Photo: Castanet Staff
A police standoff at 623 Tomby Court in Feb 2022. The provincial government has been trying to seize the home alleging it was bought with the proceeds of crime.
The provincial government’s attempt to seize a Kelowna home it alleges, without providing any evidence, which was purchased with the proceeds of crime, has hit a roadblock.
In July 2021 the Director of Civil Forfeiture opened proceedings against common-law spouses Gregory Ballentine and Christine McArthur in an attempt to seize the home at 623 Tomby Court and just under $1,800. Two tenants of the property, Jordy Moyan and Desiree Kovacs, were also named in the action.
The lawsuit was filed roughly a month after police raided the home and seized drugs and weapons. It was one of several police responses, and multiple raids, on the property between 2020 and 2022.
The Director of Civil Forfeiture as a part of its efforts to seize the home applied to the BC Supreme Court for an interim preservation order to prevent Ballentine from selling the home or degrading its value prior to trial. He would also be required to get renovations and repairs approved and allow periodic inspections.
Preservation orders are somewhat routine in civil forfeiture cases and the director must meet a “low threshold” to obtain one.
This week a BC Supreme Court justice ruled the director did not meet that threshold, primarily because not a “shred” of evidence to back the claim that the home was purchased with proceeds of crime was submitted.
“That the director could impinge so seriously on the rights of the defendants without providing a shred of evidence to support the contention that the [property] may be proceeds of unlawful activity or an instrument of unlawful activity, is in my view a serious affront to the interests of justice,” ruled Justice Palbinder Shergill.
The director attempted to argue that “a mere assertion of fact” in the civil law suit is enough to warrant granting an interim preservation order, something Justice Shergill found did not line up with case law.
Shergill noted in his ruling that Ballentine purchased the home at 623 Tomby Court without a mortgage in 2014.
“The alleged criminal activity occurred in 2020 and 2021. Even if I was to accept all of the facts that the defendants say are outside of their knowledge as being true, these facts are insufficient to show a temporal connection between the acquisition of the [property] and the alleged criminal activity.”
In his response in August 2021 to the initial civil forfeiture action, Ballentine said his wife, Christine McArthur, “has rented out rooms to various people who seemed to be down on their luck.”
“She is a Good Samaritan who likes to help people,” the response continued, explaining that Ballentine and McArthur have fought about people staying at their home.
Tenants Moyan and Kovacs, who both have drug trafficking convictions, stayed at the property for less than a month and moved out after one of the police raids, said Ballentine’s filing.
“Mr. Ballentine and his wife have no intention of allowing any illegal activities in their home and have taken steps to get rid of all tenants.”
Ballentine says he bought the home with lawful income. He was previously a professor at Okanagan College, and money was lent to him by parents.
The judge did agree to grant a preservation order for just under $1,800 that police seized while searching the home and Moyan’s vehicle. Ballentine and his wife declared no interest in the cash and the tenants did not file court responses.
It remains to be seen if the director will proceed with his efforts to seize the home at trial having not obtained an interim preservation order.
Not mentioned in the legal filings is a police standoff that occurred at the home in February 2022, involving tactical officers, that ended in the arrest of one man.
The Civil Forfeiture Act became law in BC in 2005, and allows the government to seize property that is alleged to be connected to criminal offences. The government can proceed with forfeiture whether or not criminal charges have been laid against an individual. While forfeiture matters are heard in civil court, where the standard of proof is on a “balance of probabilities,” criminal matters are decided on the higher bar of “beyond reasonable doubt.”
