WHEN IT BECOMES ILLEGAL TO INSULT

"Sticks and stones may break my bones, but words will never hurt me." So goes an old saying. It was once a child’s mantra - used to negative insults hurled by another child.

In Western democracies it was never illegal to insult someone or something. Laws against insulting the president and their like were restricted to tinpot dictatorships.

But in our Brave New World, "insulting" is gradually being criminalized. It is a phenomena occurring at all levels of government.

Several years ago the Montreal police asked City Council to make it illegal to address them using insulting terms like pig and donut-eater. They reasoned that if the police couldn’t insult members of the public it was only fair that the public couldn’t insult them. "The goal is to encourage respect toward police officers on the beat, especially at night when bars close and during protests", said Yves Francoeur, president of the Montreal Police Brotherhood, the union representing officers. "It's only a question of respect. We have to respect a code of ethics when we deal with citizens, so they have to respect us too."

As specious as this reasoning may be City council seriously considered a bylaw making it an offence to insult the police, pointing out the example of several other towns and cities in Quebec. Montreal definitely was not alone in considering banning insulting, whether restricted to the police or much broader. For example the City of Nanaimo passed a bylaw in 2003 under the ostensible heading "A Bylaw to Prevent and Prohibit Nuisances and Disturbances" which includes the following provision:  3.1 No person shall disturb the peace, quiet and enjoyment of the community by engaging in drunkenness, profane swearing or indecent, obscene or grossly insulting language on a highway or in a public place.

What is meant by grossly insulting. Calling someone a "fat pig"? The by-law doesn’t restrict offences to shouted insults. An insult spoken on the street (a public place) in a normal tone of voice to another person is an offence.

Similarly the City of Brampton has a by-law which reads: By-Law 93-84 "To Prohibit and Regulate Noise" states that: "… a person shall not, within the City of Brampton, make, create, cause, or cause or permit to be made, noises likely to disturb the inhabitants."

The City of Brampton’s website directs people to "call Peel Regional Police to complain about noise from fighting, screaming, shouting, swearing, singing, or someone using insulting or obscene language or other disorderly conduct. These activities may be criminal offences."

Arizona is becoming famous for its laws and practices which neatly disregard civil liberties. The state recently passed the following legislation: "It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use any electronic or digital device and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person. It is also unlawful to otherwise disturb by repeated anonymous electronic or digital communications the peace, quiet or right of privacy of any person at the place where the communications were received."

This legislation takes a law meant to address irritating phone calls and applies it to communication on websites, blogs, list serves and other Internet communication. A group called Media Coalition said in a letter to the State’s governor, Ms. Brewer: "The law is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person."

The government in the Australian state of Victoria introduced legislation making it a criminal offence to "insult" the Gaming Minister Michael O'Brien. Fines of up to $11,945 would be given to anyone found guilty of upsetting the minister and his staff under the extraordinary new offence which make it an offence to "assault, obstruct, hinder, threaten, abuse, insult or intimidate" the minister or authorised persons exercising "due diligence" in monitoring gambling systems such as pokies."

In Europe hate legislation originally introduced after the War to curtail the re-emergence of Fascism has over the years been expanded to make it a crime to insult religion or religious notions. Islamic groups have been particularly vigorous in using the anti-hate laws to quell negative comments about their religion. In 2001, several Danish politicians were convicted under a provision for allegedly making "anti-Islamic" statements. More recently, in June 2010, the Danish crown prosecutor sought to lift MP Jesper Langballe's parliamentary immunity so that he could face charges under Article 266(b) of their legislation simply for publishing an article about the creeping "Islamisation of Europe" and the subjugated status of Muslim women. 

In France the animal rights activist, Brigitte Bardot, was convicted on charges of inciting racial hatred for her criticism concerning the ritual slaughter of sheep during a Muslim feast. Bardot was ordered to pay €15,000, the fifth time she was fined for inciting racial hatred against Muslims since 1997.

France, in fact, is becoming Europe’s poster boy for velvet authoritarianism. There is a new law that makes it illegal for partners to insult each other or threaten physical violence. Under the legislation offenders could face up to three years in prison and a fine of $NZ135,000. The law, which applies to both married couples and cohabiting partners, has been unanimously approved by French MPs.

In the United Kingdom Sec. 18(1) of the Public Order Act of 1986 (POA) states that "a person who uses threatening, abusive, or insulting words or behaviour, or displays any written material which is threatening, abusive, or insulting, is guilty of an offence if: a) he intends to thereby stir up racial hatred, or; b) having regard to all the circumstances racial hatred is likely to be stirred up thereby." Section 5 of the POA makes it a crime to use or display threatening, abusive, or insulting words "within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby."

This extremely low threshold resulted in Christian hoteliers Ben and Sharon Vogelenzang being charged in 2009 (but ultimately acquitted) because they called Muhammad a "warlord". Similarly Harry Taylor, an atheist who placed drawings satirizing Christianity and Islam in an airport prayer room, was convicted in April 2010 under Section 5 and given a six-month prison sentence.

In the last two decades much of the impetus to re-introduce blasphemy laws has originated with Muslims. This does not mean that Christian groups will not try to also make it illegal to insult their religion. Section 36 of the Defamation Act passed in Ireland defined a new offence of "Publication or utterance of blasphemous matter which carried a maximum fine of €25,000. The offence consists of uttering material "grossly abusive or insulting in relation to matters held sacred by any religion", when the intent and result is "outrage among a substantial number of the adherents of that religion. The law was aimed as much as anything at a comedian Tommy Tiernan, whose stand-up routine on a TV program, The Late Late Show, parodied the Gospels.

Interestingly much of new authoritarian legislation it originating from middle of the road, slightly right of centre or slightly left of centre governments, which just goes to show that there are many roads that can lead to a police state.

PATS

Michael Vonn of the B.C. Civil Liberties Association is the province’s most articulate opponent of civil forfeiture. On the other side of the debate is Shirley Bond, British Columbia’s Solicitor-General and Attorney-General. We have previously referred to Shirley as "Big Sister" but perhaps a better description would be "Grand Nanny". A good Nanny state like B.C. obviously needs a Grand Nanny and it would be difficult to find a better one than our Shirley.

Minister Bond recently announced that the Civil Forfeiture Office had realized $10.8 million from seizing cars, homes and helicopters over the last year. She gleefully boasted "With civil forfeiture, bad guys lose twice. Not only do they see the courts taking away tools and proceeds of unlawful activity, which cuts into their bottom line; they also see us use the proceeds to fight and remediate crime in communities."

BCCLA policy director Micheal Vonn responded "To be showcasing the booty of this program should be offensive to many citizens ... because we've seen time and time again, these are not the proceeds of crime."

There was a high profile case last year concerning 13 high-end sports cars allegedly involved in a street race through Surrey and White Rock. The Mounties were not able to show that a particular car was used in a specific crime and did not even recommend Motor Vehicle Act charges against the young (Asian) drivers. Nevertheless through the agency of the Civil Forfeiture Office the government was able to seize and sell off the vehicles -- some worth hundreds of thousands of dollars. Vonn said that punishment was shockingly disproportionate to the alleged crime, and left the door open for the government to apply for all kinds of inappropriate forfeitures. She said."If [Shirley Bond] were to be over the speed limit at any juncture, would she be happy to lose her car for that? Would that suit her? Would she address herself as a bad guy? If you're going to say the jaywalker is a bad guy and he's wearing a $5,000 suit, should we be able to go after it?"

Ms. Vonn asked those questions because the commission of any offence which might be dangerous (to someone), provincial or federal, including any of the myriad of offences under the Motor Vehicle Act, makes the asset, that is used (your car) in the commission of the offence, subject to forfeiture.

One can fully appreciate Michael Vonn’s sarcastic comments about our Grand Nanny. Minister Bond says that what is great about the civil forfeiture process is that you get the bad guys twice. When somebody gets punished twice for the same offense it is called double jeopardy. Double jeopardy is not supposed to be a good thing and it is obvious that Bond is completely ignorant about the legal concept.

But let’s get back to Grand Nanny’s designation of certain people as bad guys. To truly understand what Ms. Bond means by Bad Guys it is necessary to introduce a new acronym. That acronym is PAT which stands for politically acceptable target or in the plural "PATS". 

A former premier of British Columbia who had a driving incident in Hawaii would not be a Politically Acceptable Target (the Civil Forfeiture Act extends to offenses that occur outside of B.C. if it would have been an offense if committed in B.C.). Gaglardi, the highways minister in the WAC Bennett Socred government was famous for getting speeding tickets. It is unlikely, however, that a cabinet minister with a propensity for picking up speeding tickets would ever be a PAT. It’s unlikely that a middle-aged, middle-class, European background lady who makes an illegal right-hand turn would be a PAT.

Juricana had an earlier article about how the (even handed) application of forfeiture could result in the seizure of a pulp mill. But large forest companies are no PATsies.

Now we do not want to introduce the race card into a discussion about civil forfeiture but we can’t help noting some coincidences; for example, that a typical PAT is a rich Asian kid driving a Maserati or an East Indian guy renting out two or three rundown houses waiting to be demolished.

This basically comes down to the problem with the civil forfeiture office. It takes on certain targets who will not garner public support. Criminal code offenses we hope will be prosecuted in a detached and evenhanded manner. This is not the case with civil forfeiture where a small band of bureaucrats in the Civil Forfeiture Office can cherry pick cases and the apply the bad guy branding. The bottom line is that the statute and its huge fines are not applied evenly. The bureaucrats must restrict themselves to Politically Acceptable Targets.

B.C.'s ASBOS

The police are being given more "freedom to act" in B.C. and other administrations.

Take the recent amendments to B.C’s Offence Act.

In October, 2011 Attorney General Shirley Bond proudly introduced Bill 4 - the Offence Amendment Act, 2011 - to the legislature. The government's press release stated that amendments would give the court options for imposing probation, with a wide range of conditions "that are better tailored to reflect offences and offenders circumstances". Key provisions will include giving the court the power to impose probation orders for up to two years and creating an offence for breach of an order.

Section 89.1 says that the justice must include, as conditions in a probation order, that the defendant do all of the following: (a) keep the peace and be of good behaviour; (b) appear before the court as and when required to do so by a justice; (c) notify the justice or a person designated by the justice (i) in advance of any change in the defendant's name or address, and (ii) promptly of any change in the defendant's employment or occupation.

The amended 89.6 says that "A defendant who is bound by a probation order commits an offence if the defendant, without reasonable excuse, fails to comply with a condition in the probation order."

But it is brand new section 89.7 which is most dangerous. It says "A police officer may arrest without warrant a person whom the police officer believes on reasonable and probable grounds is committing an offence under section 89.6." This gives police the ability to arrest a person without a warrant that they suspect is breaching their probation.

One of the differences between provincial offences and Criminal Code offences is the mind boggling breadth of the former. People can commit provincial offences in numerous different ways. Many offences are strict liability; it does not matter if you intended to commit the offence. Two year probation orders combined with a power to arrest without warrant gives the state - with the able assistance of the police - the power to target certain people.

In addition to the myriad of provincial offences municipal by-laws can also be prosecuted under the Offence Act. Municipal by-laws often proscribe undesired "lifestyles" - noise by-laws, unsightly premises, other "unsocial behavior". Do the s. 89 amendments apply to by-laws prosecuted under the Offence Act? Probably. If so, will two year probation orders become a standard part of by-law enforcement? Will municipal enforcement officers work hand-in-hand with the police to arrest and re-arrest people who are not in their favour.

Are the Offence Act amendments the first step towards a B.C. version of the UK’s infamous ASBOS. The Anti-Social Behaviour Orders (ASBOs) were introduced in the UK by the Crime and Disorder Act 1998. They were ‘reinforced

by the Anti-Social Behaviour Act 2003. The 1998 Act defines anti-social behaviour as behaviour that "caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household." They stopped people from doing stated things or going to stated places. They lasted for a minimum of two years, but could last longer. Those given ASBOs could be ‘named and shamed’ in local media, and sometimes were. Orders have been granted for abusive behaviour, vandalism, fly-posting, and harassment as well as more the more celebrated exotic problems such as elderly people incessantly playing gramophones. While ASBOs were civil orders, criminal penalties resulted from breaching them.

Although s. 89.1 has an ASBO like flavour there may be a few "links" that are still needed to introduce to B.C. a full blown equivalent. Can this be far behind? Theoretically B.C. does not have a criminal jurisdiction although its criminal-like remedies are ever expanding. Provincial offences can be punished by up to six months imprisonment and by seizure of hundreds of thousands dollars worth of assets. The essence of ASBOs in the UK was not so much the threat of long prison sentences but the exposure of certain individuals to constant police action, fines and short imprisonment. In the end it was youth who were the primary target of ASBOs. Basically the same "tools" will now be available to police as part of their youth targeting activities like the Bar Watch programs.

In face of widespread criticism ASBOs in the UK were rebranded and perhaps pulled back to a degree. B.C. again rediscovers and introduces something that has had lots of problems when tried somewhere else. Shirley Bond has a roundish, grandmotherly face. She has little understanding of the law. She is probably well intentioned but appears to have no critical appreciation of the potential harm to civil liberties that accompany legislative initiatives likes these changes to the Offence Act. Big Sister Shirley is possibly the most dangerous attorney general in B.C.’s history.

BEST INTERESTS OF THE CHILD

British Columbia recently introduced new family legislation. Shirley Bond, B.C.’s Acting Attorney-General proudly proclaimed: "The legislation we have introduced today marks a milestone in family law in B.C. Most importantly, the Family Law Act expressly states that, when making decisions involving children, the best interest of the child should be the only consideration."

B.C.’s government has a bad habit of thinking that it has discovered the wheel. The ‘best interests of the child" approach has been around for some time. It first gained prominence in the 1970s with the publication of the book Beyond the Best Interests of the Child (Goldstein, Freud, & Solneit, 1973). This book was followed up by Before the Best Interest of the Child in 1979 by Goldstein, Freud, Solnit, & Golstein. It led to best interest of the child specifications in family law legislation in jurisdictions throughout North America and has been a widely used test (with or without legislation) in courts in the U.S and Canada. 

In recent years, however, family law experts and even legislators have begun to resile from pure best interests of the child approaches. 

Firstly there are obvious situations where the "best interests of the child as the only consideration"is probably not good. Take the classical example of a child kidnapping. Jasmine is the daughter of Jill, a 19 year old mother working as a waitress and Jack, a 22 year old guy who has dropped out of university two or three times and likes best to spend his time smoking pot. Jasmine is kidnaped at the age of three months in a seaside park mother when her mother gets distracted by a cute young guy. The kidnapper is a Michelle, a thirtyish woman who has just returned from living overseas with her husband Jim, a stock broker. She had lost her own child in a crib death a couple of months earlier but, emotionally distraught, had not said anything about it to her friends and relatives in Canada. She persuades her husband to go along her compulsive act and her friends and relatives assume that Jasmine is the recently born child of the couple. Jim and Michelle have a child of their own two years later. They are wonderful parents, financially well-off and devoted to their children. When Jasmine is aged 10 the truth about her kidnaping comes out.

By that time Jasmine has powerful attachments to Jim and Michelle and her kid sister. She has a perfect life with her loving parents and all the advantages of affluence. In the meantime Jill has gone from relationship to relationship and but is currently in a relatively stable relationship with Mike, who works as a mechanic. They live in a rented, older townhouse. Jack is still trying to find himself and has never kept the same job for more than six months.

Clearly it would be in the best interests of Jasmine not to be taken away from the kidnappers. Firstly, research in developmental psychology confirms that children need stability and security. They are harmed when they lose their ongoing intimate relationships with those few adults who provide their nurture and care. These relationships of attachment between caregiver and child, are especially important for young children.

Secondly, scientific evidence (and common sense) suggests that financial security is one of the most important factors in the psychological well-being of a child. "Best interests" as the only consideration means that in most cases the judge should probably choose the wealthier parent. Similarly a best interest test rigorously applied (as it should be if it is the sole consideration) will often mean not leaving children with parents who not only have low incomes but also have marginal lifestyles or poor educational skills. With the above scenario it would quickly be game over if the only consideration was Jasmine’s best interest.

In general societal values should have no place in custody decisions if they are not in the best interests of the child. In the famous U.S. case of Palmore v. Sidotti the father, a white man, petitioned for custody of his daughter after his wife, also white, lived with and then married a black man. The Florida court held that it would be better for Melanie to live with her father because living in a racially mixed family would subject her to peer pressure and stigmatization.

The U.S. Supreme Court reversed the decision even though it acknowledged that Melanie could be hurt living in the mixed-marriage situation is a state with deep racial divides. The decision was NOT made on the basis of the best interests of the child and should not have been made on such a basis. The case illustrates why best interests as the ONLY CONSIDERATION is untenable.

In many ways the best interests of the child approach is an outgrowth of the post-Roussean notion that children are borne pure and innocent and become corrupted as they grow up. By the time they are adults they are throw-aways. But adults do matter. Parents also have best interests which should not be excluded. The problem with having adults whose needs are unmet translates into families that continue to fall short of rising to the ongoing challenges of life.

Adult needs don't stop when they have children; they go on and on and being deprived of a child or children has enormous emotional and correspondingly physical consequences. In turn adults' needs - when met - directly influence how they are able to parent and to carry out their job and to participate in the community . In other words a mentally, emotionally, and physically healthy adult is a better parent and a better member of society. Best interests of the child, as the sole consideration, does not recognize the rights of individual adults to establish and/or maintain nurturing relationships with their child and to make decisions that promote not only their child’s goals but also their own goals for a happy and productive life.

WHY BUREAUCRATIC POWER IS A PROBLEM

Bureaucrats and police or people who perform police-like functions are being given increased powers to levy punishments against individuals without having to resort to the courts. This is occurring at all levels of government.

While they do not have the power to jail people, they can levy substantial fines or assess large costs and lien or seize property. The consequence for the individuals who are targeted may often be far worse than a couple of weeks in jail. While police and others have long held the power to "ticket" offenders, in the past the amounts involved were small and it was relatively simple and inexpensive to contest the ticket. This is now changing; the new punishment initiatives are often designed to make it difficult and expensive to contest them.

At the municipal level fines can be huge and almost whimsically imposed. The most infamous recent example in this Province is the City of Mission’s electrical inspection campaign. Based on above average electricity consumption readings a posee made up of by-law officers, electrical inspectors and RCMP came knocking at the doors of Mission residents. It did not matter whether there was a grow-up present; a $5,200.00 fine was levied whenever there were even minor defects in electrical wiring.

Fortunately the mayor of Mission and most of council were deposed in the last municipal election by a slate led by the one councillor who had bravely opposed these tactics.

In Surrey the Arkinstall-Green family refused to allow a four person troop (the usual group of RCMP and municipal inspectors and officers) access to their home. A legal battle ensued which went all the way to the B.C. Court of Appeal which ultimately said that at the very least a warrant is required before authorities can carry out a highly intrusive invasion of people’s home. 

Just as insidious is that municipalities can and will assess enormous costs against individuals in connection with the exercise of various by-law powers. For example, municipalities often have very broad, unsightly premises by-laws. By-law officers make the judgment as to whether or not the premises are unsightly. If compliance is not forthcoming, the City may, by its employees, enter a property and effect the removal of the material at the expense of the person who failed to comply. The assessed costs of cleanup are often very large (far more than that which would be charged by any reputable private contractor) and may be recovered by being added to taxes if unpaid. Ultimately there is a forced sale of property and an individual or family is out on the street stripped of their home.

There is the case from Milwaukee where a gentleman had parked his unregistered van in his own driveway. City zoning ordinances won't let property owners park unregistered vehicles on their own property. The van required some repairs to pass the state vehicle inspection but apparently it was not unsightly nor was it sitting up on concrete blocks with wires hanging out, nor did it have a propped up hood; it merely needed radiator work and was undriveable, The owner was originally fined $50.00 but the fine continued to be assessed over and over again until it reached $1,475.00 at which point the city filed a tax lien. While the owner paid his property taxes, he never paid the $1,475.00 for the zoning violation and the city foreclosed on his clear title $200,000.00 house.

In British Columbia the Office of Civil Forfeiture was recently given further powers. If the amount involved in a forfeiture is under $75,000.00 and it does not concern real property, it is now classified as an administrative forfeiture and the Office does not have to have the Court "confirm" the property seizure. The target (of the seizure) can dispute it but, of course, that entails enormous costs; ironically (I shouldn’t say ironic; it is a quite deliberate outcome of the legislation) the seizure itself invariably removes the target’s financial ability to fight it. Arkinstall and Green spent thousands of dollars fighting the Surrey Troopers but that option is open to very few people and even if the target is vindicated, actual costs will not be recovered.

The age old problem is that when a person or persons are given too much power or there are no checks and balances on the exercise of that power, it gets abused. Bureaucrats are unelected and carry on their activities within a densely constructed, protective cocoon. Most legislation creating bureaucratic power is replete with provisions that limit the liability of officials and which make it virtually impossible to sue for wrongheaded exercises of that power.  

Bureaucrats also bring to the table a certain mentality. Bureaucracies rarely allow for human judgment to interfere with the efficient functioning of the state machinery. They have a presumptive, we-are-always-in-the-right attitude. The bureaucrats in the Office of Civil Forfeiture in B.C. boast that they have never lost a case - they have in fact lost cases at the Supreme Court of B.C. level but then with their virtually unlimited resources they have been able to appeal to the Court of Appeal. 

Social democrats can not understand the logic of the anti-government attitudes often prevalent among blue collar people. There is, however, a validity to these attitudes. Government officials quickly learn that when they mistakenly target the wealthy, they usually lose and lose embarrassingly. Consequently they typically pick weak targets; the poor, the uneducated, the unsophisticated, the misfits and the eccentrics.

BIG SISTER, SHIRLEY BOND

There is a disturbing trend in Canada towards highly authoritarian legislation which runs roughshod over traditional civil liberties. This new legislation, however, is not originating with left-wing or right-wing governments but rather from the so-called middle - the new Big Brothers in B.C. and Ontario (or more properly, in B.C., Big Sisters) both have a big L "Liberal" name tags.

An incident in May of 2011 epitomizes the new illiberal mentality. Some young drivers in British Columbia had their vehicles impounded after what Royal Canadian Mounted Police allege was a street race on a provincial highway in suburban Vancouver that reached speeds of 120 mph (200 kph). Police put the total value of the vehicles at $2 million. Police fined each of the drivers, 12 men and one woman all under age 21, $196, but lacked evidence to pursue more severe sanctions, they said. They immediately "seized" upon so-called civil forfeiture. Five of the vehicles were made the subject of proceedings under the Civil Forfeiture Act.

In British Columbia the sweet face of this authoritarianism is Big Sister, Shirley Bond, an ex-school teacher who at the present time is the combination Attorney-General-Solicitor-General in the Illiberal Government. "We are going to pursue forfeiture of five of the vehicles." she boasted. She justified $100,000.00 forfeiture for offences which the legislature has deemed to be punishable with a $196.00 fine with these words "We expect people to behave responsibly on the highways. I think it's important to send a very strong message that this kind of behaviour is not going to be tolerated."

Of course. That is why there are various Motor Vehicle Act offences such as for speeding. There are also motor vehicle offences for making unsafe left hand turns, for driving too slowly, for following too closely, etc. These offences also lead to motor vehicle collisions and should, given the Bond reasoning, also lead to civil forfeiture in order to protect public safety.

Michael Vonn of the B.C. Civil Liberties Association said that this vehicle seizure marked the latest in a series of troubling examples of forfeiture claims made by the B.C. government. She pointed out that the civil justice system requires a different standard of proof entirely, and the criminal benchmark of "beyond a reasonable doubt" doesn't come into play. And unlike in criminal cases, people involved in civil lawsuits do not have the right to legal aid. She said that the Civil Forfeiture Act is being used as an end run around the criminal process.

Is she correct? You judge by the following:  "After speaking to witnesses and gathering information, police determined there was not enough evidence to proceed with criminal charges," Superintendent Norm Gaumont, head of Traffic Services for the RCMP in the Lower Mainland, said in a press release. "With the criminal avenue closed to us, we decided to see if there was enough evidence to proceed civilly."

Vonn notes that the B.C. public was misinformed when the government brought in legislation allowing civil forfeitures. She says the understanding was that the law would allow the government to seize the proceeds of organized crime.  "When this law was brought in we were told ... this would be all about gangs," she said. "[These recent cases are] not what people think about at all when they think about the fruits of crime."

She points out that the criminal justice system does allow for seizures of property connected to crime -- as long as the accused person has been found guilty. "We're not opposed to the idea of criminal forfeitures," Vonn said. "There's no civil right to maintain the fruits of crime."

Bond displayed her phenomenal ignorance of the Act when she promised "that the cars' owners will have a fair shake in court." The legislation precludes a fair shake in the Courts, Shirley.

STEALING YOUR CLAIM, PART 1

The Health Care Costs Recovery Act effectively permits the state to steal an individual’s claim.

How so?

The Health Care Costs Recovery Act applies to all personal injury claims other than claims arising out of certain motor vehicle accidents and Workers Compensation claims. While it does not apply to injury claims brought against wrongdoers having basic coverage under the Insurance (Vehicle) Act, claims against auto policies other than ICBCs basic coverage likely will be affected.

It does apply to slip and fall claims including even claims that fall within the jurisdiction of the Provincial Court; that is, where the amount involved is under $25,000.00.

A claim for health care services must be added to every statement of claim where there is a claim "against a person alleged to be a wrongdoer for damages arising from or related to ... personal injury or death". This is not a claim for damages that might have been previously incurred (or to be incurred) by the litigant but instead is a claim for public costs. These ‘public costs" would not in the past have been included in a damage award because they are not costs of the claimant. 

A beneficiary and his or her personal or other legal representative must cooperate fully with the minister and the government and their agents and legal counsel in the government's recovery of past and future costs of health care services under this Act in respect of that beneficiary. Section 11 goes on to impose numerous duties and requirements on the beneficiary including "at the request and expense of the minister and as often as the minister considers necessary, do one or more of the following: (i) "allow a health care practitioner selected by the minister to examine the beneficiary" (ii) "allow any evaluation required by the minister to be performed by a person selected by the minister" and (iii) "provide to the minister" ... "a report, in any form required by the minister concerning "the nature and extent of the beneficiary's injury, "the treatment, current condition and prognosis of the injury" and "any other aspect of the beneficiary's injury or rehabilitation".

The legal proceeding must not be discontinued or dismissed by consent unless the consent of the minister is filed with the court (Section 5). At least 21 days before a beneficiary or his or her legal representative enters into any settlement relating to the personal-injury, the beneficiary or legal representative must give notice to the Minister in the prescribed form and in accordance with the regulations. (Section 12). The claim against a person alleged to be a wrongdoer can not be settled unless the person who would be liable to make payments under the proposed settlement gives to the Minister notice of the proposed terms of settlement and the Minister consents in writing to the proposed settlement (Section 13). 

The government has the right to intervene in the litigation or step in and take over the healthcare services claim portion of the proceeding (Section 6).

There are ameliorating provisions. The government must indemnify a beneficiary or his or her personal or other legal representative for expenses reasonably and necessarily incurred by that person in complying with section 11(1) and (2)(a) and the beneficiary’s claim has priority over the government’s.

How would this affect a slip and fall claim. Lets suppose the Plaintiff is a 78 year old lady who has slipped on a banana peel on the floor of Good Prices Supermarket. A claim for health care services must be added to the Plaintiff’s claim although it is of no benefit to the Plaintiff. The Crown is given notice of this claim made on its behalf and from then on has an interventionist role in the process and as discussed above the case can not be settled unless the Crown approves. The Crown will not approve any settlement unless it gets its two pennies - the cost of any healthcare received by the Plaintiff.

These requirements will necessarily make the whole litigation process much slower and more onerous. This particular third player, i.e government, is notorious for not moving quickly. Files will inevitably linger on someone’s desk in the bureaucracy. Typically government officecrats are reluctant to agree readily to a result; there is a systematic tendency not to say yes until every "t" is crossed and every "i" dotted - two or three times. This will particularly be the case If the plaintiff is elderly and the full extent of public health costs arising out of incident are somewhat indeterminate. Repeated requests will be made for the information and reports referred to in section 11. A year or more could be added to the settlement process.

The Plaintiff and her lawyer are in effect required to make the Crown a client. To some extent the government will be a freeloader since it is unlikely that the government will readily concede that those "expenses reasonably and necessarily incurred by that person in complying with section 11(1) and (2)(a)" will extend to all the additional costs incurred by the Plaintiff as a result of Big Brother’s presence in the law suit. The amount that is required to be paid to the Crown will also have the inevitable effect of lowering the amount paid to the Plaintiff, notwithstanding the stated priority of the Plaintiff’s claim. That is just the way things work.

The Civil Forfeiture Act also steals a victim’s claim but in a different and nastier way - that will be the subject of another blog.

B.C. LAWYERS ARE PATHETIC WIMPS

B.C. lawyers are pathetic wimps.  There has hardly been a ripple of opposition from them to authoritarian and controlling legislation such as the Civil Forfeiture Act and the Health Recovery Cost Act.   

There are only five lawyers in the B.C. legislature and the current Attorney-General is the Stepford-like, Shirley Bond whose educational background is an arts and sciences diploma from the College of New Caledonia.  But it does not matter if she does not have a law background.  The legislation that rolls out of the Attorney-General’s Office is written by bureaucrats with little input from cabinet ministers, let alone MLA’s who in a provincial Canadian legislature are not much more than adornments.

There is an accelerating trend of taking the administration of law out of the hands of lawyers and the courts and giving it to tribunals, to the police and perhaps worst of all, to specialized bureaucracies such as the Office of Civil Forfeiture.  The 2011 amendments to the Civil Forfeiture Act have made that legislation ever more one-sided.   A new part (Part 3.1) has been added.  It creates what is egregiously called “administrative forfeiture”.  The Office of Civil Forfeiture does not have to initiate legal proceedings to effect forfeiture if the amount involved is under $75,000.00.  The Office can seize property simply if it has “reason to believe” it is the proceeds or an instrument of crime.  

The so-called administrative forfeiture provision reverses the litigation process - it is the owner who has to take the government to court to get his property back.  An administrative forfeiture can be opposed by the owner of the property but if a notice of dispute is not filed within sixty days the forfeiture process is over.  The reality is that the owner has to initiate the expensive legal proceedings required to defend his property.

The legal profession should be outraged by such unfair, process evading legislation but the response has been a dismaying silence.  The only organization that is fighting civil forfeiture in this Province is the B.C. Civil Liberties Association.

Sadly the litigation of disputes is increasingly been hijacked by bureaucrats. What was once a process which was mostly hands off is now micro-managed and it is the judges who are playing the role of chief bureaucrats.  This process management has been justified on the basis that it will facilitate settlement and reduce costs but it is not doing either.  All the additional court appearances and all the additional paperwork has dramatically increased the costs of litigation and the omniscient bureaucracy has if anything made settlement more difficult.

Again what kind of response do we see from the legal profession.  Virtually nothing.

Part of the problem is that the A.G. bureaucrats have a social worker perspective. Clients are people whom you control; you don’t seek direction from them; you don’t advocate their cause.   These functionaries do not understand the adversarial system.  In fact, they want to get rid of the adversarial system and replace it with something where there is an engineered resolution of conflict.

Why are B.C. lawyers so passive in the face of these fundamental threats to our legal system?  To some extent lawyers are economically motivated - the additional process means more excuses for billable hours.  Law firms now run large in-house publishing firms which can also be financially lucrative.   

But perhaps lawyers are just zombied by the treadmill of life.   Always behind, always rushing to keep up.  In any event they have abandoned any pretense at being champions of civil liberties and due process.

FORFEITURE OF A MOTEL

One of the most egregious (and now famous) civil forfeiture initiatives in the United States concerns a budget motel in Tewksbury, Massachusetts. 

This motel has been owned and operated by the Caswell family for two generations. The Caswells have paid off the motel’s mortgage in full and look after the business while living next door with a 91-year-old mother, their son and daughter-in-law, and granddaughter.

Both in the U.S. and Canada old motels - mostly built in the 1950's - have become a form of last resort housing for the down and out.  Sometimes they become homes for drug users and dealers. 

This happened to a minor degree with the Motel Caswell.  The owners co-operated as best as they could with the police but not all tenants were sterling citizens.  There was a small amount of illegal drug use and drug dealing taking place in the rented rooms of this budget motel.

In jumps the Tewksbury police who invited the Feds to adopt a forfeiture action under a so-called "equitable sharing" program.  The Federal equitable sharing program apparently has resulted in an expansion of civil forfeitures because local police often get to keep a higher percentage of forfeited proceeds and the federal government’s standards of proof are more lax than forfeiture proceedings in states like Massachusetts.  

So a money making opportunity beckoned.  The result of a successful forfeiture respecting this mortgage free motel will be that the Tewksbury police will reap a million plus dollars and the Feds the balance of sale proceeds.  The Caswells will be left with nothing. 

There is no evidence that the Caswells had any knowledge of any criminal activity taking place at the motel but like with the B.C. Civil Forfeiture Act that does not matter.  They have been forced to fight an enormously expensive forfeiture proceeding.

Old motels in B.C. have also been threatened with forfeiture proceedings.  This is despite the fact that the addicted people who are living in these places are often referred there in the first place by the police and social workers.

In the Caswell case the local police resorted to Federal legislation in order to avoid the more stringent Federal legislation.  It is the opposite in British Columbia where the provincial government uses the Civil Forfeiture Act to circumvent the much more stringent forfeiture type provisions in the federal Criminal Code.

The irony is that while government is cracking down on privately owned houses and motels where illegal drug use is taking place, they are spending millions to create their own version of the same thing.  They are called low barrier housing projects.  Low barrier means that continued drug and alcohol abuse is not a barrier to living in these developments.  Projects like Warmlands in Duncan elicit the usual high volume of police call outs.  

The City of Victoria now owns and operates several former motels and cater to the same type of tenants - mostly drug addicts.  These “facilities” are the subject of numerous police call outs and are upsetting to neighbors.   They are demonstrably no better than the old Holiday Court Motel on Hillside Avenue in Victoria which was closed down several years ago because it was heavily used by users and dealers.

What its shows is that government doesn’t mind addiction - whether it is drugs, alcohol or gambling - so long as it is controlling it and, even better, profiting from it.  

FORFEITURE OF VEHICLES IN B.C.

Don’t speed in British Columbia. They will take your car away. 

You aren’t worried. You don’t drive a $225,000.00 Ferrari and you are not Asian. You are probably safe. Maybe.

What has been most egregious about B.C.’s Civil Forfeiture Act is that it is selectively enforced. Not every speeder in B.C. will lose their vehicle, especially if it is an old beater. If speeding equaled forfeiture for ALL B.C. drivers, there would be a major political problem for the governing Liberals. But if the speeder is young Asian guy driving an extremely expensive car, it is a different story. 

The salivating comment of B.C. cabinet minister,. Rich Coleman, after seizure of the $225,000.00 Ferrari and a $65,000.00 BMW was "These are probably the most salacious vehicles we’ve seized." 

The drivers would have been subject to Motor Vehicle fines of less than $200.00.

The point made by the B.C. Civil Liberties Association is that the Civil Forfeiture Act is an end run around the Criminal Code. Both these drivers could have been charged criminally but they weren’t. There is a different standard of proof. The Civil Forfeiture Act says so. Pursuant to s. 16 of the Act, the standard of proof for both the Director and a Defendant is a balance of probabilities.

The posts on newspaper articles on the vehicle seizures overwhelmingly support forfeiture. There is no doubt an element of racism underlying this; it also reflective, however, of the appalling ignorance and blindness of Canadians when it comes to civil liberty issues. What a lot of these posters don’t comprehend is that when governments violate civil rights, there aren’t necessarily nice, clean boundaries that always exclude "innocent, law-abiding" people like themselves.

That is because civil forfeiture can be a consequence of the commission of any of the many offences under the Province's Motor Vehicle Act.  You do an illegal left hand turn (jumping into the far lane) and your vehicle is subject to forfeiture just as much as that of a young Asian guy engaging in street racing. Once governments discover a revenue stream there is an irresistible urge to drain it.