“Some people may not be sympathetic to my clients, but the case has implications for a whole lot of other people,” said Arvay. “I think it is an important case with important issues.”
The case is expected to be a definitive one. It delves into key issues surrounding the act, including B.C.’s unsuccessful attempt to have the courts declare the Hells Angels a criminal organization.
The B.C. act allows the director of forfeiture to take civil court action against property deemed to be proceeds of unlawful activity or an instrument of unlawful activity. In 2011, the act was amended to allow the director to take administrative action — rather than civil action — against property valued at $75,000 or less that is not real estate.
Courts in both Ontario and Quebec have declared the motorcycle club a criminal organization, however, B.C. has not yet been successful although a case involving Kelowna chapter members is before the courts with members facing criminal organization counts. The seizure of the Vancouver club house resulted from a targeted police initiative to get the courts to declare it a criminal organization.
“The police spent an enormous amount of resources trying to prove this was a criminal organization. They failed to do so and have now resorted to the civil process,” Arvay told Legal Feeds, adding the problem with the civil forfeiture law is it allows for circumvention of a criminal due process system that has taken 100 years to evolve.
“Civil forfeiture laws allow the government to do indirectly what it cannot do directly and that is to prove crimes without affording to those most directly affected all of the basic protections that the criminal law and process properly requires. In our view, this legislation is beyond the powers of the provincial legislature and contrary to the Charter of Rights and Freedoms,” he said.
B.C.’s director of forfeiture filed to take possession of the Nanaimo property following an investigation in 2001-2002 by police (although no charges were laid), the Kelowna property in November 2007 and the Vancouver East End property in November 2012.
A total of 21 Hells Angels members are named in a Supreme Court of B.C. forfeiture action as defendants having interests in the clubhouses. Only six of them are listed as plaintiffs in the counterclaim filed by Arvay.
The statement of claim filed by Arvay says in June 2003, the RCMP started Project E Pandora, an operation that used an undercover operative, wiretaps, and surveillance on the East End chapter of the club with the intent of establishing it as a “criminal organization” under s. 467 of the Criminal Code. Project E Pandora, which ended in 2012, led to criminal charges of members in 2005 but all individuals charged under s. 467.12 were later acquitted.
The notice of civil claim filed by the director alleges the Hells Angels is a criminal organization within the meaning of s. 467.12 of the Criminal Code and the East End clubhouse was the proceeds and instrument of crime including offences relating to drugs, extortion, murder and manslaughter.
Arvay’s counterclaim states that the director was able to use information from police that would not be admissible in court and specifically, the act enables the director to prove crimes “on the balance of probability” and also compel individuals to testify in pre-trial or trail proceedings “and to incriminate themselves”.
Arvay is asking the court to dismiss the action against the three clubhouses on the basis that B.C. does not have right to infringe upon criminal law and secondly, the individual’s rights as guaranteed by s. 7 and 11 of the Charter of Rights and Freedom. In the counterclaims, Arvay is arguing these provisions provide a “guarantee not only a right against self-incrimination but the right to be presumed innocent.”
“This legislation should trouble everyone and not just our members. Governments everywhere are now routinely using these ‘civil forfeiture’ laws as a substitute for the criminal process. Most people seem to just cave when faced with these forfeiture lawsuits. It is just too expensive and stressful to fight back when faced with the resources of the state. We aren’t going to do that and our fight will be for all British Columbians,” said Rick Ciarniello, president of the Vancouver chapter of the Hells Angels, in a press release.