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Judge blasts AG for civil forfeiture delay

|Written By Yamri Taddese

In a clear message to the Ministry of the Attorney General about unreasonable delays, a Superior Court judge said a six-year wait to file a forfeiture application was “unfair to the point of offensive” before tossing out the case.

The decision is in line with constitutional litigation respecting delay, says Chris Hicks. Photo: Laura Pedersen

Despite finding a Bowmanville, Ont., man wasn’t a diligent owner of his home that his son used in his drug operation, ordering the forfeiture of the house would be against the interest of justice, Superior Court Justice John McCarthy found in The Attorney General of Ontario v. 20 Strike Ave., Bowmanville, Ont. The owner, who was unaware of the risk of losing his house, paid the mortgage and built up his home equity for six years while the government lagged in bringing a forfeiture application forward, according to McCarthy.

“I cannot imagine that reasonable members of the community would not find it troubling, perhaps even shocking, for a court to order forfeiture in these circumstances,” he wrote.

“Fairness requires a balancing of the competing interests of the applicant and the property owner. An unexplained six-year delay in bringing a forfeiture application under s. 8(1) of the act, while an unsuspecting owner of property builds up his equity in a property for the benefit of the attorney general, is unfair to the point of offensive.”

Roger Parker and his daughter Deborah were facing forfeiture of their car and home due to Parker’s son’s use of his family’s properties in his drug operation.

McCarthy dismissed the application for forfeiture of Deborah’s car as she exercised due diligence in preventing its use for criminal purposes. But he couldn’t say the same for her father. The father knew about his son Fred’s criminal past and ought to have been suspicious about a drug operation thriving under his roof, according to the judge.

“He must have realized, having learned of the enormous covert grow operation that Fred Parker operated under his very nose at 405 Lake Road, that Fred’s penchant for mischief and deceit demanded a special kind of supervision.”

Nevertheless, McCarthy ruled against the ministry’s application for forfeiture. “The applicant could offer no explanation of the reason for the delay other than that prospective applications were backlogged,” he wrote.

When asked by Law Times about the reasons for the delays, the ministry refused to provide any details. “As the matter is within the appeal review period, no comment is appropriate,” said ministry spokesman Jason Gennaro.

The judge’s decision is in line with the Charter of Rights and Freedoms, according to Hicks Adams LLP founding partner Chris Hicks.

“Knowing six years earlier of the misuse of the land and Mr. Roger’s son and Mr. Roger’s role in the criminal activity, the delay in pursuing the matter was fatal to the Crown’s pursuit of the land, which runs parallel to Charter litigation respecting delay,” he says.

Litigator James Morton says he has seen delays by the government in forfeiture cases but never to the degree in this case. “Often the delay is three or four years and it’s caused by both sides,” says Morton, who calls this case “extraordinary.”

McCarthy’s decision “sends a message to the profession as a whole . . . that we’ve got to prioritize these things,” he says. “The case of backlogs won’t work.”

The Crown argued the father had bought the house for his son and was an owner in name only. It alleged the father was therefore facilitating drug trafficking by allowing his son to use the property as an instrument of crime. But that argument didn’t sway McCarthy’s stance that the Crown should have acted on this knowledge earlier. “To the extent that any of that is true, it is obvious that the AG believed it to be true by March 2006 or a short time thereafter,” wrote McCarthy.

Lawyer Bernard O’Brien, who represented the respondents in the case, says the prosecution came as a surprise to his client. “When somebody looks at the provisions of the Civil Remedies Act, it’s a statute with a real bite in it. It’s a very pernicious type of law,” says O’Brien, who calls McCarthy’s decision fair.

The decision comes at a time of increased interest in forfeiture cases. In a recent article in Canadian Lawyer, for example, one B.C. lawyer referred to the government’s efforts to seize property as a “tremendous cash cow.”

“This is an absolutely urgent access-to-justice issue,” Micheal Vonn, policy director of the B.C. Civil Liberties Association, told Canadian Lawyer. She noted individuals ensnared by the forfeiture law are often first-time offenders not connected to organized crime. In addition, they don’t have the resources to fight legal battles against the provincial government and don’t qualify for legal aid.

In Alberta, newly proposed legislation is aiming to streamline forfeitures of property by requiring owners to fill out a form indicating their intention to battle the Crown in court within 30 days of receiving notice. The government has suggested most owners don’t seriously oppose the forfeiture but use various techniques to delay the process.

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