The Power of Perspectives

The Canadian Bar Association

Justin Ling

Before crime is committed

February 15 2016 15 February 2016

Civil forfeiture regimes across the country, generally speaking, do not require the government to prove the commission of a crime beyond a reasonable doubt.

The asset seizure system, in most provinces, requires the government to prove that, on the balance of probabilities, the possessions they’re looking to acquire were used in the commission of a crime, or bought with the proceeds of it. The owner of the property needs to prove their things innocent — which isn’t always an easy task.

But the Director of Civil Forfeiture in British Columbia has taken that a step further, moving to seize an assortment of property for crimes that haven’t even happened yet.

As part of a protracted fight to seize three Hells Angels clubhouses — hang-outs that police believe were used to organize drug-running and other criminal acts — the director has taken advantage of changes to the BC laws in order to aggressively go after the biker gang’s property.

The effort to seize the Hells Angels property has been going on for eight years, with no resolution. Various applications and appeals regarding disclosure, one of which even reach the Supreme Court, were mostly to blame for the delays.

Criminal proceedings against the bikers, based on search warrants conducted on the clubhouses, went nowhere. Even the civil proceedings seemed ill fated.

While the search of the clubhouses — in Vancouver, Nanaimo, and Kelowna — netted several restricted firearms, and established that the clubhouses were likely being used as unlicensed bars, the evidence that they were being used directly for the commission of a crime, or were bought with the proceeds of one, appeared scant.

Evidence submitted at trial from RCMP officers argued that the security at the clubhouses — things like surveillance cameras and reinforced doors — coupled with the gang’s reputation as a drug-trafficking organization is proof enough that they were used for nefarious deeds.

“A clubhouse also facilitates the commission of criminal activity by acting as a clear signal that the HA has ‘marked their turf.’ It allows a particular gang to attain, or attempt to attain, territorial control over criminal activity in an area by intimidating other gangs or other people that are involved in committing criminal activity,” argued one officer.

But the director eventually threw out much of those arguments, and stopped asserting that crimes had been committed in the clubhouses. Instead, he argued that the crimes hadn’t happened yet.

“By the proposed amendments, all reference in the forfeiture to the three clubhouses as having been used to engage in unlawful activities or to facilitate all of the previously pleaded past unlawful activities will be deleted,” Justice Barry Davies writes in his judgement, from 2015. “What will remain is the Director’s claim for relief only on the basis that the three clubhouses are instruments of unlawful activity because they ‘are likely to be used to engage in the HAMC’s unlawful activity that may result in the acquisition of an interest in property and/or cause serious bodily harm to persons.’”

The director’s argument is based on amendments to the act that were added since the proceedings began. The updated law reads that the government may seize “property that is likely to be used to engage in unlawful activity that may result in the acquisition of property or an interest in property, or cause serious bodily harm to a person.”

Lawyers for the biker gang are challenging that language as unconstitutional, arguing that the court can’t seize their property based on crimes that haven’t occurred yet. That argument will come before the court at a later date.

What’s more is that the clubhouses are currently in the possession of the state, pending trial — which isn’t scheduled until 2017.

That’s thanks to an ‘interim preservation order,’ which allows the state to take over the property while litigation continues.

Amendments to the act have virtually tied the court’s hand in the matter, directing that  “unless it is clearly not in the interests of justice, the court must make an interim preservation order” if it believes that there is a “serious question to be tried.”

Justice Davies ruled earlier in February that an application from the Hells Angels to have their property returned until the court finally determines the status of their property for good had to be denied, as the law “clearly” indicates that there ought to be a low threshold for seizing the property in the interim.

Photo licensed under Creative Commons by SMcGarnigle

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