A B.C. Supreme Court judge has ruled the RCMP violated the Charter rights of a husband and wife whose home was linked to a marijuana grow operation, a dispute that has since come to involve the province’s Civil Forfeiture Office.Wesley VanDinter/Getty Images
A B.C. Supreme Court judge has ruled the RCMP violated the Charter rights of a husband and wife whose home was linked to a marijuana grow operation, a dispute that has since come to involve the province's Civil Forfeiture Office.
Criminal charges against the couple were stayed four years ago, but the file is still being pursued by the Civil Forfeiture 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.
David and Jennifer Johnson were arrested in June, 2009, after a raid at their home in Surrey, B.C. Mr. Johnson was in a vehicle with his three-year-old son when he was taken into custody. Criminal charges against the husband and wife were dropped in 2012, after a judge ruled the case had taken too long to get to trial and the alleged grow op was "relatively small" at 267 plants.
But five days after criminal charges were stayed, the RCMP forwarded the file to the Civil Forfeiture Office. The office then began proceedings to seize $130,000 removed from the home during the police search.
The Globe and Mail has reported extensively on the Civil Forfeiture Office, which was introduced 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.
B.C. Supreme Court Justice Miriam Maisonville in a recent ruling found police violated the couple's Charter rights.
She said Ms. Johnson was not given an opportunity to call a lawyer for nearly two hours after police entered the couple's home.
The judge said police also should not have asked Mr. Johnson about a hydro device before he spoke with counsel.
Mr. Johnson had said he wished to speak with a lawyer who had represented him in a real estate transaction, although he could not immediately recall the lawyer's name.
Matthew Jackson, the lawyer who is now representing Mr. Johnson, said a hearing will be scheduled to determine how the ruling affects the civil forfeiture case.
"In a criminal case, normally what is sought is exclusion of all the police evidence. And so that's something that will be on the table in this case," he said in an interview.
"But the Johnsons will also be seeking … for dismissal of the entire claim against them on the basis that their Charter rights have been seriously violated and that the appropriate remedy by the court is to have this case dismissed."
B.C.'s Ministry of Public Safety, in a statement, said the Civil Forfeiture Office is reviewing the decision.
"As the case remains active and before the courts no further comment can be provided," the statement read.
A Surrey RCMP spokesperson said it is the police's role "to investigate and present the courts with evidence so that they may make a decision. In light of that, it would be inappropriate for us to make comment regarding a court ruling."
Justice Maisonville, who delivered her ruling on Friday, did not agree with all of the Charter breaches alleged by the Johnsons.
Mr. Johnson had argued police used excessive force and pointed guns at him and his son. But the judge found the officers had their guns in the "low ready" position, at a 45-degree angle toward the ground.
"The limited information they had on Mr. Johnson did not eliminate this risk. They did not know if he had weapons in the car. The vehicle itself posed a serious threat to the officers. Given all the circumstances, I find the officers did not use unreasonable or excessive force," the judge wrote.
The judge did find the RCMP failed to file a form with a justice of the peace outlining exactly what had been taken from the couple's home. She said that, too, amounted to a Charter breach.