Is  the forfeiture of property justified?                                                                                                                                                                         Federal and provincial authorities in Canada have the right to seize homes  where illicit drugs have been found. This right is found in the Criminal Code     under section 16 (1) (b) (i) which says;                                                                          

 “Where a person is convicted of a designated substance offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall in the case of any other offence-related property, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law.” unquote               

                                                                                                                                                

This clearly means that if you are selling or manufacturing illicit drugs from your home, your home can be seized and sold and the proceeds of the sale will not go to you. It does not mean that if you have a small amount of illicit drugs in your home for your personal use, your home will be sold.                                    

Kien Tam and Nga Thuy Nguyen, a married couple, were charged with producing marihuana, as well as with possession of the drug for the purpose of trafficking, contrary to ss. 5(2) and 7(1) of the Controlled Drugs and Substances Act.  These charges related to a marihuana grow operation located in their three-level residence in Surrey, British Columbia. The residence was registered in Mr. Nguyen’s name.  At the time of the offence, Mr. and Mrs. Nguyen resided with their two younger children in a rental accommodation elsewhere. Their eldest daughter, then 18 years old, resided in the Surrey property. After they were charged, the rest of the family moved into the Surrey property.                                                                                                                                

 The police seized a “moderately‑sized but sophisticated grow operation” containing 96 marihuana plants.  At the time of the search, it was apparent that there had been a recent harvest due to the presence of empty pots.  A new crop of marihuana had been prepared. Marihuana clones were found in the main floor kitchen refrigerator.  Two of the three bedrooms on the upper floor were only used on a transitory basis.  The exterior front door to the residence had a metal bracket and a barricade.  The windows to the basement rooms containing marihuana plants were boarded up.  Lighting, irrigation and ventilation systems had been installed in the basement.  Air fresheners were installed on the main floor.  More generally, the Nguyens had gone to significant lengths to conceal the nature of the operation inside the property.                                            

Neither of the Nguyens had a criminal record, nor did they have any involvement in organized crime.  However, the trial judge found as aggravating factors the sophistication and commercial nature of the operation, as well as the likelihood that the house had been purchased for the sole purpose of growing marihuana. Amongst other penalties, he ordered the forfeiture of the house and property it stood on. The Nguyens appealed but lost their appeals. The house and property was no longer theirs.                                                              

But is the forfeiture of homes and property always just in cases where illicit crimes are committed?                                                                                                       

The B.C. Civil forfeiture office filed suit against Mumtaz Ladha two years ago, for the seizure of her home and property after the charges of human trafficking and other offences under the Immigration Act were announced against her. The 60-year-old was accused of coercing a young African woman to come to Canada and then lying to immigration officials so that she could bring the woman to Canada illegally in August 2008. She was also accused of forcing the young woman into working for her as an unpaid servant.                                         

Justice Lauri Ann Fenlon said in her decision that the young woman’s evidence was not credible and the Crown (prosecutor) did not prove that the woman was coerced into coming to Canada or was working for the Ladha family. Justice Fenlon also said that the young woman had treated her employer with callous disregard for her benefactor and for the truth.                                                             

Ladha was then found not guilty in British Columbia, Canada  Supreme Court on November 22, 2013 with Justice Lauri Ann Fenlon concluding that not only was there reasonable doubt as to her guilt, but that she was convinced Ladha’s accuser was lying. That is about as close as you can get in saying that she was innocent.                                                                                                                               

Following the court’s decision, Ladha’s lawyer wrote to the B.C. Civil Forfeiture Office, requesting that they end their attempts to seize her West Vancouver house which is worth $4 million.                                                                                     

Now one would think that after the decision of the judge finding Ladha not guilty of the crime she was charged with; that her problems with respect to the proposed forfeiture of her home and property would be over. But that was not to happen. The provincial agency said that it can continue the civil lawsuit to claim the West Vancouver home owned by Ladha, with or without a conviction.  Now that certainly seems strange and unfair.                                         

If the judge had said, “I have strong doubts about the defendant’s explanation that she did no wrong but I will give her the benefit of the doubt.” I could understand the logic of the B.C. Civil Forfeiture Office.  But the judge actually exonerated her from having committed the offences she was charged with. The judge at Ladha's criminal trial actually delivered an unequivocal acquittal of the charges against Ladha.                                                                                                

For a successful claim, the B.C. Civil forfeiture office must prove the property owner was complicit in, had knowledge of, or was wilfully blind to the unlawful activity she was accused of. I don’t see how that would apply in Ladha’s case.     

                                                                                                                                                 

According to the B.C. Civil forfeiture office’s website, it doesn’t matter whether or not proceedings are initiated in court or administratively, they are not reliant on criminal charges or convictions arising from the alleged unlawful activity. It would appear on the surface that they are also not relying on acquittals also.                                                                                                                     

These people are saying that although the criminal trial has acquitted Ladha, the civil administration has not. They state that there is a clear legal process in place, and civil forfeiture neither undermines nor circumvents charter rights. However, both civil and criminal processes must meet Charter protections.       

Section 11, subsection (h) of the Canadian Charter of Rights and Freedoms states that if acquitted of an offence, a defendant cannot be tried for the same crime again. Of course, if the prosecution is successful in appealing the verdict and a higher court orders a new trial, then that is the exception.  But in Ladha’s case, the crown didn’t appeal the verdict.                                                                    

However, I would be remiss if I didn’t add that there is a different method of determining criminal liability between criminal and civil courts. In the former, the verdict is based on the presumption of innocence whereas in civil liability cases, the decision is based on the preponderance of the evidence which means evidence which is more convincing than the evidence offered in opposition.        

However, the B.C. Civil forfeiture office is facing an insurmountable problem. To proceed against Ladha, they have to bring her accuser into the hearing and that isn’t going to happen because the accuser is no longer in Canada. She is in Africa again—permanently.  Trying to find her is out of the question.  And using the transcript of the trial will not be acceptable since no one can cross examine a transcript as to what someone said unless they are actually in testifying in the hearing.                                                                                                    

I strongly believe that the B.C. Civil forfeiture office will eventually come to their senses and give up their plan to seize Ladah’s home and property.               
                                                                                                                                               
Just how far can such an agency go in seizing property?  For example, can they seize your car of you are found guilty of driving while your driving is impaired? Can they seize your car if the find an ounce of marijuana in your car? Can they seize a motorcycle that is speeding over the permitted limit? I know this seems silly but governments are prone to making silly decisions.  If they seize Ladha’s property and home, I have to presume that they are using the law as a cash cow to increase the amount of money in the province’s piggy bank.                               
 SHAME on the B.C. Civil forfeiture office if that happens.                                     



                                                                                                                                                 
                                                                                                                                                                                                                                           SHAME