Britsh Columbia’s Civil Forfeiture Act (“CFA”) came into force on April 26, 2006. It was based on similar and earlier legislation in Ontario. To date, in excess of $43 million has been “recovered,” going from $600,000 in 2006 to $9.5 million in 2013. The number of forfeiture claims has also expanded from 69 in 2008 to more than 460 in 2013. As of January 2014, there were 550 ongoing cases. An overwhelming number of forfeiture cases (99%) are “settled,” most involving significant “recovery.” A government news release tells us that the “civil forfeiture program is helping to make BC an even safer place to live.” From the provincial government’s perspective, it is a wildly successful program.
The CFA is not without its critics. About all that can be said presently is that it is here to stay so we better get used to it. In that spirit, what follows is a bullet point review of useful information and what the courts have said so far about the CFA:
- The CFA establishes the Civil Forfeiture Office (“CFO”) and creates the position of Director, currently Phil Tawtel.
- A forfeiture claim is an in rem claim against the subject asset, as opposed to an in personam claim against persons with an interest in the asset. The Director must give notice of a forfeiture claim to anyone believed to have an ownership interest in the asset (s. 4).
- The Director has no independent powers of investigation. Files are referred “voluntarily” to the CFO by police agencies and other public bodies such as I.C.B.C.
- The Director may obtain interim and permanent preservation orders (s.8) where it establishes a “serious question to be tried” over whether the subject asset is proceeds or an instrument of unlawful activity. This is often done to create practical and economic pressure to “settle.”
- An asset must be forfeited (s. 5) if the court is satisfied, on a balance of probabilities (s.16), that it is either the proceeds or an instrument of unlawful activity (s. 3).
- Proof of a criminal conviction is proof under the CFA that a person engaged in unlawful activity (s. 17), however an acquittal or the absence of criminal charges does not preclude a finding of unlawful activity (s.18).
- A party may seek relief from forfeiture on various grounds, including the interests of justice (s.6). The factors established to date include proportionality, fairness, the degree of culpability, complicity or knowledge, the nature of the unlawful activity, the need to remove profit as a motive for crime, the disgorgement of wrongfully obtained profits, the need for compensation and prevention of future harm: British Columbia (Director of Civil Forfeiture) v. Rai, 2011 BCSC 186.
- The limitation period for a forfeiture claim is 10 years (s. 35).
- In 2011, the CFA was amended to add Part 3.1 – Administrative Forfeiture of Subject Property. This Part creates an administrative process to deal with the forfeiture of property “the director has reason to believe” has a market value of less than $75,000. Such a claim must be commenced within two years.
- Forfeited assets are converted to cash and paid to a special account (s. 26). The Director then makes payments for its own costs, victim compensation and crime prevention and remediation programs.
- The CFA is constitutional: British Columbia (Director of Civil Forfeiture) v. Wolff, 2012 BCCA 473. It does not infringe the federal powers to make criminal law: Chatterjee v. Ontario, 2009 SCC 19.