Sunday, 27 November 2011


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.

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