A former Hells Angels clubhouse is pictured in Vancouver, on Wednesday, Oct. 25, 2023. The three-bedroom East Vancouver home is one of three former clubhouses of the Hells Angels that now belong to the British Columbia government after the Supreme Court of Canada chose not to hear an appeal related to the province's controversial civil forfeiture process. THE CANADIAN PRESS/Ethan Cairns
VANCOUVER – The three-bedroom East Vancouver home that’s about to hit the market includes a brick fireplace and finished basement, along with a private back deck.
Not to worry – the Hells Angels deaths-head logos have been removed from the gables.
The seller is motivated. The home at 3598 East Georgia St. is one of three former clubhouses of the Hells Angels that now belong to the British Columbia government after the Supreme Court of Canada chose not to hear an appeal related to the province’s controversial civil forfeiture process.
The East Vancouver house is valued at $1.52 million by BC Assessment. The other two properties are in Kelowna and Nanaimo.
They are being added to a $155-million bounty of cash, cars, homes, and even luxury purses and drones seized over the past 17 years by the province after being linked to crime – even if the previous owner was never convicted.
The government touts civil forfeiture as a way to put a dent in organized crime, while civil liberty advocates say it provides criminal-like punishment without the protections of an actual criminal process, and affects people far beyond criminal ringleaders.
The head of the Civil Forfeiture Office says the latest court decision puts to rest concerns about the legality of the process.
Executive director Phil Tawtel said that a 2009 court ruling known as the Chatterjee decision meant that legislation dealing with the proceeds of crime was legal. The latest decision means seizing “instruments of crime,” such as the biker clubhouses, is legal too.
“I follow the law. That is the law that has been set before us. And what the Hells Angels decision did was finally, once and for all, close the Chatterjee decision,” Tawtel said.
“The Chatterjee decision just related to proceeds, not instruments. But the Court of Appeal decision in British Columbia finished it, it closed it, and said this also is valid legislation as it applies to instruments as well.”
The Supreme Court of Canada decision not to hear the case means an appeal court ruling earlier this year stands.
The appeal ruling found there was an “inescapable” inference that the clubhouses would continue to be used for criminal activity and that members relied on them as a “safe space” to plan or commit criminal acts.
Since it started in 2006, the Civil Forfeiture Office has given nearly half of the $155-million value of its seizures to various crime prevention initiatives.
Cases are referred to the office from police who come across property in the course of an investigation in which prosecutors decide not to proceed with a criminal forfeiture.
Unlike criminal court, civil forfeiture cases don’t require proof beyond a reasonable doubt that the items were linked to crime. Instead, they are required to meet a lower threshold of proof “on the balance of probability.”
While more expensive items can involve a lengthy public court process, seized items worth less than $75,000 can go through an administrative process that only involves a judge if someone challenges the claim within 60 days.
“Anyone who challenges that their property is neither a proceed or an instrument of unlawful activity is welcome to step forward and say ‘this property was obtained cleanly or was not used to facilitate a crime.’ And we will take that to court,” Tawtel said.
“And we would argue the evidence would say otherwise.”
Vibert Jack, litigation director with the B.C. Civil Liberties Association, said requiring that a crime be proven beyond a reasonable doubt is an important constitutional protection.
In the case of civil forfeiture, the government doesn’t have to meet that threshold but can take away very expensive property, equivalent to imposing extremely significant fines, through a process the association says is unfair.
“I can imagine that people will look at this case and see that property is being taken from the Hells Angels and be reluctant to, you know, feel sorry for them,” Jack said.
“But nothing in the legislation stops these types of things from happening to people who are committing much less serious crimes, who are not actually profiting from crime, or who are committing offences that aren’t even crimes. And there’s nothing to stop the penalties from being really disproportionate to the alleged offences.”
While advocates for the process will draw attention to large seizures, like those involving the Hells Angels, Jack said the majority of the office’s cases are of the smaller, administrative variety.
Daniel Song, a board member with the BCCLA, said when cheaper items are taken, owners who might already be vulnerable are often left to decide whether it makes financial sense to go through the court process.
“There are elements of the civil forfeiture regime that can have a disproportionate impact on everyday people who live in British Columbia,” he said.
Song represented the Hells Angels in court, but said he was only speaking in his capacity with the BCCLA.
The Supreme Court of Canada did not provide an explanation for its decision not to hear the Hells Angels case, which is typical for a rejection. Song said there could have been a range of reasons.
“I don’t think we can take much stock in the denial of leave as being some kind of comment on the operations of the civil forfeiture office,” Song said.
Tawtel’s office has a staff of about two dozen working alongside a dedicated team of about 10 government lawyers and 10 paralegals who do nothing but civil forfeiture work.
That’s on top of the staff at the province’s asset investment recovery department that manages the auction of most seized items, with the exception of houses.
Tawtel said his office is targeting “property, not people” but acknowledges there is always a power dynamic when someone is up against the government.
“The question is, if there was an innocent explanation, they should be able to bring that to court. And what we see over and over again is (that) there unfortunately is no innocent explanation for $300,000 cash, a kilo of fentanyl, and a machine-gun in a car.”
Jack said the decision by the Supreme Court of Canada doesn’t mean the regime won’t face future challenges.
The government passed amendments to the law this year, including allowing for the creation of unexplained wealth orders which will require people to explain how they acquired their assets if there is suspicion of unlawful activity.
“I’m sure some of them, particularly in the unexplained wealth order sections, I’m sure that they will be challenged,” he said.
This report by The Canadian Press was first published Oct. 28, 2023
