In Hells Angels case, B.C. judge rules that province can't seize property based on likelihood of future illegal activity

    1 of 1 2 of 1

      For years, some B.C. journalists and a provincial legal group have been raising concerns about the province's civil-forfeiture rules.

      As far back as 2008, journalist Travis Lupick noted in the Straight that the government was seizing items on a lower standard than what's required in criminal court, where things must be proven beyond a reasonable doubt.

      With civil forfeiture, the government must merely demonstrate that on the balance of probabilities, it's justifiable taking someone's property.

      In 2014, Sunny Dhillon, then with the Globe and Mail, highlighted the shortcomings of administrative forfeiture programs in a series of articles.

      His monthlong investigation revealed that B.C. set targets for recoveries, unlike Ontario.

      Dhillon also pointed out that there's a reverse burden of proof—anyone whose property is seized must prove a negative, i.e. why it shouldn't be taken by the government.

      Under the law, the government has had the power to seize property even if a person suspected of using this for unlawful activity was acquitted in criminal court.

      The B.C. Civil Liberties Association has been one of the most vocal critics of the Civil Forfeiture Act. It's raised concerns on many occasions that the government can grab property after simply filing an allegation in B.C. Supreme Court

      This week, a B.C. Supreme Court judge struck down a section of the act after the director of civil forfeiture argued for the seizure of three properties because they will likely be used in the future (italics added) as instruments of unlawful activity.

      It concerned the Hells Angels clubhouses in East Vancouver, Nanaimo, and Kelowna.

      The defendants were Angel Acres Recreation, Festival Property Ltd., and a long list of Hells Angels.

      The director initially alleged that the Hells Angels is a worldwide criminal organization.

      However, that was modified in final submissions before the court.

      "When reference is made to the Hells Angels being a criminal organization, it should be taken as a short-ha[n]d reference to the primary purpose of the Hells Angels being to enable and empower its members to engage in serious crime for financial gain while minimizing the risk of detection by law enforcement and prosecution by the Crown," the director's legal counsel stated.

      The defendants maintained that this amended language "implicitly acknowledges that the Director has failed to adduce evidence capable of proving on a balance of probabilities that any member of any of the three chapters of the Hells Angels whose Clubhouses are in issue has participated in, committed, or instructed any offence for the benefit of, at the direction of, or in association with the Hells Angels as a criminal organization".

      Justice Barry Davies stated in his ruling that a key issue is not the basis upon which the director settled on in the Hells Angels' use of their clubhouses.

      "Rather, it is the constitutional validity of provisions that apply to all individuals who own property in British Columbia against whom a serious penalty can be imposed because that individual has in the past committed (or is alleged to have committed but has been acquitted of) a prior unlawful act or acts that engaged the use of property that is similar to property of which forfeiture is sought," Davies wrote.

      The judge acknowledged that that it's within the power of the B.C. legislature under the Constitution Act, 1867, to seize property based on past unlawful activity.

      However, Davies declared that the "future instrument of unlawful activity provisions of the Act are ultra vires the legislative power of the Province of British Columbia".

      Spokesperson describes Hells Angels as a "brotherhood"

      Davies's decision noted that Hells Angel Rick Ciarniello told the court that he became a member "because of the brotherhood that the club offered".

      "He testified that when he was a single parent he suffered a bad motorcycle accident in 1989 because of which he could not work," Davies wrote. "He said that during his recovery his chapter 'brothers' paid for all of his rent and groceries and never sought repayment. He testified that he had seen similar examples at play and that to him the Hells Angels are 'all about brotherhood'.

      "Although that evidence is self-serving to the extent that Mr. Ciarniello is a member of the Hells Angels and has often been a spokesperson for them, the Director did not seek to challenge that evidence on re-examination," Davies continued.

      Davies also questioned the director's assertion that a hierarchy exists between the Hells Angels and support clubs. 

      "Although the Director also submits that 'members of support clubs are therefore another potential source of criminal subordinates' he acknowledges that no evidence has been adduced of such use or potential use of any member of any support club by the Hells Angels in any criminal activity," Davies wrote. "The lack of any evidentiary foundation for the proposition advanced renders it speculative."

      No Hells Angels member in B.C. has been convicted of a "criminal-organization offence", though individual members have been convicted of serious crimes.

      Moreover, Davies concluded that the director did not prove his allegation that the president of the East End chapter, John Bryce, ordered an assault of Glen Louie in 2005.

      Former police informant Micheal Plante was one of the director's key witnesses. And he testified in detail about conversations regarding criminal activities that he overheard. 

      Plante also testified in the case that he was paid $500,000 in 2005 to testify against the Hells Angels, and he received another $500,000 in 2012 after all of his activities as an agent ended. Plante did not pay taxes on these funds. 

      The judge also determined that Plante's testimony could be considered reliable when audiotape evidence provided "independent contemporaneous confirmation".

      But the judge was less convinced of its reliability in connection with what was said inside the Hells Angels' East End base.

      "I must consider Mr. Plante’s testimony about the extent to which he says the Clubhouse was involved in illegal activity with great caution," Davies stated in his decision.