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Contraries of B.C. Civil Forfeiture

MLA Marc Dalton inspects night vision goggles purchased with money seized through civil forfeiture. - The News/files
MLA Marc Dalton inspects night vision goggles purchased with money seized through civil forfeiture.
— image credit: The News/files

The lush rural property near Webster’s Corner was a retirement plan for the elementary school teacher.

Purchased in 2003, Penelope Carlson boards horses on a paddock amongst tall Douglas firs and cedars.

As a favour to a friend, Carlson, 63, agreed to use a building on her four-hectare property to grow medical marijuana under Health Canada regulations.

It was an operation that was legal, sanctioned by federal laws.

Carlson’s retirement plans were on track until November 2010, when an electrician tattled on her growop.

His tip led 23 Ridge Meadows RCMP officers to Carlson’s home, guns drawn and clad in bullet-proof vests.

According to court documents filed by B.C.’s Director of Civil Forfeiture, RCMP found marijuana in three grow rooms in a building on Carlson’s property and seized a total of 615 marijuana plants and 55 ounces of dried marijuana.

Carlson was charged with production for the purpose of trafficking, but the charges were tossed out after the court learned the growop was legal.

Despite no conviction, the province is now attempting to seize Carlson’s property under legislation that’s increasingly being criticized for targeting the innocent.

Enacted in 2006, the civil-forfeiture law was touted as a tool to fight organized crime, but three cases from Maple Ridge filed in the past year show it has a much broader reach.

Carlson and the two men whose properties are up for seizure were reluctant to speak in-depth about the lawsuits.

“The situation of many respectable people like Penny who are being tortured financially and emotionally by the director of civil forfeiture’s endless action are further victimized by society by such publicity,” said Carlson’s lawyer, Tonia Grace.

“She doesn’t need more unfair stigma.”

Port Coquitlam lawyer Josef Schwarz is also facing the prospect of losing his rental property at 12253 – 228 Street in Maple Ridge, below, after he failed to heed repeated requests to turf his drug-dealing tenants.

According to documents filed in B.C. Supreme Court, Ridge Meadows RCMP raided the yellow house, located near a playground, three times in the span of three months starting in January 2013. Crack, ecstasy and marijuana were seized and a 42-year-old woman is facing charges in connection with the busts.

After the first raid, Mounties contacted Schwarz and told him to help them reduce crime by “paying more attention” to the activities of his tenant.

Following the second raid, in February 2013, Schwarz was warned that the property could be “subject to civil or criminal restraint and forfeiture.”

Though Schwarz was not party to any of the illegal activities and never charged criminally, seven months later B.C.’s Civil Forfeiture Office is targeting it on grounds the house was used as an instrument of unlawful activity.

The court documents state the defendant “did know or have reason to know of the unlawful acts of trafficking in and possession of controlled substances,” and benefited from the income derived from renting it out.

Schwarz declined an interview.

“Regrettably, I am unavailable to discuss this matter with you. However, the [act] does seem contrary to our common sense understanding of fairness and justice,” he said in an email.

“It is not surprising that there is a constitutional challenge of the legislation presently underway by one or more other parties.”

The Civil Forfeiture Office can confiscate any property deemed to be the proceeds of unlawful activity and the B.C. law does not require criminal charges or a conviction to do so.

Since the office opened in 2006, the province reports it has collected $41-million from seizures of everything from houses and sports cars to helicopters.

Director of Civil Forfeiture Phil Tawtel insist the process does not violate Charter rights, noting the Supreme Court of Canada has upheld the constitutionality of civil forfeiture laws across the country.

“Civil forfeiture actions do not depend on criminal charges or convictions – but a rigorous, due process of law still applies,” said Tawtel.

“The civil court process is entirely separate … and involves taking action against property rather than people.”

Critics of the program, however, call the process “fundamentally unfair” and a “cash cow” for the government.

“The whole notion that this is about property, not about people, is incredibly problematic,” said Michael Vonn, a policy director with the B.C. Civil Liberties Association.

“That’s a complete legal fiction.”

The B.C. Civil Liberties Association has fielded a dozen complaints from people being targeted by the forfeiture office since it opened.

“We are hearing constantly of people settling because they cannot afford to fight,” said Vonn.

“It is a massive access to justice issue. You have the unlimited resources of the state coming down on people who are in a position of not being able to defend themselves very effectively.”

The province’s Ombudsperson Kim Carter encourages people who feel that they have not been treated fairly by the administrative processes of the Civil Forfeiture Office to bring their complaints to her.

Carter noted there is a high level of public concern about the fairness of the forfeiture process and wants to ensure that people know all the options they have for addressing problems.

“While people know they can bring problems to the attention of the ministry, some may not be aware that my office can also respond to these complaints, and may be able to find fair resolutions,” Carter said.

Ironically, the first group to file a legal challenge of the government’s civil forfeiture law are B.C. Hells Angels, whose members claim it violates their constitutional rights.

The province, however, believes the legislation is an essential crime-fighting tool.

In 2013, Ridge Meadows RCMP forwarded 13 cases to the Civil Forfeiture Office, netting $122,711 in cash and vehicles. Four cases have been forwarded this year. Since 2006, there have 28 forfeitures from Ridge Meadows, totalling $376,975.

Cash gained from the forfeitures is returned to police forces and other organizations, such as the youth diversion program and Cythera Transition House Society, in the form of grants.

In 2012, Ridge Meadows RCMP received a $6,100 grant for the purchase of night vision goggles, tablet computers and a digital camera, while Cythera House and Maple Ridge-Pitt Meadows Community Services received $5,000 and $25,000, respectively, for programs aimed at preventing violence against women and children.

“It’s a very important tool to deal with criminal activity,” said Maple Ridge-Mission MLA Marc Dalton, who championed the program locally as a way to snuff out illegal growops.

“It is doing what it was meant to do, which is to go after ill-gotten gains.”

Dalton does not believe the program is unfairly targeting the innocent. He notes referrals must come from police, must have a public interest component and go through the courts.

“There are serious consequences to illegal activity. If it is not illegal, there is recourse,” he said.

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