By Kim Bolan – vancouversun.com
The B.C. Court of Appeal has temporarily set aside part of a B.C. Supreme Court ruling earlier this year that said sections of the provincial civil forfeiture act are unconstitutional.
In June, Justice Barry Davies agreed with lawyers for the Hells Angels that parts of the act that allow for property to be seized based on possible future criminal use should be struck down because they fall outside of provincial jurisdiction.
Davies also sided with the Hells Angels over whether three of their clubhouses in Vancouver, Kelowna and Nanaimo should be forfeited to the B.C. government as instruments of criminal activity.
He said that the director of civil forfeiture had not proven that the clubhouses “play an important role in enabling and empowering members of the Hells Angels to engage in serious crime for financial gain.”
In July, the B.C. government filed two separate appeals in the case. The attorney-general is appealing the finding that the act is unconstitutional, while the director of civil forfeiture appealed the decision against forfeiting the clubhouses.
On Wednesday, Appeal Court Justice Patrice Abrioux agreed to stay the parts of Davies’ ruling about the act, pending the outcome of the appeals.
He cited an affidavit filed by Phil Tawtel, the director of civil forfeiture, which said some of the approximately 200 active forfeiture cases currently before B.C. Supreme Court would be affected unless the stay was granted.
Defendants in those cases could take action based on Davies’ ruling and before the appeal is decided, forcing the civil forfeiture office to spend more on those cases in the interim, the affidavit said.
“Accordingly, in the event the applicants were successful on appeal, resources spent in conducting proceedings in a compromised setting will have been wasted,” Abrioux summarized in his ruling.
Lawyers for the Hells Angels had argued against the temporary stay, saying the government had “not demonstrated irreparable harm and that the balance of convenience lies in their favour.”
But Abrioux said “that the balance of convenience favours the applicants and the interests of justice warrant that the stay as sought be granted pending the release of the reasons for judgment on this appeal.”
Factums laying out both sides’ arguments in the appeal must be filed by Dec. 11, Abrioux said.
The appeal is set to be heard in 2021.
Davies also ruled in June that the government agency had not provided enough evidence that the Angels were an international criminal network.
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“The director has not proven that the Hells Angels is a worldwide criminal organization,” Davies said. “Although the evidence adduced does establish that many members of the Hells Angels in British Columbia and Ontario have committed serious criminal offences, there is a paucity of admissible evidence concerning such criminals offending in other jurisdictions.”