme Court has called attention to the province’s civil forfeiture law and its draconian use against people who have not been charged, much less convicted.

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In this case, the online purchase last summer of $570 worth of marijuana and psilocybin by an “undercover” Calgary police officer led to the B.C. director of civil forfeiture in December to obtain orders freezing Okanagan properties and bank accounts holding millions of dollars.

The director, who has always been a former RCMP officer, needed a second extension of the freezing orders as they were about to expire and the police investigation isn’t finished.

“I must remain mindful that neither of the defendants has been charged with offences arising from the investigation, and that the director has not proved that the funds transferred into the Hidden Gem accounts are proceeds of illegal activity,” Justice Catherine Murray wrote in her ruling.

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“At this point, all the director has to do is show some evidence.”

And essentially, her hands were tied.

“This has been recognized as a low threshold,” Murray explained. “The onus is on the defendants to show that an (Interim Preservation Order) is clearly not in the interests of justice … a stringent … (test that) will be rarely met. … Our Court of Appeal has held that relief from forfeiture  in the interests of justice is an exceptional remedy only to be granted sparingly.”

Introduced nearly 20 years ago by a B.C. Liberal administration and supported by the NDP, the legislation was intended to deter crime and compensate victims.

In practice, it has proven to be an affront to the concept of innocent until proven guilty, as well as to dangerously blur the separation of civil and criminal law — one designed for resolving private disputes and the other for enforcing societal values.

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They are often called public and private law, and this week the federal attorney-general was explaining the difference to Senators and why Ottawa did not go to court for an injunction (a remedy in civil disputes) to deal with the truckers’ crisis.

Ontario and Alberta were the first provinces to adopt this civil law approach to curtailing crime in 2001, and over the following decade B.C., Saskatchewan, Manitoba, Quebec, Nova Scotia, and New Brunswick all followed.

But these laws don’t appear to have accomplished the stated goals and instead they have proven to be fatally flawed. They sap confidence and faith in the independence of law enforcement and the legal system.

B.C., for instance, has been criticized for seizing highly valuable assets for relatively insignificant offences.

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This lack of regard for proportionality is exactly what civil libertarians warned about when the legislation was proposed.

It wasn’t until 2012 when criticism erupted over one of several embarrassing forfeitures that Victoria actually began channeling much money at all toward victims.

In that case, the appellate bench scolded the government for being abusive — seizing a 51-year-old’s $52,000 Dodge Ram over a tiny amount of marijuana.

These are insidious laws given that the criminal code has provisions for forfeiture to be included in a convict’s sentence.

From a single crime, the same property could be claimed in federal criminal forfeiture and provincial civil proceedings.

This is just double-jeopardy, a shakedown, a product of over-zealous, 1990s U.S.-law-and-order politics.

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Unlike a criminal trial, where an accused has the right to remain silent and the prosecutor must prove guilt beyond a reasonable doubt, the forfeiture law performs a sleight-of-hand worthy of Houdini.

The asset is the defendant, and the owner doesn’t have rights: The onus is reversed and they must prove the property’s provenance.

The director only has to establish his case on a balance of probabilities.

Civil forfeiture circumvents important procedural shields that have been developed over centuries.

Individuals are forced to confront the power and unlimited resources of the state without the same protections accorded an accused — the right to remain silent, and the heavy burden of proof placed on the prosecutor, beyond a reasonable doubt.

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Civil forfeiture staff even work cheek-by-jowl in police offices helping officers provide the paperwork to launch civil forfeitures, making work for lawyers, police officers and bureaucrats.

In a 2020 study published in the International Public Management Journal, researchers analyzed forfeitures by 2,278 municipal police departments between 1993 and 2007 and found “a significant relationship between minority population share and reported forfeiture revenue.”

Others reached a similar conclusion.

It is long past time for the government to abolish this offensive legislation and quit abusing the civil courts.

At the very least, since it was intended to provide compensation for victims and remediation, it should be available only when there is an identifiable victim who has suffered a direct loss.

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“The onus is on the defendants … (and) I am not satisfied that the defendants have met their burden,” Justice Murray concluded.

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