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Lawyers question civil forfeiture’s evidence policies

David Lloydsmith of Mission, B.C is pictured outside of the Law Courts in Vancouver, British Columbia on February 17, 2014.

Ben Nelms/The Globe and Mail

Abandoning its most high-profile case could indicate British Columbia's Civil Forfeiture Office is thinking twice about files in which evidence was unlawfully obtained, say lawyers who have worked on forfeiture cases.

The government agency was created in 2006 to fight organized crime, but has come to have a far broader reach and has been criticized for the people it targets and the fairness of the process.

The office – which was the subject of a recent Globe and Mail investigation – earlier this week ended its pursuit of a Fraser Valley home belonging to David Lloydsmith, a former electrician on partial disability. A police search of Mr. Lloydsmith's home turned up marijuana plants, but a judge ruled the search to be warrantless and in violation of the Charter. Mr. Lloydsmith was never charged with a crime, and the officer involved in the search characterized the offence as "minor."

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Jay Solomon, a Vancouver lawyer, said the Civil Forfeiture Office needs to reconsider accepting any cases in which there have been Charter breaches. "I think their policy in prosecuting cases where there are serious Charter violations is wrong and they're paying the price for it," he said.

Mr. Solomon noted that a Court of Appeal ruling in Mr. Lloydsmith's case earlier this year cited the hardship defendants endure when fighting for their Charter rights. Legal aid is not available in civil forfeiture cases, and the court said a power imbalance exists between the office and the people it targets.

Sean Hern, a Victoria lawyer, said it's important to know whether the office's director is screening for potential Charter breaches and whether such cases are in the public interest. Mr. Hern represented the B.C. Civil Liberties Association when it intervened in Mr. Lloydsmith's case at the Court of Appeal. He said that court's ruling – the Civil Forfeiture Office's application was dismissed – undoubtedly played a role in it abandoning the case.

The court's ruling meant the Charter violations in Mr. Lloydsmith's case would have to be dealt with before a full trial – hurting the office's leverage in any settlement discussions.

Mr. Hern said the decision has put the onus "back onto the director to think carefully about how he selects cases to go forward with. We're certainly hopeful that they use their discretion to take care not to target cases in which there are Charter breaches or potential Charter breaches."

Phil Tawtel, the office's director, would not agree to an interview Tuesday. In an e-mailed statement, he said Mr. Lloydsmith's case was dropped after consultation with legal counsel because it was "the most appropriate way to resolve the matter."

The statement said the office takes a number of measures to ensure due diligence before accepting a file.

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In response to a question about other cases involving Charter breaches and whether they were being dropped, Mr. Tawtel said all cases are re-evaluated on an ongoing basis, a process that includes consideration of Charter issues.

Mr. Solomon said the questions about Charter issues demonstrate that the office would be better served having someone who has worked as a Crown prosecutor at its helm. He added that while there has been a great deal of focus on such cases, the majority of the ones he sees are instances in which a landlord did not know their tenant was growing marijuana and is now at risk of losing the property.

Mr. Lloydsmith, who described himself as being in a state of shock when he spoke with The Globe about the end of the case Monday, said in a follow-up interview that he was still trying to let it all sink in. He said the case has put an incredible strain on him for years – he's seen doctors for the stress. He said it's also wiped out what he had in his savings and RRSPs.

Still, he held out hope that some good would come of what he endured. "I hope things are going to change, the way the Civil Forfeiture Office operates. I hope I've accomplished something. It's got to be more than just a win for me, it's got to be a win for everybody."

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