Judge rules against seizures by B.C.’s Civil Forfeiture Office

A judge has ruled that British Columbia's Civil Forfeiture Office cannot seize assets unless they are tied to unlawful activity, a decision that a lawyer in the case says is an important precedent.

The case began in November, 2015, when the forfeiture office began an attempt to seize property from several people charged in an RCMP investigation into a marijuana trafficking network one month earlier. The office – a government agency that has been criticized for its aggressive attempts to seize homes, vehicles and cash connected to criminal offences, even from people who have not been convicted or charged – named six of the men who were charged as defendants in the civil-forfeiture case.

One of the men and his wife applied in B.C. Supreme Court earlier this year to have part of the notice of civil claim thrown out. Counsel for Stephen and Jennifer Lockett argued that the director of the Civil Forfeiture Office failed to show a link between their property – three homes and two vehicles – and unlawful activity. The couple said the director, citing Mr. Lockett's criminal record, had claimed that even if their property was obtained using legitimate income, it could still be forfeited because they engaged in criminal activity and used illegitimate income to support their lifestyle – including the purchase of clothing, food, entertainment and travel.

The couple argued that the Civil Forfeiture Act does not allow the office to seize property bought with legitimate income just because lifestyle purchases might have been made with ill-gotten gains.

A judge late last week agreed with the couple and ordered several paragraphs to be struck out of the notice of civil claim.

"I agree with the lifestyle argument of the applicants," Justice Kenneth Affleck wrote in the ruling. "The Act cannot be construed to permit the director to seek to forfeit property unless it is the proceeds of unlawful activity or an instrument of unlawful activity."

Joseph Arvay, one of the lawyers representing the couple, said he is hopeful the director will drop the case against them altogether.

Mr. Arvay said the Civil Forfeiture Act allows the forfeiture only of property that can be traced directly or indirectly to the proceeds of criminal activity.

"This is an important decision as it provided a check on what is otherwise an already potentially excessive use of the director's powers to use the civil forfeiture provisions as [an] end-run around the more rigorous and rights-protecting features of our criminal law," he wrote in an e-mail.

Mr. Arvay said he believes the director has been employing the lifestyle claim "rather routinely" and the ruling will likely affect other cases.

A B.C. Ministry of Public Safety spokesperson, when asked for the director's reaction to the ruling, said in an e-mail that the matter remains before the courts and it would be inappropriate to comment.

"The office is reviewing Friday's ruling. All cases that proceed to court are dynamic and, as such, decisions about whether to proceed or cease a particular action are constantly reviewed with the office's counsel," the statement read.

The statement said the director would not comment on the ruling's potential impact on other cases.

The Globe and Mail has reported extensively on the Civil Forfeiture Office, which was created as a way to fight organized crime but has come to have a far broader reach. Critics have questioned some of the files it takes on, calling it a cash cow.

The office argued in court that "this is the very type of organized crime the Act was explicitly legislated to deter and suppress."

Mr. Lockett's criminal case is ongoing. He was one of 13 people arrested in an investigation the RCMP called Operation Hagrid. In addition to seven men arrested in B.C., five men and one woman were arrested in Nova Scotia. The RCMP said at the time that Mr. Lockett was charged with conspiracy to traffic marijuana.

The Civil Forfeiture Office marked its 10th anniversary at a ceremony in Surrey on Thursday. It has seized nearly $66-million in property since it opened.