Civil forfeiture for future unlawful activity, sentencing after a jury verdict, and notice of injunction required

 

This week on Legally Speaking with Michael Mulligan:

Unlike in the United States, where property rights are constitutionally protected, there is no similar protection in the Canadian Charter.

Various provinces, including British Columbia, have set up civil forfeiture regimes that permit property to be seized absent any criminal conviction.

Civil forfeiture can occur based on a civil standard of a balance of probabilities, rather than proof beyond a reasonable doubt.

In British Columbia property can be seized if the government can prove that it’s probably the “proceeds of unlawful activity” or an “instrument of unlawful activity”.

In a recent decision, the BC Court of Appeal found that it was permissible for the provincial government to seize property on the basis that it would probably be used, in the future, for unlawful purposes even if there was no evidence that it had been used for unlawful purposes in the past.

While seizing property on the basis that it is “likely to be used to engage in unlawful activity” in the future, on a civil standard of probably, may be constitutionally permissible, the public policy question that should be asked is whether this is fair or appropriate.

When courts review legislation, they are not deciding if a law is fair or a good idea. The standard of review is whether the legislation is constitutionally permissible.

Also, on the show, a case involving a sentence imposed by a judge for manslaughter, after a jury acquitted an accused of murder, but convicted of this lesser included offence is discussed.

The case involved a 74-year-old man, with no criminal record, who shot a roommate who had engaged in frequent violent, threatening and unpredictable behaviour. On the evening in question the roommate had a dispute over rent and said that he would be dealing with the accused at midnight. When, at midnight, the roommate announced that the accused’s time had come, and did not stop, the accused shot and killed him with a revolver.

When a jury renders a verdict, the judge hearing the case needs to make findings of fact consistent with the verdict and sentence the accused accordingly.

In the case discussed, the Crown asked the judge to find that the case was a “near murder” while the defence urged the judge to conclude it was “near self-defence”. The trial judge took a middle position and sentenced the then 77-year-old to 7 years in jail.

The 7-year sentence was upheld on appeal.

Finally, on the show, a man who was blocking a road to prevent logging was acquitted on a charge of contempt of court because the Crown didn’t prove that the man had knowledge of the court order he was alleged to be in contempt of.

The RCMP, who were enforcing the injunction, read only a summary of the injunction to the man before arresting him.

The Crown argued that the doctrine of wilful blindness was applicable. The judge concluded that this was not applicable as there wasn’t evidence to support this. Wilful blindness could apply if, for example, someone plugged their ears or closed their eyes when an injunction was read or provided to them in writing.

The judge hearing the case pointed out that it’s a criminal offence to obstruct a highway for the purpose of compelling another person to abstain from doing anything they have a lawful right to do, and that knowledge of the law is presumed. Because the prosecution was for contempt, rather than breaching section 423(1)(g) of the Criminal Code, the accused was found not guilty.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts, or wherever you get your podcasts.