August 14, 2022

Opinion: British Columbia has been criticized for seizing very invaluable belongings for comparatively minor offences.

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As soon as once more, the British Columbia Supreme Court docket has drawn consideration to the province’s civil forfeiture legislation and its draconian enforcement of people that haven’t been charged, not to mention convicted.

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On this case, an internet buy final summer season of $570 value of marijuana and psilocybin “undercover” as a Calgary police officer resulted within the British Columbia Director of Civil Confiscations being ordered in December to freeze Okanagan belongings and financial institution accounts holding thousands and thousands of {dollars}.

The director, who has at all times been a former RCMP officer, wanted a second renewal of the freeze orders as they have been coming to an finish and the police investigation had not but been accomplished.

“I have to keep in mind that not one of the defendants have been charged with wrongdoing arising out of the investigation, and that the director didn’t show that the funds transferred to the Hidden Gem accounts have been the proceeds of unlawful actions,” Choose Katherine Murray wrote in her decision. .

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“At this level, all of the principal has to do is present some proof.”

And, the truth is, her palms have been tied.

“That was thought of a low threshold,” Murray defined. “It’s on the defendants to indicate that (Momentary Preservation Order) is clearly not within the pursuits of justice… stringent… (a check that) will not often be carried out. … Our Court docket of Enchantment held that the waiver of confiscation within the pursuits of justice is an distinctive treatment that have to be granted with care.”

Launched nearly 20 years in the past by the liberal administration of British Columbia and backed by the NDP, the legislation was supposed to discourage crime and compensate victims.

In observe, this has proved to be an affront to the idea of innocence till confirmed responsible, and likewise dangerously blurs the separation of civil and felony legislation—one designed to resolve non-public disputes and the opposite to implement social values.

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They’re sometimes called private and non-private legislation, and this week the federal legal professional normal defined to senators the distinction and why Ottawa didn’t go to court docket for an injunction (a civil litigation treatment) to cope with the trucker disaster.

Ontario and Alberta have been the primary provinces to undertake this civil legislation strategy to crime discount in 2001, and over the following decade BC Saskatchewan, Manitoba, Quebec, Nova Scotia and New Brunswick adopted swimsuit.

However these legal guidelines don’t seem to have achieved their said objectives, however as an alternative proved to be fatally flawed. They undermine belief and confidence within the independence of legislation enforcement and the authorized system.

British Columbia, for instance, has been criticized for seizing very invaluable belongings for comparatively minor offences.

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This disregard for proportionality is strictly what civil libertarians warned about when the laws was proposed.

It wasn’t till 2012, when criticism erupted over one in all a number of embarrassing confiscations, that Victoria really began funneling some huge cash to the victims in any respect.

On this case, an appellate panel scolded the federal government for abuse — seizing a $52,000 Dodge Ram from a 51-year-old man over a small quantity of marijuana.

These are insidious legal guidelines, provided that there are provisions within the felony code to incorporate confiscation within the sentencing of a convicted particular person.

For a similar crime, the identical property could be claimed in federal felony and provincial civil proceedings.

It is only a double menace, extortion, a product of the overzealous US legislation enforcement coverage of the Nineties.

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Not like a felony trial, the place the defendant has the correct to stay silent and the prosecutor should show guilt past affordable doubt, the confiscation legislation displays Houdini-worthy sleight of hand.

The asset is the defendant and the proprietor has no rights: the burden is transferred and so they should show the origin of the property.

The director solely must set his case on the stability of possibilities.

Civil forfeiture circumvents vital procedural shields which have been developed over the centuries.

Individuals are pressured to withstand the ability and limitless sources of the state with out the identical protections which can be offered to the accused – the correct to stay silent and the heavy burden of proof positioned on the prosecutor, past any affordable doubt.

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Civil forfeiture officers even work facet by facet in police stations, serving to officers full the paperwork to begin civil forfeitures, creating jobs for attorneys, cops and bureaucrats.

In a 2020 research printed within the Worldwide Public Administration Journal, researchers analyzed property forfeiture instances dedicated by 2,278 municipal police departments between 1993 and 2007 and located “a major affiliation between minority proportions and reported forfeiture proceeds.”

Others have come to the identical conclusion.

It’s excessive time for the federal government to repeal this abusive laws and cease abusing the civil courts.

On the very least, because it was supposed to offer compensation to victims and redress, it ought to solely be out there when there may be an identifiable sufferer who has suffered direct hurt.

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“The responsibility lies with the defendants… (and) I’m not happy that the defendants have fulfilled their burden,” Choose Murray concluded.

imulgrew@postmedia.com

twitter.com/ianmulgrew


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