Tuesday, 25 October 2011
FORFEITURE OF A MILL
Let’s consider the following fact pattern.
Four counts under the Waste Management Act , S.B.C. 1982, c. 41, a provincial offence, were laid against the owner of Big Pulp Mill.
The evidence was that liquid material made its way from the pulp mill through a series of treatment ponds until, because of the failure of a discharge pump, large quantities of the liquid spilled out of the last of the ponds, the polishing pond, onto a swampy area which was a protected nature reserve. The liquid material was highly toxic and there was a considerable toll on wildlife - dead birds, fish, small mammals as well as vegetation kill. There is a popular nature path around the swampy area and a couple of people experienced nausea because of a toxic gas coming from the liquid waste. According to one health officer who gave evidence at the trial the gas was toxic enough that under the right circumstances it could have been fatal.
It was purely an accident but because it is a strict liability offence the trial Judge convicted the owner of Big Pulp Mill on all four counts.
All the necessary elements are here for a successful forfeiture of Big Pulp Mill under B.C.’s Civil Forfeiture Act.
The Director of the Office of Civil Forfeiture can apply to the court for an order forfeiting to the government the whole of an interest in property that is proceeds of unlawful activity. Is the mill "proceeds of an unlawful activity?" The 2011 case of British Columbia (Director of Civil Forfeiture) v. Rai is instructive in this respect. Three properties, that were owned by defendant Rai but rented to persons not known to him, were used to house marijuana grow operations. Rai was never charged with a crime and had no personal or direct involvement in any of grow operations, and obtained no cash from any unlawful activity. Nevertheless it was held that he did obtain proceeds of unlawful activity in the form of the total of $24,000 in rent (rent was $800.00 per month per house which is certainly low by Vancouver standards) which was presumably used to reduce his mortgage debts. The Rai case established an extremely low threshold to meet the "proceeds of unlawful activity" test.
The mill is no different than Rai’s house - the activities that gave rise to the offence makes money that is used to pay debt obligations.
The Director (of the Forfeiture Office) may also apply to the court for an order forfeiting to the government property that is an instrument of unlawful activity. "Unlawful activity" is defined as an act or omission that is an offence under a federal or British Columbia statute. Section 17(2) says that proof that a person was convicted of an offence that constitutes an unlawful activity is proof that the person engaged in the unlawful activity.
Was Big Pulp Mill an instrument of unlawful activity? The Act says an "instrument of unlawful activity" can mean "any of the following: (a) property that has been used to engage in unlawful activity that, in turn, (i) resulted in or was likely to result in the acquisition of property or an interest in property, or (ii) caused or was likely to cause serious bodily harm to a person; (b) property that is likely to be used to engage in unlawful activity that may (i) result in the acquisition of property or an interest in property, or (ii) cause serious bodily harm to a person."
The mill was used to engage in unlawful activity; that is established by the conviction and can not be contested. Was this an unlawful activity that resulted in or was likely to result in the acquisition of property or an interest in property? It is submitted that the Rai case also establishes a low threshold test for "likely to result in the acquisition of property or an interest in property". The unlawful activity of the mill was an activity of the mill which results in a product which is sold and allows the owner to acquire property be it supplies or equipment or money.
Additionally is the release of a noxious substance any less likely to cause serious bodily harm than racing an expensive car down a highway? In subsection (b) of the definition there is an even lower standard - "may .... cause serious bodily harm to a person.
So there are several solid arguments based on the Act that the Big Pulp Mill must be forfeited to the government. Of course, when a bureaucracy like the Office of Civil Forfeiture can pick and choose its targets at its absolute discretion, it will not apply for the forfeiture of a pulp mill. Too tough a target. Likelihood of political opposition from the rich and powerful. Easier to go after the expensive cars of a bunch of young Asian guys or the childhood house of a down and out drug addict.