A Vancouver Island man who was acquitted on charges related to hundreds of marijuana plants on his property could still lose his land, following a court ruling that dismissed his application to stop the government from seizing the property.
The Sept. 2 decision, posted online this week, could add to debate around British Columbia's Civil Forfeiture Act, which was designed to give the government a way to go after ill-gotten gains, but that some critics say goes too far.
"We have this new regime that says, 'Okay, well, never mind about that prosecution in which you were acquitted. We're going to take the fruits of that Charter breach – which was sufficient to make that evidence inadmissible in a criminal court – and apply it to our civil procedure and go after your house,'" said Michael Vonn, policy director of the British Columbia Civil Liberties Association.
Under the act, which came into effect in 2006, the standard of proof is a balance of probabilities, which is lower than the criminal standard of proof of beyond a reasonable doubt. To date, the province has collected nearly $17-million in proceeds through the act from goods including cars and real estate.
The act allows for proof of "unlawful activity" even where there is no criminal conviction or charges and despite the acquittal of an accused for the suspected offence.
"It's a way of going after people one suspects of being guilty of criminal offences without having the strictures of the Charter apply," said Peter Roberts, a partner with Lawson Lundell in Vancouver.
The recent court decision involves Christopher Shoquist, the owner of a property in Qualicum Beach.
According to the judgment, the RCMP executed a search warrant on Mr. Shoquist's property in January, 2009. In an outbuilding on the property, police found nearly 400 marijuana plants, 30 vacuum-sealed plastic bags of marijuana, a scale and other marijuana "cultivation, production and trafficking paraphernalia."
Mr. Shoquist was charged with producing a controlled substance and possession of a controlled substance for the purposes of trafficking.
At his criminal trial in November, 2010, a judge found the warrant invalid, because RCMP officers had trespassed on Mr. Shoquist's property to make the observations on which the warrant was based. Police had thought they were on a neighbour's property when they went looking for information based on a suspicion that Mr. Shoquist "was up to no good," the judge said.
Because of the warrantless search and lack of evidence, Mr. Shoquist was acquitted. In January, the province started proceedings under the Civil Forfeiture Act.
Mr. Shoquist went to court in a bid to have the process stopped, claiming abuse of process, but B.C. Supreme Court Justice Dean Wilson dismissed Mr. Shoquist's application.
"There is nothing inherently abusive about the director pursuing civil proceedings, based upon information received from others," the judge said. "The director did not infringe or deny any Charter right held by Mr. Shoquist. It was the conduct of the [RCMP]members which denied the right. Therefore, it is the conduct of the [RCMP]members which must be examined in the abuse of process analysis."
The judge also said the police conduct had not been "flagrant" or "unfair."
Mr. Shoquist now has three weeks to file a response to the civil claim.
Along with concerns about upholding the Charter, the BCCLA says it is troubled by the use of the act to go after properties that seem to have only a passing connection to criminal activity, and are not as clearly linked as, say, a house bought with the proceeds of drug sales.
As an example, Ms. Vonn cited the government's decision earlier this month to start proceedings to seize the home of a West Vancouver woman charged with human trafficking.