Civil forfeiture a political reason for Prohibition

[flamingfingers]

While we have been fed the pablum of political altruism in the "War on Drugs" there seems to be an insidious and self-serving agenda in keeping prohibition alive and well - functioning as a funnel to provide funds for political gain and destroying the lives of individuals who have been victimized solely for the fact that they carry 'cash'. But have never been charged with any criminal act!! Disgusting!

Critics warn civil forfeiture gives government a ‘licence to steal’ as Hells Angels gear up to fight legislation


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Brian Hutchinson | October 11, 2013 6:44 PM ET
More from Brian Hutchinson | @hutchwriter

Regina resident David Mihalyko was broke and his 13-year-old Chevy Blazer truck was out of gas. It was September 2010, and all he had in his pocket were some Oxycontin tablets, “legally prescribed for him as a result of an injury he suffered to his foot,” according to court documents. Mr. Mihalyko decided to raise some cash by selling two tablets to a woman he thought was a prostitute, working the Regina stroll. She paid $60 for the tablets. Mr. Mihalyko spent all of the cash on fuel for his truck.

The woman was an undercover police officer. Mr. Mihalyko was arrested and charged with trafficking in a controlled substance. He pleaded guilty to the offence, and received a conditional sentence of nine months. But the Crown in Saskatchewan wasn’t satisfied. It turned to relatively new civil forfeiture laws to extract more from the hapless defendant. The state went after his truck, claiming it was an instrument of crime.

Unlike most targets of civil forfeiture in Canada, Mr. Mihalyko fought back. His case went to Saskatchewan Court of Queen’s Bench, where a judge decided he really wasn’t much of a drug dealer. The Oxycontin sale was an “isolated incident,” the judge found, and the truck seizure was “disproportionate to the offence.” The judge said Mr. Mihalyko should have his truck returned to him.

Most people just seem to cave when faced with these lawsuits

But the Crown appealed. In April, 2012, a panel of three judges found Mr. Mihalyko’s offence to be considerably more serious than the trial judge had indicated. The appeal was allowed, and Mr. Mihalyko’s truck was lost for good.
“I find it was extreme, unfair and basically gives the government a licence to steal,” Mr. Mihalyko told reporters after the appeal court decision.

His lawyer, Brad Tilling, said Mr. Mihalyko went as far as he could before finally succumbing to “a very powerful instrument.”

His case is not unusual. Civil libertarians, defence lawyers and some judges are raising concerns about the use of civil forfeiture in Canada. Seven provinces have enacted legislation allowing authorities to seize and then dispose of an individual’s private property, even in cases where illegal activities have neither been proven, nor charges laid.

It’s difficult for regular citizens to seek redress; the costs of defence can be prohibitive. Mr. Mihalyko was the first person in his province to actually challenge a civil forfeiture.

Members of the Hells Angels Motorcycle Club in B.C. seem prepared to spend large sums on legal challenges. They have their sights set on civil forfeiture. Joe Arvay, a prominent constitutional lawyer, admits the bikers may not seem “the most sympathetic” of clients, but they have an important case, he says, and it’s going to be made soon in B.C. Supreme Court. At issue are property rights and basic constitutional protections afforded all Canadians.

On Tuesday, local Hells Angels members filed documents calling the province’s seven-year-old Civil Forfeiture Act unconstitutional. Authorities in B.C are attempting to use the legislation to forfeit three Hells Angels clubhouses — in Vancouver’s east end, in Kelowna and in Nanaimo. The clubhouses were allegedly used by Hells Angels as “instruments of crime.”

The Nanaimo clubhouse was targeted for forfeiture in 2007, after a lengthy police investigation and property search; these did not result in a criminal prosecution. Last year, authorities launched proceedings to forfeit the Vancouver and Kelowna properties. It’s alleged they have been used as instruments in the commission of crimes including drug production, assault and murder.

In an unusual appeal for public support this week, local Hells Angels member and spokesman Rick Ciarniello said the forfeiture legislation “should trouble everyone and not just our members. Governments everywhere are now routinely using these ‘civil forfeiture’ laws as a substitute for the criminal process. Most people just seem to cave when faced with these forfeiture lawsuits. We aren’t going to do that and our fight will be for all British Columbians.”

On the contrary, says the province, civil forfeiture is a very useful instrument, deterring “unlawful activity by taking away instruments and proceeds of it.” Reacting to the Hells Angels challenge, provincial justice minister Suzanne Anton said the process “neither undermines nor circumvents Charter rights — both civil and criminal processes must meet Charter protections.”

Most civil forfeiture cases in Canada involve marijuana grow operations and drug transactions; people accused of cultivation and possession can have their cash and properties taken once authorities convince a judge that, on the balance of probabilities, they are proceeds or instruments of an illegal activity.

Besides cash, property most commonly forfeited include cars, jewellery, cellphones, and computers. They are sold off, and the returns are typically used to fund various crime-reduction programs and strategies.

In B.C., proceeds are used to fund the province’s civil forfeiture program itself. The Director of Civil Forfeiture publishes and updates a list of items it has seized and liquidated. Recent items include a 1964 Volkswagen Karman Ghia — related to a case of possession for the purpose of trafficking — and the forfeiture of $52,025 cash. The bounty keeps piling up. B.C.’s Court of Appeal has decided there is “no requirement” that “the primary use of [a forfeited] property was unlawful.”

Some critics say it’s a blatant cash grab. “It’s all about the money,” claims David Karp, a Vancouver lawyer who has defended clients in civil forfeiture cases. “It’s patently unreasonable and unfair. The legislation completely turns things upside down. If the Crown can’t get a criminal conviction they try to seize his property. And the accused is treated as guilty until proven innocent.”

No one charged Remus Petran with a crime, but he still lost a large amount of cash. Late one night in October, 2009, the Toronto resident was driving along Highway 401 near Morrisburg, Ont. Road conditions were good but he was travelling below the speed limit. According to court documents, an Ontario Provincial Police (OPP) officer pulled him over, thinking he might be intoxicated.

The officer poked around Mr. Petran’s car, opened its trunk, and discovered a knapsack filled with $75,980 in small bills. Mr. Petran explained that he worked in construction and was paid in cash. The officer seemed not to accept the explanation, and decided the money represented the proceeds of crime. He arrested Mr. Petran and seized the cash and his car.

Mr. Petran was soon released unconditionally. No charges were laid, and his car was returned to him. But police hung onto the money, “pending further investigation.” For reasons that were never explained in court, the OPP forwarded nearly $30,000 of the seized cash to the Canada Revenue Agency.

The Attorney General of Ontario (AGO) then sought to keep the remaining $46,000, using the province’s Civil Remedies Act, its version of B.C.’s “pioneering” forfeiture legislation. The government’s motion for an <em>ex parte</em> order was denied by Superior Court Justice D.M. Brown, who slammed the OPP and the AGO.

“For one government agency to distribute to another property it did not own, without notice to the purported owner of the property or without sanction of a court order, may strike those agencies as an efficient, uncluttered way in which to collect tax,” the judge wrote in his reasons for denying the motion. “But the AGO should understand that such conduct, absent adequate explanatory evidence, will raise questions in the mind of a court about the propriety and legality of such conduct.”

Mr. Petran never sought the return of his cash.

Mr. Mihalyko, for his part, could not be reached for further comment this week; he seems to have dropped from sight. Even his lawyer, Mr. Tilling, has lost contact with him. He can’t call Mr. Mihalyko anymore, because his client’s cellphone was also seized by the state.

National Post

[Gixxer]

Government Gangsters. Deep pockets lined with taxpayers money, protected by the laws they create.

[flamingfingers]

Government Gangsters. Deep pockets lined with taxpayers money, protected by the laws they create.

Particularly when the Government states that allowing people to keep growing their own cannabis will "harm the fledgling Corporate Licensed cannabis producers".