VANCOUVER — An alleged Vancouver Island drug trafficker acquitted this year because police violated his Charter rights is now the subject of a civil forfeiture lawsuit.
The director of civil forfeiture filed the suit against Mill Bay resident Frank Whitton last week, trying to get more than $18,000 seized from him during a 2014 investigation forfeited to the government agency.
In April, a B.C. Supreme Court judge acquitted Whitton on drug trafficking and firearms offences, saying West Shore RCMP had breached his constitutional rights several times during their investigation.
Justice Brian MacKenzie also said there was “little doubt” that Whitton was in fact involved in drug trafficking, despite the botched investigation that led to the evidence being thrown out.
MacKenzie ruled that to use the evidence seized after police omitted information from their search warrant applications “would bring the administration of justice into disrepute.”
“The overall manner in which the evidence in support of the warrant was presented in this case raises significant concerns respecting the basis upon which the warrant was obtained,” MacKenzie said.
“After considering the totality of the circumstances and the overall magnitude of the Charter violations in this case, I have been persuaded that the admission of the evidence found as a result of the … searches would bring the administration of justice into disrepute.”
In an earlier ruling, MacKenzie also said that police violated Whitton’s rights when he was first arrested in April 2014.
The same evidence excluded in the criminal case is cited in the lawsuit by the director of civil forfeiture, filed Oct. 18.
The suit said Whitton was stopped by police on April 24, 2014, “after making several suspected illegal drug transactions.”
Police found 66 spitballs of cocaine, 18 baggies of marijuana and three cellphones in his vehicle, the suit noted.
Later that day, police executed a search warrant at his Mill Bay house and found 331 marijuana plants and 5,346 grams of dried marijuana in bags.
They also found an SKS rifle, a restricted Sig Sauer 9 mm handgun, a prohibited 27-round magazine, ammunition, pepper spray and body armour.
More marijuana, cocaine, heroin and cash were found at a second residence searched that Whitton had been seen visiting.
Whitton was arrested again in November 2014 and police found more cocaine and pot packaged for sale, as well as more than $5,000 in cash.
The lawsuit said that Whitton filed a “notice of dispute” on Sept. 28, 2018, claiming an interest in the money seized four years earlier. But the director said the cash should not be returned to him, as it is “proceeds and an instrument of unlawful activity.”
“Mr. Whitton did not have legitimate income to have acquired the money,” the suit said. “Mr. Whitton obtained the money by participating in the unlawful activity.”
Whitton has not filed a response to the lawsuit.
In the April ruling that resulted in Whitton’s acquittal, MacKenzie also said the public would lose confidence in the judiciary “if criminal trials are permitted to proceed on the strength of evidence obtained from the most private place in the home on the basis of misleading, inaccurate, and incomplete information upon which a search warrant was issued.
“Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices,” MacKenzie said.
