a bunch of older business men? 
British Columbia’s Civil Forfeiture Office is going beyond the province’s powers in its pursuit of three Hells Angels clubhouses and is using civil court as a substitute for the criminal justice system, says a lawyer representing the motorcycle club.
In October, 2013, the Hells Angels announced a constitutional challenge of B.C.’s Civil Forfeiture Act. The Civil Forfeiture Office, the government agency that seizes property believed to be linked to crime, had started proceedings to take possession of the group’s clubhouses in Nanaimo, East Vancouver and Kelowna. A trial date has not been set for any part of the case, but the parties were in B.C. Supreme Court for a hearing on Thursday.
John Hunter, the lawyer representing the Civil Forfeiture Office in the case, applied to amend his pleadings to remove allegations against specific Hells Angels members and instead focus on unlawful activity that will occur at the clubhouses in the future unless the activity there is stopped – rather than what may have occurred there in the past.
He told Justice Barry Davies he hoped that not having to prove specific allegations against individuals would move the case more quickly.
But Joseph Arvay, representing the Hells Angels, told the court the office’s argument is flawed. He called the Civil Forfeiture Act “unconstitutional” and said the issues are the jurisdiction of Parliament, not the province.
“When the province seeks to deter organized crime by seeking forfeiture on the basis that [property] might in the future be used to commit crimes, the province strays beyond its area of provincial competence and entrenches on Parliament’s exclusive power in relation to criminal law,” he said.
Mr. Arvay said the office is trying to use the civil court’s lower standard of proof to make a case that people will commit crimes in the future. “If there’s no past crime, once [Mr. Hunter] proves that the Hells Angels are a criminal organization on the balance of probabilities, he will now ask you to find on the balance of probabilities that the members of the Hells Angels … have a propensity to commit crime. … This would completely violate any of the rules of criminal law,” Mr. Arvay told Justice Davies.
Mr. Arvay said the civil forfeiture office is trying to do what police and the Crown could not – drive the Hells Angels out of British Columbia.
He said simply removing the names of Hells Angels members from the office’s pleadings will not prevent the case from affecting individuals.
“The fact that they’re trying to make this look like it doesn’t have anything to do with real people – it’s just a piece of property, it’s a clubhouse – is, with respect, highly deceiving,” he said.
Mr. Hunter said he applied to amend his pleadings because the director of civil forfeiture, Phil Tawtel, asked him to get the cases to trial. The Civil Forfeiture Office initiated proceedings against the Hells Angels clubhouse in Nanaimo in November, 2007, and the East Vancouver and Kelowna clubhouses in November, 2012.
Mr. Hunter said that, if his amendments are approved, his case will be made up of two parts.
“The first proposition is that the Hells Angels are a criminal organization. The second proposition is that these clubhouses are instruments that the Hells Angels Motorcycle Club use to further their criminal activity, and that is evidence that we will have to lead,” he said.
He said his case will include testimony from police investigators.
Justice Davies at one point said he was “embarrassed” the matter is still not close to trial eight years after the Nanaimo raid.
The hearing will continue on Friday.
The Globe and Mail has reported extensively on B.C.’s Civil Forfeiture Office for more than a year. The office does not need a conviction or charges to pursue a case, and critics have called it a cash cow. It has seized millions of dollars more than a similar office in Ontario, despite opening three years later.
British Columbia’s Civil Forfeiture Office is going beyond the province’s powers in its pursuit of three Hells Angels clubhouses and is using civil court as a substitute for the criminal justice system, says a lawyer representing the motorcycle club.
In October, 2013, the Hells Angels announced a constitutional challenge of B.C.’s Civil Forfeiture Act. The Civil Forfeiture Office, the government agency that seizes property believed to be linked to crime, had started proceedings to take possession of the group’s clubhouses in Nanaimo, East Vancouver and Kelowna. A trial date has not been set for any part of the case, but the parties were in B.C. Supreme Court for a hearing on Thursday.
John Hunter, the lawyer representing the Civil Forfeiture Office in the case, applied to amend his pleadings to remove allegations against specific Hells Angels members and instead focus on unlawful activity that will occur at the clubhouses in the future unless the activity there is stopped – rather than what may have occurred there in the past.
He told Justice Barry Davies he hoped that not having to prove specific allegations against individuals would move the case more quickly.
But Joseph Arvay, representing the Hells Angels, told the court the office’s argument is flawed. He called the Civil Forfeiture Act “unconstitutional” and said the issues are the jurisdiction of Parliament, not the province.
“When the province seeks to deter organized crime by seeking forfeiture on the basis that [property] might in the future be used to commit crimes, the province strays beyond its area of provincial competence and entrenches on Parliament’s exclusive power in relation to criminal law,” he said.
Mr. Arvay said the office is trying to use the civil court’s lower standard of proof to make a case that people will commit crimes in the future. “If there’s no past crime, once [Mr. Hunter] proves that the Hells Angels are a criminal organization on the balance of probabilities, he will now ask you to find on the balance of probabilities that the members of the Hells Angels … have a propensity to commit crime. … This would completely violate any of the rules of criminal law,” Mr. Arvay told Justice Davies.
Mr. Arvay said the civil forfeiture office is trying to do what police and the Crown could not – drive the Hells Angels out of British Columbia.
He said simply removing the names of Hells Angels members from the office’s pleadings will not prevent the case from affecting individuals.
“The fact that they’re trying to make this look like it doesn’t have anything to do with real people – it’s just a piece of property, it’s a clubhouse – is, with respect, highly deceiving,” he said.
Mr. Hunter said he applied to amend his pleadings because the director of civil forfeiture, Phil Tawtel, asked him to get the cases to trial. The Civil Forfeiture Office initiated proceedings against the Hells Angels clubhouse in Nanaimo in November, 2007, and the East Vancouver and Kelowna clubhouses in November, 2012.
Mr. Hunter said that, if his amendments are approved, his case will be made up of two parts.
“The first proposition is that the Hells Angels are a criminal organization. The second proposition is that these clubhouses are instruments that the Hells Angels Motorcycle Club use to further their criminal activity, and that is evidence that we will have to lead,” he said.
He said his case will include testimony from police investigators.
Justice Davies at one point said he was “embarrassed” the matter is still not close to trial eight years after the Nanaimo raid.
The hearing will continue on Friday.
The Globe and Mail has reported extensively on B.C.’s Civil Forfeiture Office for more than a year. The office does not need a conviction or charges to pursue a case, and critics have called it a cash cow. It has seized millions of dollars more than a similar office in Ontario, despite opening three years later.
