SUVs’ civil-forfeiture auction raises concerns

    1 of 1 2 of 1

      On Tuesday (August 5), the gavel came down in the auction of the first two vehicles seized under the B.C. Civil Forfeitures Act.

      According to the civil forfeiture office’s executive director, Rob Kroeker, the high bids are in and the provincial government is now waiting to close the deals.

      On the auction block were a chrome-laden 2003 Hummer H2 with Lamborghini-style hydraulic doors and custom audio system, and a 2002 GMC Denali with chrome spinner wheels. According to a July 25 media release from the Ministry of Public Safety and Solicitor General, the vehicles were “alleged to have been used to deliver drugs on Vancouver Island”.

      Although the auction has ended, some lawyers and civil-rights groups remain concerned about the Civil Forfeiture Act and the powers it gives the province.

      “We launched a Civil Forfeiture Act on the basis that the vehicles were used for drug dealing,” Kroeker told the Straight in a telephone interview. He explained that the vehicles were seized in March 2007, negotiations were held between the civil forfeitures office and the owner of the two vehicles, and the owner agreed to turn over the property in question to the province.

      But no criminal charges were ever laid in relation to the vehicles.

      According to Kroeker, the police department that seized the vehicles decided that it did not have sufficient evidence to recommend to Crown counsel that criminal charges be laid. And so the case was recommended to the forfeiture office to proceed in civil court.

      While a criminal court’s standard of proof is beyond a reasonable doubt, a civil court’s is a balance of probabilities. According to some lawyers and the B.C. Civil Liberties Association’s policy director, Michael Vonn, this distinction and the power it gives authorities is a cause for concern.

      Vonn explained that, under the federal Controlled Drugs and Substances Act, provisions do exist in the Criminal code for property forfeiture. But under that act, a criminal conviction is required before property forfeiture can take place. With civil forfeiture, Vonn continued, “the government can go after property with an allegation of some kind of offence...and the accusation is merely proved on a balance of probabilities.”

      Vonn maintained that there was no question that a balance of probabilities is an easier case for a prosecutor to make than proving guilt beyond a reasonable doubt.

      “That is what civil forfeiture does,” Vonn said, “lower the standard of what the state has to prove to seize your property.”

      Kroeker noted that his office cannot seize any property itself. “We can only make an application to a supreme court,” he said. “And we have to do that based on evidence.”

      The onus is still on the civil forfeiture office to lay out evidence, make a case, and prove that property was acquired illegally or used in an act that could have caused serious bodily harm, Kroeker explained. Only then does the burden shift to the defendant.

      “We can’t just come up to you and say, ”˜How’d you get that house?’” he added.

      Greg DelBigio is a criminal defence lawyer who practices in Vancouver and has defended clients in cases that involved the Civil Forfeiture Act.

      DelBigio argued that the act creates the potential for a police department to decide where it wants to direct a case.

      “So they might say, ”˜Look, we’re not going to worry about a charge. But we know that the civil-forfeiture rules are very powerful, and we have a very good chance at getting the money forfeited if we refer it there, so that’s what we’ll do,’” DelBigio said. “It is a concern with respect to the use of police discretion in law-enforcement matters.”

      Kroeker denied that police have any choice in deciding where a case will proceed. “The police will refer a file to us, and our protocol is that they must first have considered criminal forfeiture,” he said. A case will only be referred to the civil forfeiture office if Crown counsel decides that there is insufficient evidence for criminal charges or if police decide that there is insufficient evidence to refer a case to Crown counsel, as in the case of the two SUVs.

      “And then we’ll do the same thing [as Crown counsel],” Kroeker said. “We’ll look at the evidence and the public interest and whether it is appropriate for civil-forfeiture action.”

      Kroeker said that an important distinction between criminal and civil proceedings is that in the latter, you do not need to prove that a specific person committed any crime; the focus is instead on the property.

      “We have to prove an unlawful act; we just don’t have to prove a particular person did it,” he said.

      Comments