B.C.'s civil forfeiture law faces 'reasonable limits' Charter test
Many problematic aspects to law, judge says, ruling on province's bid to seize warehouses as proceeds of crime
A civil forfeiture case in British Columbia has hit a snag that could have implications for the controversial provincial legislation, after a judge ruled that part of the act governing civil forfeiture is inconsistent with the Canadian Charter and must be tested to see if it falls within "reasonable limits."
The case concerns a 2021 lawsuit filed by B.C.'s Director of Civil Forfeiture to seize warehouses in South Vancouver as "proceeds and instruments of unlawful activity."
Vancouver police raided the warehouses in 2019, shutting down what they claimed was a multimillion-dollar drug operation making illegal cannabis extracts.
The lawsuit hasn't been resolved, but in a Dec. 29 ruling, B.C. Supreme Court Justice Jasmin Ahmad said there were "many problematic aspects" to the act's search and seizure provision, and it "does not strike a reasonable balance between the state's interest and an individual's privacy rights."
Critics have long claimed that B.C.'s civil forfeiture system is problematic, allowing the government to seize property linked to criminal activity even when the owner hasn't been convicted.
Criminality has to be proven beyond a reasonable doubt, but civil forfeiture falls under the lower bar for proving civil liability under a balance of probabilities.
The Director of Civil Forfeiture had sought bank account information from the owners of the warehouse units, Realtor Scott McDermid and Leslie Ann McDermid.
The B.C. Civil Forfeiture Office claims Scott McDermid was aware of the unlawful activity, allegations that "raise the spectre of criminality," the court found.
But the McDermids argued in court that the sections of the forfeiture act authorizing the probes into their bank accounts are unconstitutional.
Ahmad's decision said one section of the act was "overly broad" and searches authorized by it were "highly intrusive.''
The judge found that section was inconsistent with the Charter, but it could still survive under the Charter's reasonable limits clause, which allows infringements on protected rights that are "demonstrably justified in a free and democratic society."
Scott McDermid and his lawyer Greg DelBigio both declined to comment on the ruling.
The B.C. Ministry of Public Safety said in an emailed statement that it is reviewing the court decision and that courts all the way up to the Supreme Court of Canada "have all consistently upheld the validity of civil forfeiture as a means to properly address the proceeds and tools of unlawful activity.''
Legal observers and critics of the civil forfeiture legislation say the ruling in the McDermids case is significant, regardless of the outcome of the impending "reasonable limits'' test.
"The B.C. government has held out civil forfeiture as a central pillar in the fight against money laundering," said criminal defence lawyer Matthew Nathanson in an email.
"In support of this position, it has claimed that the regime is constitutionally compliant. The Supreme Court of British Columbia has now held otherwise."
Lawyer Greg McMullen with Segev LLP in Vancouver has criticized civil forfeiture for the B.C. Civil Liberties Association, claiming it "creates a presumption of guilt" among those facing property forfeiture actions.
"It seems like an end run around the high criminal standard, which is there for a reason,'' he said.
"We don't want people being punished if we aren't certain that we're punishing the right person, and I think civil forfeiture goes too far in the direction of allowing the government to punish people who they can't prove have done anything wrong."
In her Dec. 29 ruling, Ahmad said "the stigma of criminal conduct is inescapable."
The Vancouver Police Department did not respond to requests for comment on the outcome of the 2019 cannabis lab investigation.