Thursday, August 8, 2013

BC Supremes Rebuke Provincial Director Of Civil Forfeiture For Abuse Of Power For Improperly Seizing One Man's Home, Another's Rare Bank Note Collection

In Vancouver, British Columbia, The Vancouver Sun reports:

  • The B.C. Supreme Court has rebuked the provincial director of civil forfeiture for seizing a pensioner's numismatic collection and another man's home.

    Justice Jacqueline Dorgan sitting in Victoria called the actions by director Phil Tawtel, a former commercial crime investigator with the RCMP in Edmonton, "contrary to the interests of justice."

    She was critical of his failure to act on the file for more than a year, for relying on a Vancouver realtor's opinion about a southeastern B.C. property he hadn't seen, for not appearing at an earlier Supreme Court hearing and for seizing the old man's bank note collection - the Mounties left behind his coins.

    "In my view, the director had a perfect opportunity to raise the issues raised today on May 1, 2013, either in the foreclosure action or by seeking to have its petition under the Civil Forfeiture Act heard at the same time or perhaps joining the actions," Justice Dorgan said.

    "I am not going to give the director legal advice. The director knows the rules better than I on how to get before the court under the Civil Forfeiture Act and/or the foreclosure action."

    She dismissed his application for a preservation-and-sale order for the Slocan Valley property.

    In February 2012, Mounties armed with a sketchy search warrant raided the acreage in tiny Winlaw, about 50 kilometres northwest of Nelson.

    William Pundick, 72, was living in a 10-by-14 foot cabin with no plumbing and minimal power.

    "What is found in the cabin he occupied at the Powell Road property?" Justice Dorgan mockingly asked. "Wooden boxes with paper bills neatly filed in envelopes, in boxes beside what appear to be catalogues in respect of paper Canadian currency, all of which is consistent with Mr. Pundick's evidence (that he had been a collector for decades)."

    In an old outbuilding, they found three 600-watt lights, 39 flowering marijuana plants and 32 small plants in cups.

    No money, no guns, no power theft, no other controlled substances.

    Owner Robert Murray said he did not see the inside of a courtroom over the pot because the prosecutor didn't lay charges.

    He and Pundick, though, had to fight to retrieve their assets.

    "I believe the officer's actions in this matter were only for forwarding on information for the director of civil forfeiture's use," Murray complained. "The officer told me to my face after charges were not approved that I would be getting this action against me."

    The justice did not appear amused. "This is not a case where wads of tens or twenties or fifties are rolled up and bound by elastic bands, for example," Justice Dorgan emphasized. "In my view, the evidence does not get the director to the threshold of meeting the test of whether there is a fair question to be tried, that the $9,251 is an strument of crime or acquired as a result of illegal activities."

    Even the cop who confiscated the cash knew that - he said it "looked like a money collection."

    This is the latest example of questionable conduct by the director's office, which seems to go asset-grabbing regardless of conviction, circumstance or fairness.

    Last year it seized about $11 million worth of property.

    Once an asset is confiscated, the forfeiture office squeezes the owner to settle out of court, using the prospect of the high cost of litigation and the interminable delays of the legal system to extract a payoff.

    When it's a drug lord or the Hells Angels, maybe this approach can be justified - they can afford to fight the government.

    People without a criminal record or any evidence of organized crime activity being evicted or dragged into civil court by publicly funded lawyers - they're being hurt.

    Pundick had to hire a lawyer to get back a substantial share of his life savings, worth far more than its face value thanks to a number of rare bills.

    Murray, who has no criminal record, is still battling over the $225,000 property. He said police took his tax returns, mortgage documents and other financial documents.

    "There are more pictures of my financial info documents than there are pictures of marijuana plants," he said, fuming. "This matter has rendered me unemployable in the area; the only job I have had is as a family law legal assistant. I have had to move, list the house, and find alternate employment. They are bullies." Pundick's lawyer also questioned the director's conduct.

    "I feel he has a duty of fairness, not to use the immense resources of the state to bludgeon an innocent person," said Blair Suffredine, Liberal MLA for the area from 2001-05.

    "In this case I repeatedly asked for fairness and suggested there was a duty. There was no evidence to support any causal link between the assets my client owned and any crime having been committed. The director repeatedly offered to settle for a portion of those assets using the cost of litigating as a justification for us to choose that option."

    The justice awarded Pundick costs against the government but normally that means litigants recover about half their legal fees, given the formula used by the court.

    "I hope this decision will cause the office of the director to reflect on their duty to innocent people," Suffredine added.

    Fat chance. "They are now threatening to appeal me into bankruptcy or submission," Murray said.

    "Nice, eh?"

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