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Punishment through confiscation

By | National Post on Jun 13 2016

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Why is the public becoming increasingly skeptical about the use of civil forfeiture? Maybe people are realizing that the government can — and does — use the sledgehammer of forfeiture laws when other, more carefully crafted laws would be a better fit.

Case in point: the Globe and Mail recently reported on Bob Milligan, the owner of a British Columbia outfitting company. B.C.’s Civil Forfeiture Office targeted Milligan, based on its contention he committed eight violations of the Wildlife Act and the Land Act. The penalties for violating these acts are relatively minor. But the forfeiture office didn’t seek the moderate fines specified by the acts; instead, it tried to take away Milligan’s guide territory certificate, which the Globe describes as “one of the largest and most valuable” in all British Columbia.”

We don’t know the exact dollar value of the certificate. We do know that the consensus places its worth in the millions of dollars range. And we know that Milligan requires the certificate to make his living.

Milligan denied seven of the eight offences he was alleged to have committed; the eighth was a transgression that sounds like the back-country equivalent of a minor traffic offence: one of his employees unwittingly drove his snowmobile 200 metres into a restricted area.

But even if Milligan were guilty of all the offences with which he was charged, the B.C. government’s decision to try to seize a multi-million-dollar asset from him in response seems … a bit much. As Scott Ellis, executive director of the Guide Outfitters Association of B.C., told the Globe, “There are penalties and a mechanism under the Wildlife Act that justly handle Wildlife Act infractions.”

So why not use those tools, which were specifically designed to be relevant and proportional to the offences committed? Why move directly, instead, to civil forfeiture and claim that the guide territory certificate is an “instrument of crime” that must be taken from Milligan and sold, with the proceeds going directly to the provincial government?

The fact that no formal charges or convictions are needed for the latter course certainly has something to do with it. But it’s also hard to imagine that the value of the asset didn’t play a role. After all, what Crown lawyer wouldn’t be tempted by the proposition of acquiring millions of dollars for the home team, without even having to go through the trouble of a prosecution?

Some may say that at least government still has to win its civil forfeiture trial in court to get the money. Except that actually, it doesn’t. Like so many other people whose property has been targeted for civil forfeiture, Milligan eventually chose to settle with the province in a confidential agreement for an undisclosed amount. It’s not that he thought the government was right. It’s just that at a certain point, paying massive legal bills for the privilege of risking millions of dollars of his own money in a process that seemed to drag on and on just stopped making sense.

“I didn’t want to (settle),” Milligan told the Globe. “My lawyer talked to me until he was blue in the face. He said, ‘It’s all about counting beans, Bob. It’s not about principle. When you do it on principle, it costs you money.’ ”

Milligan made the logical choice. As a parent and spouse, he did what he had to do to protect what he could of his money and get the best outcome for his family in a truly unfair situation. I would have done the same thing; as would almost anybody who was backed into the same corner, even if he were completely innocent. And B.C.’s Civil Forfeiture Office knows it. That’s why initiating a forfeiture action is about as risky for the government as offering slot machine bets is for a casino.

Those aren’t incentives that are likely to lead to justice. So maybe the real question here isn’t how this wrong could have befallen Bob Milligan, but rather how many more Bob Milligans are out there? And what has the cost been to our rights?

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