In a recent legal development, a B.C. Supreme Court judge has raised constitutional concerns regarding the province’s civil forfeiture law during a case involving the seizure of warehouses linked to alleged drug-related activities. The case, initiated by the director of civil forfeiture, targets the warehouses on Shaughnessy Street, alleging them as “proceeds and instruments of unlawful activity.”
The legal proceedings originate from a prior drug seizure, where a news release reported the confiscation of “thousands of pounds of drugs,” including cannabis extracts, balms, and edibles. While charges were anticipated, it remains unclear whether anyone has been prosecuted.
In 2021, the director of civil forfeiture filed a lawsuit seeking to seize the warehouses, marking a crucial juncture that could have ramifications for B.C.’s controversial civil forfeiture law. A B.C. Supreme Court judge ruled that a section of the law is inconsistent with the Charter of Rights and Freedoms, necessitating further examination to determine if it falls within “reasonable limits.”
In a ruling dated December 29, Justice Jasmin Ahmad expressed concerns over the act’s search and seizure provision, stating that it “does not strike a reasonable balance between the state’s interest and an individual’s privacy rights.” Ahmad found “many problematic aspects” in the provision, deeming it overly broad and highly intrusive.
Critics have long voiced concerns about B.C.’s civil forfeiture law, allowing the government to seize property linked to criminal activity, even in the absence of a conviction. While criminality requires proof beyond a reasonable doubt, civil forfeiture operates under a lower standard of proving civil liability based on a balance of probabilities.
The director of civil forfeiture had sought bank account information from the warehouse owners, Scott McDermid and Leslie Ann McDermid, to uncover “relevant evidence of unlawful activity and the McDermids’ state of knowledge.” The court alleged that Scott McDermid, a realtor, was aware of the unlawful activity, raising concerns of potential criminality.
The McDermids contested the constitutionality of the sections authorizing the investigation into their bank accounts, leading Justice Ahmad to conclude that one section of the act was “overly broad” and the searches it authorized were “highly intrusive.” While acknowledging the provision’s compelling purpose, Ahmad ruled that its overbreadth allowed for significant intrusion into individuals’ private lives, violating their reasonable expectation of privacy.
Although Ahmad found this section inconsistent with the Charter, it may still survive under the Charter’s reasonable limits clause, permitting infringements on protected rights that are “demonstrably justified in a free and democratic society.”
Scott McDermid and his lawyer Greg DelBigio declined to comment on the ruling. The B.C. Ministry of Public Safety is reviewing the decision, and a hearing date for the next phase of the case is yet to be advised.
Legal observers and critics of civil forfeiture deem the ruling in the McDermid case significant, irrespective of the upcoming “reasonable limits” test. Criminal defense lawyer Matthew Nathanson stated that the ruling affirms limitations on the government’s broad powers in the civil forfeiture context, emphasizing the need to respect citizens’ constitutional rights.
Lawyer Greg McMullen, representing the B.C. Civil Liberties Association, criticized the province’s civil forfeitures, claiming it creates a presumption of guilt among those facing property forfeiture actions. He argued that the investigative powers granted under the law are open to abuse and make him “deeply uncomfortable.”
McMullen stressed the potential for abuse in the civil forfeiture system, targeting individuals who haven’t been convicted of a crime, highlighting a problematic aspect in a democratic society. He advocated for asset forfeiture after a criminal conviction, asserting that it ensures a fair and just process.