Province appealing on
whether Dodge Ram was
an ‘instrument of crime’
JEREMY HAINSWORTH
British Columbia has lost
another legal battle in its attempts
to have a nine-year-old truck forfeited, that it previously seized in
a marijuana prosecution.
A B.C. Supreme Court judge
ruled against the province earlier
this year in an application under
the Civil Forfeiture Act for the
2003 Dodge Ram. More recently,
another judge concluded the
province cannot recover $6,000
in storage fees for the truck,
which it seized more than six
years ago.
“The director chose to seize the
truck with full knowledge that the
court might, at some future point,
deny the application for forfeiture. Having failed to obtain an
order for forfeiture, the responsibility for the expenses remains
with the director,” said Justice
Malcolm Macaulay in British Columbia (Director of Civil Forfeiture) v. Wolff, 2012 BCSC 501.
The situation arose after
retired fire captain Frank Wolff
pleaded guilty to possession of
marijuana for the purpose of traf-
ficking in June 2007, and was
given a conditional discharge.
The problem here is
the act is overly broad
and direly lacking in
due protections.
“
Vonn
Micheal Vonn,
B.C. Civil Liberties Association
claimed there is an annual “social
cost” of $140 million in B.C. due
to marijuana use.
Forfeiture of the truck would
ensure it is never used again for
marijuana trafficking, the province suggested.
“Even if I order the truck for-
feited, there is nothing stopping
Mr. Wolff from borrowing or
renting a vehicle should he
choose to engage in similar activ-
ities in the future,” said Justice
Metzger. The judge also did not
accept the director’s contention
that the Act permitted forfeiture
of “instruments of crime” to com-
pensate private individuals and
public institutions for the costs of
past illegal activities.
“I can tell you that with more
than 350 civil forfeiture cases con-
cluded, the CFA has been subject
to very few adverse rulings,” said
Kroeker. “Our six-year-old civil
forfeiture program just completed
a record year, with the value of
concluded cases during 2011-12 at
$10.8 million— more than double
the $4.8 million in the previous
year. This success reflects strong
legislation that we have amended
in innovative ways and in response
to legal opinions and court deci-
sions over the years.”
B.C. Civil Liberties Associa-
tion policy director Micheal Vonn
said the issue is one of tactical
seizures by the province, when
proceeds of crime issues are
already addressed in the Crim-
inal Code.
Vonn called the Wolff proceeding “massively and grotesquely disproportionate,” and
the kind of issue the legal system
should go after.
“The problem here is the act is
overly broad and direly lacking in
due protections.”
Vonn said British Columbians
have been told the proceeds of
civil forfeitures are being put
into community crime preven-
tion. “We’re not seeing that data,”
she said. n
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Criminal intent needed to deny payout of funds
CRA
Continued From Page 1
General to request a forfeiture of
the funds.
Dhingra’s lawyer, Eric Wolf-
man, questioned the govern-
ment’s motives in trying to seize
the $51,000. “If it’s really about
the money, why didn’t they go
after it before, when the lower
court ruled against my client?”
asked Wolfman, of Oster Wolf-
man in Toronto. “Does the char-
acter of the proceeds change
depending on who wins?”
He added: “I’m disappointed
that the Attorney General appears
to be persecuting someone who
was mentally ill.”
Brendan Crawley, a spokes-
man for the Ministry of the
Attorney General, said civil rem-
edies applications are made “to
assist victims and prevent
unlawful activities that lead to
victimization.”
Wolfman is one of numerous
critics of the Civil Remedies Act
(CRA) who believe it defines a
crime too broadly, despite a
Supreme Court of Canada deci-
sion (Chatterjee v. A.G. Ontario
2009 SCC 19) that upheld it.
Because the [CRA]
is so broad, there
appears to be a strong
argument to grant
forfeiture. It will
turn on whether
that would be in the
interests of justice.
“
James Diamond,
Levine Sherkin Boussidan
Diamond
Knutsen
Under the CRA, property can be
seized even if no one has been
charged with an offence.
Furthermore, as in Dhingra, “a
person…found not criminally
responsible on account of mental disorder in respect of an
offence is proof that the person
committed the offence,” the Act
states.
Maintaining that CRA was
intended to be used primarily in
fighting drug-related crime,
Wolfman said he will argue that
the life insurance payout is not
“proceeds of unlawful activity”
under the legislation. He sug-
gested that it would not be “in
the interests of justice” as
required in the Act, for the prov-
ince to obtain the money.
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