# Unexplained Wealth Orders (UWOs)



## james4beach (Nov 15, 2012)

'An incredibly troubling notion': Drastic new tool to fight money laundering alarms civil rights advocates

Apparently BC already has civil forfeiture, allowing the province to seize a person's assets without a conviction, charge, or even an arrest. Recent reports into money laundering in BC came up with a further recommendation:



> Together, the reports make dozens of suggestions for tackling the issue, but civil liberties advocates were alarmed to see something called unexplained wealth orders (UWOs) among the recommendations.
> 
> These orders go a step beyond civil forfeiture and "allow confiscation without finding the crime," an expert panel led by criminal law expert Maureen Maloney wrote in its report, released Thursday.
> 
> "I think it's an incredibly troubling notion," said Micheal Vonn, policy director of the B.C. Civil Liberties Association.


I think a good warning case is asset forfeiture in the US, which is frequently abused by police. I'd hate to see Canada go down the same road. To get a taste of how out of hand forfeiture in the US has gotten, see this 2014 article that describes the dangers of carrying cash in the US (because police will steal it)

American shakedown: Police won't charge you, but they'll grab your money


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## MrMatt (Dec 21, 2011)

james4beach said:


> 'An incredibly troubling notion': Drastic new tool to fight money laundering alarms civil rights advocates
> 
> Apparently BC already has civil forfeiture, allowing the province to seize a person's assets without a conviction, charge, or even an arrest. Recent reports into money laundering in BC came up with a further recommendation:
> 
> ...


This has been going on for years in Canada, though not as bad.

The premise is simple, they seize all your assets. 
Then you have to fight the government in court, and prove your innocence, without a lawyer (because you can't pay them).

This is why criminal law we have the presumption of innocence and the right to a lawyer. Civil courts don't have those protections.


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## kcowan (Jul 1, 2010)

I suspect that such a law will only affect Canadians who have had a habit of hiding the proceeds of gambling or speculations such a real estate flipping. In the US or Mexico, I would never carry a large amount of cash. As long ago as the 70s, many Americans would drive around Arkansas on the way from Florida to Texas because local police liked taking nice cars from innocent people.


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## OhGreatGuru (May 24, 2009)

1. The article is deliberately confusing the standards of evidence for criminal offences with those of civil offences.

2. I agree there is potential for it to be abused. But that's why we have legislatures to frame laws; and judiciaries to oversee their application.

3. I think there are precedents in other areas. eg.
a) If you come into the country with over $10K without declaring it, Customs can level various penalties, including seizure of the total amount. To get it back you would have to take it to court - they don't have to convict you of a criminal offence;

b) Financial institutions can freeze foreign transfers over certain amounts unless you give them a satisfactory explanation for the source. (Really, it's an explanation that would satisfy FINTRAC). I would guess that if you can't give them one, FINTRAC (or the government) eventually gets to keep the money, unless you successfully sue them to get it back.

c) Even if you declare it at the border, it likely gets reported to FINTRAC, who may later conduct an examination into what the source of this money was. If they are not satisfied, they can levy heavy administrative penalties. This is an administrative, not a court process. I don't know what the rights of appeal are.


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## james4beach (Nov 15, 2012)

kcowan said:


> I suspect that such a law will only affect Canadians who have had a habit of hiding the proceeds of gambling or speculations such a real estate flipping. In the US or Mexico, I would never carry a large amount of cash. As long ago as the 70s, many Americans would drive around Arkansas on the way from Florida to Texas because local police liked taking nice cars from innocent people.


Wow, I didn't know it went back to the 70s. Very interesting!

Obviously there are people doing illegal things who will have large amounts of cash, but innocent people also have lots of cash. What bothers me is the assumption that someone is up to no good if they have lots of cash or a nice property. Let's say someone has a nice car, or a nice real estate property, but the person themselves doesn't "look like a rich person".

There should be a presumption of innocence in society and it rubs me the wrong way that authorities would look with suspicion at a person's assets, just if they don't seem like they "should" be wealthy.


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## kcowan (Jul 1, 2010)

james4beach said:


> There should be a presumption of innocence in society and it rubs me the wrong way that authorities would look with suspicion at a person's assets, just if they don't seem like they "should" be wealthy.


It is ironic that now people who appear to have it all are guilty for renting money from banks to pay for it all! The guy with a 10yo car probably has kept his money. I only bought 2 new cars, a Volvo when I graduated, and one from a leasing company that was a couple of grand cheaper than from the dealer who delivered it.


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## Eclectic12 (Oct 20, 2010)

james4beach said:


> ... Apparently BC already has civil forfeiture, allowing the province to seize a person's assets without a conviction, charge, or even an arrest ...
> I'd hate to see Canada go down the same road. To get a taste of how out of hand forfeiture in the US has gotten, see this 2014 article that describes the dangers of carrying cash in the US (because police will steal it) ...


Civil forfeiture has been in Canada since about 2003. 

Examples of what seem to be abuses include:
- a man in Saskatchewan sold $60 worth of Oxycontin he legally owned to buy gas so he could drive to work. The government took away his $7,500 truck
- an Ontario couple saw their $400,000 12-unit apartment building seized because some renters were involved in illegal activities
- Alberta assumes if police find $10,000 or more in cash during an investigation, the money was illegally acquired. 
- New Brunswick makes it explicit you can still lose your property even if you're acquitted criminally
- a BC man had to have B.C.'s Supreme Court and Court of Appeal eventually ruled his rights were violated after a police search without a warrant that produced no criminal charges meant British Columbia's Civil Forfeiture Office wanted to seize his modest two-bedroom bungalow.

Like the US, money from such proceedings goes to provincial governments and police services with little accountability or transparency. BC is reported at one point to have confiscated $41 million with only $1.5 million going to victims. Ontario says they distributed $21 million over several years but in a single year they seized $22 million. One police board in Ontario, Peel region, used seized money to buy tens of thousands of dollars in tickets to mayoral galas.

Part of what stacks the deck against civil forfeiture defendants is that unlike a criminal defendant, they don't qualify for legal aid.


https://www.thestar.com/news/canada...ften-a-provincial-cash-grab-report-finds.html
https://www.nationalobserver.com/20...il-forfeiture-program-called-unconstitutional


Cheers


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## Eclectic12 (Oct 20, 2010)

kcowan said:


> I suspect that such a law will only affect Canadians who have had a habit of hiding the proceeds of gambling or speculations such a real estate flipping ...


There seem to be many examples that contradict this idea.

https://torontosun.com/news/local-n...t-in-forfieture-battle-over-rental-properties

In 2007. Police showed up at David Lloydsmith’s house. They entered without a warrant, found a couple of pot plants, and despite no charges being laid, the civil forfeiture office sued to seize his home in 2011 — *four years after the initial RCMP raid. In 2015, eight years after the initial raid*, the B.C. Supreme Court ruled that his rights were violated. 
https://www.andrewweavermla.ca/2019/03/28/bill-11-civil-forfeiture-amendment-act-2019/


Patricia Thomson, a 75-year-old Calgary great-grandmother and dental office manager had her condo “restrained”, on the allegation that Thomson’s son and his accomplices had listed Thomson’s home address as the corporate registered office and the bank mailing address in the course of perpetrating an online fraud, receiving funds for the sale of non-existent vintage cars. Because Alberta’s act requires that the courts grant all such “restraining” orders ex parte—without consulting the affected party— *Thomson couldn’t even attend the restraint hearing to plead her innocence*.

Thomson, who swore an affidavit insisting she had no knowledge of the scheme, had to go to court to fight to keep her home.
https://albertaviews.ca/presumed-guilty/


Valentin Chygyrynskyy while intoxicated, ran his 25-foot sailboat into another vessel. He fell overboard into Lake Ontario and had to be fished out by a passing patrol boat. His blood alcohol was well above the lawful limit and he faced charges of impaired operation of a vessel. *The civil remedies division of the Attorney General decided that this was an appropriate case for civil forfeiture.*
https://www.advocatedaily.com/a-g--ontario-v--kittiwake-sailboat-civil-forfeiture-hits-a-reef.html


Jason Dery, was caught speeding on a quiet Vancouver Island road on a motorcycle. The Civil Forfeiture Office of BC argued the Motor Vehicle Act offence made the Ducati motorcycle – valued at anywhere between $7,400 and $14,000 – an instrument of unlawful activity. A B.C. Supreme Court judge disagreed and ruled in Mr. Dery's favour.
Why should it have to go to the Supreme Court for speeding?


Cheers


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## Eclectic12 (Oct 20, 2010)

OhGreatGuru said:


> ... 2. I agree there is potential for it to be abused. But that's why we have legislatures to frame laws; and judiciaries to oversee their application.


What's fair about a raid that results in no charges and then four years later, having the Civil Forfeiture Office try to take your house?

Or not being allowed to plead your innocence at a restraint hearing that affects your condo?

Or where 90+% of the tenants for a multiple unit rental is being paid by the provincial gov't yet the justification for seizing your building is that some tenants might have paid rent using drug money?


Cheers


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## james4beach (Nov 15, 2012)

Thanks for posting these examples, Eclectic12. I agree that it's troubling.


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## kcowan (Jul 1, 2010)

james4beach said:


> Thanks for posting these examples, Eclectic12. I agree that it's troubling.


Yes thanks Eclectic12 for helping to eradicate our ignorance on the subject. It seems that fairness has no role to play in civil forfeiture.

I am starting to think that the so-called crazies who have enough firepower to hold off the government when they come to get them may not be so crazy after all!

Surely there must be some potential for a class action suit against all such governments? I suppose there are too many of them.


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## Rusty O'Toole (Feb 1, 2012)

Government is the enemy of every decent honest hard working citizen and the friend of every grafter pimp chiseler and bum. I thought everyone knew that.


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## Eclectic12 (Oct 20, 2010)

kcowan said:


> Yes thanks Eclectic12 for helping to eradicate our ignorance on the subject. It seems that fairness has no role to play in civil forfeiture ...


I'm sure some criminals have had their property seized. There also have been those where the seizure is questionable who have had their property returned. The challenge seems to be that the low threshold and insistence by the PTB to keep doing the course despite any evidence that it might be an abuse instead of going after criminals. With those in the chain getting a cut of the assets, there is incentive to ignore what seems more reasonable.

One can argue that the system "worked" because eventually the BC Supreme Court ruled in David Lloydsmith's favour. One fo the problems I see with it is that if the BC gov't really thought he was a criminal who should have had a civil seizure applied to his house - why wait four years after the initial search?


The other concern is with so much of the proceeds goes into the civil forfeiture system and supporting allies instead of the stated purpose ... assisting those affected by the crime. I can understand that some would go to the system but IIRC, the latest numbers were something like $73 million being collected with less than half ($31 million) going to the stated aim of crime prevention grants and compensation to eligible victims. 




kcowan said:


> ... Surely there must be some potential for a class action suit against all such governments? I suppose there are too many of them.


Trouble is the gov't can write into the legislation all sorts of protections.

I can recall when the Ontario gov't was proclaiming how they were all about improving education with class sizes being constantly talked about. Trouble was that legislation being referred to that was available for download online made no mention of class sized - just whether the school board was operating at a loss or not. There were several questionable parts that made it clear that education was not the priority. One was that if a tax payer didn't like the decisions made by the office that took over the in the red school board - the mandated recourse was to appeal to the office that made the decision. Courts were specifically barred from reviewing/commenting on the decisions made.


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## Mukhang pera (Feb 26, 2016)

Eclectic12 said:


> One can argue that the system "worked" because eventually the BC Supreme Court ruled in David Lloydsmith's favour.
> 
> Trouble is the gov't can write into the legislation all sorts of protections.


Interesting comment about LLoydsmith. Was he finally vindicated in court?

I aware of only 2 decisions of the BC courts in his case. 

The first one (not in date order) is this:

PRACTICE — Trial — Severance of issues • Appeals — Jurisdiction of court • PUBLIC AUTHORITIES — Director of Civil Forfeiture — In action under Civil Forfeiture Act, judge ordering Charter issues raised by defendant to be severed and heard prior to other issues — Plaintiff’s appeal dismissed, there being no reason to interfere with judge’s management of trial process — Appeal regarding order as to timing of discoveries quashed since that order was not appealable until after completion of trial.

_British Columbia (Director of Civil Forfeiture) _v. _Lloydsmith_ C.A., Saunders, Neilson & Bennett JJ.A., 2014 BCCA 72, Vancouver CA040891, CA040896, February 21, 2014 (oral), 15pp.

https://www.courts.gov.bc.ca/jdb-txt/CA/14/00/2014BCCA0072cor3.htm

PRACTICE — Appeals — Intervenors • Plaintiff Director of Civil Forfeiture using evidence of marijuana grow operation found by police to commence civil forfeiture proceedings — Chambers judge bifurcating hearing to first consider s. 8 Charter breach and potential s. 24 Charter remedies before addressing in rem remedy — On Director’s appeal from decision to bifurcate, B.C. Civil Liberties Association ["CLA"] applying for intervenor status, arguing the appeal concerned the process by which courts should adjudicate admissibility within civil forfeiture proceedings of evidence derived from Charter violations committed in criminal investigations — Court granting leave, finding CLA met the required criteria and would provide a different perspective on the issues from those of the parties — CLA permitted to file 10-page factum, with issue of its oral submissions left to hearing panel.

_British Columbia (Director of Civil Forfeiture)_ v. _Lloydsmith_ C.A., A. MacKenzie J.A., 2013 BCCA 516, Vancouver CA040891, CA040896, October 31, 2013 (oral), 9pp.

https://www.courts.gov.bc.ca/jdb-txt/CA/13/05/2013BCCA0516.htm

All I can take from those decisions is that the trial judge decided was there there was a triable issue concerning a s. 8 Charter breach and that the Charter issue should be severed and determined before the main action. There was no Charter ruling. The second of the above decisions does no more than decide who gets intervenor status. There was no resounding victory as the press would have one believe.

If my resources are defective (or my use of those resources defective and I missed something), maybe someone here can tell me. I am supposed to know this stuff. So should there be a related, final judgment I missed, I would be grateful for the appropriate url, or citation if not online. For now, I'll just chalk it up to more fake news.

I think I'll do the same with Eclectic's expose of civil forfeiture abuses upthread that would appear to be derived from press musings. No disrespect at all to Eclectic, since the point is worthy of consideration and what else do most of us have to rely upon? But I find such reporting useless with no reference to source material. The validity of the 5 examples cited are, in my view, seriously undermined by no reference to such materials. Why not provide what is needed to get at the judgments themselves, or whatever else is being relied upon. In the Lloydsmith case, it was described thus:

-_ a BC man had to have B.C.'s Supreme Court and Court of Appeal eventually ruled his rights were violated after a police search without a warrant that produced no criminal charges meant British Columbia's Civil Forfeiture Office wanted to seize his modest two-bedroom bungalow.
_

That is plainly false if the judgments I have cited are the source material. As I say, maybe I missed the main event. Someone please help, in that case.

The "Star" article to which we are referred contains a good measure of what I hope is fake news. It refers to a "report", saying, in part:

_The two organizations that crafted the report listed a number of recommendations, including:

Forfeiture should be available only when a property owner has been convicted of a provincial offence.

Judges should have discretion to craft proportionate forfeiture orders.

Civil forfeiture should be available only for property used or acquired by an owner convicted of a corresponding provincial offence where an identifiable victim was harmed.
_

In BC, judges already have the prayed for discretion.

Let's look at the rest for a moment. Quite alarming. We are told that forfeiture should be permitted on conviction for a _provincial_ offence. Could anyone really mean that? The criminal law power is a federal power. It dwells in the Criminal Code, the Controlled Drugs and Substances Act, the Youth Criminal Justice Act, to name a few. Convictions under those federal statutes are criminal convictions. Provinces may pass laws creating regulatory offences. They may not create crimes. Provincial motor vehicle legislation is an example with which most are familiar. If the Star is right, the report authors are recommending that civil forfeiture machinery be available to be invoked if one uses one's motor vehicle to make an illegal left turn. Or maybe your land will be up for forfeiture if you build a deck without a permit, in violation of a bylaw passed by a local government. 

I would argue that if the Star report writers have their way (as expressed in the article), then use of civil forfeiture for municipal bylaw contraventions is not so far-fetched as it would seem. In BC, the provincial Offence Act applies to bylaw prosecutions (my authority for so saying would include, inter alia R. v. Shaw, 2010 BCSC 1565 (https://www.courts.gov.bc.ca/jdb-txt/SC/10/15/2010BCSC1565.htm) and R. v. 0715475 B.C. Ltd., 2008 BCSC 581 (https://www.courts.gov.bc.ca/Jdb-txt/SC/08/05/2008BCSC0581.htm). 

I agree completely with the proposition that civil forfeiture laws are dangerous, inimical to the welfare of the populace. But this would appear to be what people want. Canada has long been a police state (albeit a benign police state), and Canadians have become enured to increasing levels of abuse. We get the government we deserve, do we not?



Eclectic12 said:


> Trouble is the gov't can write into the legislation all sorts of protections.


Troublesome indeed. Governments have the ability to pass legislation authorizing the most outrageous conduct. And they may do so without constitutional amendment in the case of trenching on personal and real property rights, which were deliberately placed beyond the reach of the Charter of Rights and Freedoms.


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## MrMatt (Dec 21, 2011)

The reason they're going civil is because you don't have the protections you have with a criminal charge.

They don't have to prove your guilt to the criminal standard.
You don't even have to break a law.

You don't get a lawyer, and if they seize your assets you can't hire one.


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## Spudd (Oct 11, 2011)

MP, according to this G&M article: https://www.aqaad.com/documents-publiques/bc_forfeiture_office_abandons_plans_to_seize_house.pdf the government abandoned the case rather than continuing to trial. Perhaps that is why there's no completed case you can search?


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## Mukhang pera (Feb 26, 2016)

Thank you Spudd. That definitely explains it.

That is what I expected. It never went to a final judgment. So no victory pronounced for either combatant. A LOT of cases end up that way, for a variety of reasons. Many cases get started, there will be a few issued decisions on that lawyers call_ interlocutory_ matters, then the matter drops from sight. Or a trial judgment comes out and one sees some interlocutory ruling that indicates that an appeal was filed. But appeals are expensive and many get dropped. But there is no formal reporting of matters that are simply not pursued.

From the Crown's perspective, the Lloydsmith case looked like a loser and a likely source of continuing bad press, so hardly surprising the Crown abandoned ship.


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## Eclectic12 (Oct 20, 2010)

Mukhang pera said:


> Interesting comment about LLoydsmith. Was he finally vindicated in court?
> I aware of only 2 decisions of the BC courts in his case ...


I'm not familiar with how to search and how's /why's of what may or may not be recorded.

This 2014 article talks about the BC Civil Liberties Association being involved on his behalf for a civil forfeiture hearing at the B.C. Court of Appeal. It refers to a B.C. Supreme Court judge having earlier ruled the police search violated Mr. Lloydsmith’s Charter rights.

https://bccla.org/2014/02/lawyer-questions-how-b-c-forfeiture-office-decides-what-cases-to-pursue/

Then later it is stated that the office decided to discontinue the proceedings instead of fighting the case in the lower level BC Supreme Count. 

One wonders if the press at the time plus the BC Civil Liberties association getting involved influenced the decision in some way. While the BC Justice Minister said it was working as intended, apparently three B.C. Liberal caucus members, the Official Opposition, and both a former solicitor-general and a former attorney-general were all calling for review.

Interestingly, the RCMP officer involved in the initial interaction is said to have written in a report that the offence was "minor".


Maybe there is a court decision for 72 year old pensioner William Pundick?
https://www.theglobeandmail.com/new...-civil-forfeiture-under-fire/article16566247/
http://www.vancouversun.com/news/mu...erests+justice+court+rules/8709296/story.html

Maybe some of the details will help in finding the relevant case details.




Mukhang pera said:


> ... Why not provide what is needed to get at the judgments themselves, or whatever else is being relied upon.


You'd have to ask the reporters, editors, new organisations as well as the lawyers being quoted.

I suspect most readers wouldn't dig into what's recorded in the court cases and certainly the ones I have read for other CMF threads aren't all that easy to follow.




Mukhang pera said:


> ... I agree completely with the proposition that civil forfeiture laws are dangerous, inimical to the welfare of the populace. But this would appear to be what people want.


When people hear of Hells Angels clubhouses etc. being seized, I suspect people are happy and think it is appropriate. Some of the other cases look suspect.




MrMatt said:


> The reason they're going civil is because you don't have the protections you have with a criminal charge.
> 
> They don't have to prove your guilt to the criminal standard.
> You don't even have to break a law.
> ...


And if enough of your assets are seized so that you can't afford a lawyer, you also can't use gov't funded lawyers either.

Makes it harder on criminals but where there are abuses, it makes it harder on those swept up in the same, lax criteria.

If the reported numbers are true where less than half is going to those involved in the seizures, there seems little incentive to sort out the criminals the law is aimed at and others that were swept in the wider net.


Cheers


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## Eclectic12 (Oct 20, 2010)

Mukhang pera said:


> Thank you Spudd. That definitely explains it ...
> From the Crown's perspective, Lloydsmith looked like a loser and a likely source of continuing bad press, so hardly surprising the Crown abandoned ship.


Doesn't change that if Lloydsmith was the criminal element the civil forfeiture law was aimed at - why wait years to crimp his "criminal" enterprise?
If the original officer wrote in his report that the offense was minor - how is the attempted civil seizure anything but a cash grab?


Cheers


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## Mukhang pera (Feb 26, 2016)

Eclectic12 said:


> You'd have to ask the reporters, editors, new organisations as well as the lawyers being quoted.
> 
> I suspect most readers wouldn't dig into what's recorded in the court cases and certainly the ones I have read for other CMF threads aren't all that easy to follow.


My comment about not citing source material was not aimed at you, in case you took it that way. But, the press in reporting these things, read in what they think should be read in, such as saying the court found a Charter breach in the Lloydsmith case, when that never happened at all. Very misleading.

Of course, you are right that few readers will look into the background, even when background material is made available.



Eclectic12 said:


> When people hear of Hells Angels clubhouses etc. being seized, I suspect people are happy and think it is appropriate. Some of the other cases look suspect.


Too bad that the public is not told that there were never any criminal charges in the Hells Angels [HA] case. Those were abandoned, but the province has been trying since 2013 to seize 3 clubhouses. There have been many court hearings (I can add them all up, if you like), including at least one in the Supreme Court of Canada. The cost so far to BC taxpayers I am sure well exceeds any value in the real estate sought to be seized.

The latest salvo in the HA case was fired just recently in _British Columbia (Director of Civil Forfeiture)_ v. _Angel Acres Recreation and Festival Property Ltd_., 2019 BCSC 275

The judgment runs to 120 pages, but the Reader’s Digest version looks like this:

CRIMINAL LAW - Evidence - Expert evidence - Plaintiff Director of Civil Forfeiture bringing action seeking forfeiture of 3 Hells Angels [“HA”] Motorcycle Club clubhouses - Director seeking to have a retired former detective staff sergeant of the Ontario Provincial Police give expert evidence as to the nature and characteristics of the HA, and the culture, values, activities and practices of the HA and, in particular, the role of the chapter clubhouse - Trial judge finding much of the expert’s 2 written opinions inadmissible, particularly at the gatekeeping stage - Order accordingly.

The full text may be found here:

https://www.courts.gov.bc.ca/jdb-txt/sc/19/02/2019BCSC0275.htm

Lead counsel for the HA is a law school colleague and a very bright guy. Given the discussion here, I called his office this morning to discuss the judgment and progress of the matter, but he’s away from his office until next month, so I was told. I also wanted to ask him if he has a transcript of the _R._ v. _Murray and Pundick _case mentioned by Eclectic, since it does not seem to be in my own database, which largely mirrors that the the BC Law Courts, plus some CanLii and other material, and neither of those sources seems to have it. It may have been an oral judgment never transcribed.


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## sags (May 15, 2010)

Angel Acres Recreation and Festival Property Ltd............LOL


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## Mukhang pera (Feb 26, 2016)

Eclectic12 said:


> Doesn't change that if Lloydsmith was the criminal element the civil forfeiture law was aimed at - why wait years to crimp his "criminal" enterprise?
> If the original officer wrote in his report that the offense was minor - how is the attempted civil seizure anything but a cash grab?
> 
> Cheers


Sorry, Eclectic, I am not sure I am taking your point. I am in no way sticking up for the Crown. Spudd made clear that the Crown dropped the matter, no doubt recognizing it could not win and would look bad for trying. No doubt it was a cash grab.

A forfeiture power has existed at the federal level, under the Criminal Code, since 1989. In my view, the power, should it exist at all, should stay there. There should be a requirement for a criminal conviction, proof to the criminal standard of beyond a reasonable doubt, etc. To vest a forfeiture power at the provincial level, in "civil" proceedings, with proof on a balance of probabilities, opens the door to abuse. As has been pointed out, defending such a claim can cost an innocent person a fortune. Even if the Crown loses and is ordered to pay costs, those costs won't amount to anything close what was actually paid out in defending the claim, unless the court makes an order for "special costs" or "solicitor client costs".

An older BC case that discusses the criminal law power is here:

https://www.courts.gov.bc.ca/jdb-txt/ca/98/07/c98-0741.txt

I chose that case simply because the judgment is only 9 pages and gives a bit of an overview. If anyone wants some more recent ones, just ask.


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## james4beach (Nov 15, 2012)

Mukhang pera, as you are the legal expert here, I'm curious what you think broadly about civil forfeiture practices in Canada. In general, do you think these are done fairly on good basis, abused by authorities, or is it uncertain?


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## Mukhang pera (Feb 26, 2016)

James,

I may have just answered your question, at least in part. I think, in general, a "civil" forfeiture regime is a bad idea.


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## james4beach (Nov 15, 2012)

Mukhang pera said:


> I may have just answered your question, at least in part. I think, in general, a "civil" forfeiture regime is a bad idea.


Thanks, I see it now



Mukhang pera said:


> There should be a requirement for a criminal conviction, *proof to the criminal standard of beyond a reasonable doubt*, etc. To vest a forfeiture power at the provincial level, in "civil" proceedings, with proof on a balance of probabilities, opens the door to abuse. As has been pointed out, defending such a claim can cost an innocent person a fortune.


Thanks, and I share this concern


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## Eclectic12 (Oct 20, 2010)

Mukhang pera said:


> My comment about not citing source material was not aimed at you, in case you took it that way ...


I didn't ... but thanks for clarifying.




Mukhang pera said:


> ... But, the press in reporting these things, read in what they think should be read in, such as saying the court found a Charter breach in the Lloydsmith case, when that never happened at all. Very misleading.
> 
> Of course, you are right that few readers will look into the background, even when background material is made available ...


It's why at times I skip including too many references. 

If they ask then there is a higher chance there is motive to read the link.
Or at least that's what I prefer to tell myself instead of saying I am lazy. :rolleyes2:




Mukhang pera said:


> ... Too bad that the public is not told that there were never any criminal charges in the Hells Angels [HA] case. Those were abandoned, but the province has been trying since 2013 to seize 3 clubhouses ...


I'll have to check out the BC HA case saga.

In Welland ON, the HA club house was seized where the HA lost their appeal.
https://www.stcatharinesstandard.ca...els-lose-bid-to-keep-niagara-clubhouse-again/

Other clubs have lost their clubhouse as well.
https://www.thespec.com/news-story/8034888-black-pistons-biker-clubhouse-seized/




Mukhang pera said:


> ... I also wanted to ask him if he has a transcript of the _R._ v. _Murray and Pundick _case mentioned by Eclectic, since it does not seem to be in my own database, which largely mirrors that the the BC Law Courts, plus some CanLii and other material, and neither of those sources seems to have it. It may have been an oral judgment never transcribed.


That would be cool if you could dig it up.

Thanks for your links and efforts ... it makes it easier to follow what the press has used broad strokes for.


Cheers


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## Mukhang pera (Feb 26, 2016)

My dad used to use the expression "Don't get caught with your pants down." This civil forfeiture case tells us why.

British Columbia (Director of Civil Forfeiture) v. Armani Limousine Inc., 2018 BCSC 2364

PUBLIC AUTHORITIES — Director of Civil Forfeiture — Interim preservation orders • Vancouver police attending a call concerning a possible sexual assault and unlawful confinement occurring in a parked limousine — Police finding the limousine driver, B., with a woman in the back and with his pants partially down — Police noting the woman to be heavily impaired, perhaps by drugs, and passed out or nearly so, and unable to consent to sexual contact — Police arresting and charging B. — Director of Civil Forfeiture applying for an interim preservation order, specifically possession and safekeeping of the limousine owned by a company controlled by the defendant B. and his wife — Court granting that order, pursuant to the Civil Forfeiture Act, s. 8(1).

https://www.courts.gov.bc.ca/jdb-txt/sc/18/23/2018BCSC2364.htm

I would guess B. had some explaining to do to his wife.


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## kcowan (Jul 1, 2010)

I don't get how this circumstantial situation would lead to forfeiture? The guy might be guilty but why forfeiture? Isn't he in enough trouble with his wife?


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## Mukhang pera (Feb 26, 2016)

The rationale is set out at para. 2 of the judgment:

_On October 9, 2018, the Director commenced an action under the Act seeking forfeiture of the Vehicle as an instrument of unlawful activity, namely, sexual assault, but also forcible confinement, possession of cocaine, driving without a chauffeur's permit, driving without an appropriate licence, contrary to the Passenger Transportation Act, S.B.C. 2004, c. 39, and failing to declare a taxable income. For the purposes of this application, the Director relies only upon the allegations of sexual assault and forcible confinement relating to Mr. Bassarpuri’s recent arrest_....

It is that type of thinking that makes provincial forfeiture laws dangerous. If you own a valuable asset, if it can even be seen remotely as an "instrument of unlawful activity", it is at risk. At least the guy did not take her to a house he owned.


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## MrMatt (Dec 21, 2011)

Seizing to preserve evidence isn't civil forfeiture. It's a normal part of a trial.

Civil forfeiture is when they take the assets and keep them. I don't have a problem if they are clearly proceeds of crime, but they should have to first convict the offender of the crime.
My problem is when they don't actually find the "offender" guilty of any crime, but seize the assets anyway.


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## Mukhang pera (Feb 26, 2016)

MrMatt,

If you are suggesting that what the Director of _Civil_ Forfeiture is doing in the limo case has anything to do with preserving evidence for a _criminal _trial, I respectfully disagree that there is anything _normal_ about it. 

In the case I cited, for the limo to be held as evidence to be used in a criminal trial, I would say it would have to be seized under warrant, then retention would be governed by s. 490 of the Criminal Code. Some idea of how it works (at least according to my understanding) may be gleaned from _R._ v. _Jahanrakhshan_, 2008 BCSC 1687. 

https://www.courts.gov.bc.ca/Jdb-txt/SC/08/16/2008BCSC1687.htm


I see no suggestion in the limo case that the Director is seeking to retain it for use in a criminal trial. The driver had not been charged as to the date of the judgment and might never be. What I take from the case is that the Director was seeking an interim preservation order, so that the limo would be available for forfeiture should the civil forfeiture action succeed. But that's just my take on it. The judgment is there to be read and interpreted by anyone.

I note you speak in very definite terms, so I have to take it that you are satisfied as to the correctness of what you are posting. Perhaps I am the one mistaken. Your knowledge of criminal and civil law of procedure, and the rules of evidence as applied to each, might be superior to my own. If you can cite some authority for your comments, that would be most welcome.


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## sags (May 15, 2010)

This is where the Federal government sells some of the assets they seize, along with government surplus.

https://www.gcsurplus.ca/mn-eng.cfm?snc=wfsav&vndsld=0

Interesting stuff somethings, like the pallet loads of Chinese goods in the "Jewelry" heading.

https://www.gcsurplus.ca/mn-eng.cfm...htype=&lci=&str=1&ltnf=1&frmsr=1&sf=ferm-clos


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## MrMatt (Dec 21, 2011)

Mukhang pera said:


> MrMatt,
> 
> If you are suggesting that what the Director of _Civil_ Forfeiture is doing in the limo case has anything to do with preserving evidence for a _criminal _trial, I respectfully disagree that there is anything _normal_ about it.
> 
> ...


No you're right, I misinterepreted it. (the interim order, however I see that in a criminal case it is different.)
Quite honestly I think this is a case of a stretch.

It really is a case of trying to get more of a penalty for a crime, without actually proving the crime to a criminal standard.
I have a conceptual problem with that.
Until convicted he's innocent, they should not be able to take property from an innocent person when no crime has been committed.

I find it scary that the government is attempting to punish crimes under civil law, which is basically "prove your innocence".


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## Mukhang pera (Feb 26, 2016)

MrMatt said:


> I find it scary that the government is attempting to punish crimes under civil law, which is basically "prove your innocence".


Totally agree!


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## 5Lgreenback (Mar 21, 2015)

With dangerous government power such as this, a simpleton like me would think it would be easy to tackle large organized crime. Guys living in 600K houses, riding around on 50k motorbikes and haven't had a job in the last 20 years, or ever. 

Of course, what we actually see is innocent, or at the very least quite plausibly innocent people being destroyed, and organized crime chugs a long as strong as ever, seemingly untouched. 

My suspicion is that if this were investigated further (why criminal higher ups aren't being taken down), the findings would be even more disturbing than these UFO powers already are.


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