The provincial legislation that was used to seize the Nanaimo Hells Angels clubhouse on Victoria Road has become the target of a constitutional challenge.
Lower Mainland Hells Angels members and prominent human rights lawyer Joe Arvay filed a counterclaim in the Supreme Court of B.C. on Tuesday.
Their claim contests the use of the Civil Forfeiture Act to seize two Hells Angels clubhouses, in Vancouver and Kelowna.
Noted in the claim was the similarity of the CFA claim against the Nanaimo clubhouse on Victoria Road, which was seized in 2007.
The defendants have taken the position that the CFA has been used to circumvent the usual requirements of a criminal proceeding - for instance, proof beyond a reasonable doubt - to punish suspected criminals based on probabilities alone.
The counterclaim described the CFA as a substitution for the criminal process and as such, a violation of the defendants' Charter rights.
The CFA came into force on April 20, 2006. The intention of the Act was to "suppress crime by removing the working capital and tools of criminal and other illicit activity." In civil court proceedings, a lower burden of proof is required to obtain a decision, unlike criminal matters which require the facts to be set out beyond a reasonable doubt.
A member of the local Hells Angels was contacted but refused to comment.
Vancouver Hells Angels president Rick Ciarniello told the Daily News that residents of B.C. should be concerned about their rights.
"It's a Charter rights issue," he said. "Why would anybody want the Hells Angels to fight for their Charter rights? These are not just rights for us, they're rights for anybody."
The Ministry of Justice has said it cannot comment on the ongoing proceedings. An emailed statement from Minister of Justice Suzanne Anton defended the CFA.
"Our civil forfeiture laws continue to be extremely successful in forfeiting the instruments and proceeds of unlawful activity and redirecting funds to crime prevention activities," Anton said. "A key distinction in the civil court process is that it depends upon a civil standard of proof - that is, a balance of probabilities," she added. "(It) involves taking action against property rather than people."
A criminal law expert with Simon Fraser University has said the defendants could indeed have a case.
Under the Canadian Criminal Code, the proceeds of crime and other related property can be seized upon a conviction.
The provincial legislation allows the Crown to "basically sidestep those protections," said criminologist David MacAlister. Since the end result (forfeiture) is the same through both avenues, the safeguards should also be the same, he said.
"It shouldn't be easy. We're talking about taking peoples' houses away," he said. "We're talking about a serious consequence, a serious penalty and therefore the Crown should be put to the task to prove the case beyond a reasonable doubt. These laws could conceivably be used against any one of us."
Property seized under the CFA becomes subject to an interim preservation order and cannot be sold unless both sides agree.
If a court orders the forfeiture, the property can be sold or disposed of. The matter that involves the Nanaimo clubhouse remains before the courts.
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