Do you have a question about civil forfeiture? Below we answer some frequently asked questions. If you need further legal advice, or you would like legal representation, contact our Vancouver Criminal L
What is civil forfeiture in Canada?
Civil forfeiture is when a provincial government seeks to forfeit assets that are linked to unlawful activity. If the case is upheld, ownership of these assets is transferred to the provincial government. Where applicable, the proceeds are used to compensate the victims of crime. No recompense is given to the original owner from whom the assets have been taken.
Most provinces in Canada have enacted civil forfeiture, although not all. In British Columbia, the Civil Forfeiture Act was passed in 2006.
What assets can be seized?
Any asset that is proceeds of crime, has enabled the use of criminal activity, or has been purchased with the proceeds of criminal activity, can be seized. Often in civil forfeiture cases, the authorities seize property, such as residences, vehicles or cash.
Often it is alleged that the property is proceeds of crime, or has been used to aid a criminal offence (such as growing marijuana plants), or has been bought with money made through illegal means (such as selling and trafficking drugs).
How does a civil forfeiture case work?
Civil forfeiture cases are brought by the Director of Civil Forfeiture. The first step is for the Director to issue a Notice of Intent, stating it intends to seize your assets. If this happens to you, you have 60 days (or 67 days in some cases) to issue a Notice of Dispute. This must be in writing and made under oath. The Director must then decide whether to proceed. If it does, the case will be heard in front of a judge at the Supreme Court.
A civil forfeiture case is different to a criminal case. If you have been accused of a criminal offence, you may have two cases running at the same time.
What if I am not convicted of a criminal offence?
If you have received a Notice of Intent from the Director for Civil Forfeiture, it is likely you have also been under police investigation and subjected to a search and seizure. However, it does not matter whether you are charged criminally or not – this does not determine the merits of the forfeiture application. Your criminal charges may be dropped, or you may be tried and found not guilty. If so, the Director of Civil Forfeiture can still try to forfeit your assets – even though you have not been found guilty of a crime.
Remember, criminal proceedings and civil proceedings are separate from one another.
What is the burden of proof for civil forfeiture?
When you are tried for a criminal offence, the prosecution must prove beyond reasonable doubt that you are guilty. This standard does not apply to civil forfeiture cases. Instead, the Director must show that on the balance of probabilities, the assets are linked to criminal activity. This is a lower standard of proof. Currently, the burden is on the Director to show that there is a link between the assets and criminal activity.
If the judge agrees with the Director of Civil Forfeiture, he/she must still decide whether any relief from full forfeiture is in the interests of justice.
What if I did not know about the criminal activity?
If you did not know that your property or asset was being used for a criminal activity, the judge may deem that you are an ‘uninvolved interest holder’ or that relief from forfeiture is justified. This might happen if you are a landlord and your tenants use your rental property for criminal activity. However, the Director may argue that you should reasonably have known. If so, you could face the same repercussions, including the partial or total forfeiture of your property.
Ultimately, it is up to the judge to decide whether your property is sufficiently linked to criminal activity, and whether you deserve any relief from full forfeiture.
Is civil forfeiture constitutional?
Ever since civil forfeiture was introduced, there have been concerns about whether or not it is constitutional. The relationship between civil forfeiture and constitutional rights is still evolving. For example, if evidence was collected by police who searched and seized without proper legal authority, this illegal seizure will impact the Director of Civil Forfeiture’s ability to seek full forfeiture of the property.
Questions regarding the implications of violations of an individual’s Charter Rights and civil forfeiture are still being answered by the courts, as the area is developing.
As legal aid is not available in civil forfeiture cases, some people are afraid of pursuing the matter, meaning their assets are readily taken by the Civil Forfeiture Office.
There are also concerns about proposed changes to the Civil Forfeiture Act, which were recently announced by the BC government. Three major amendments have been suggested. One would compel banks to hand over information about a customer. Another would place the burden of proof on the defendant to prove that an asset is not an instrument or proceed of unlawful activity. Many people consider these amendments potentially unconstitutional.
How to fight civil forfeiture?
If you have been told that the Civil Forfeiture Office intends to seize your assets, you need to act quickly. Firstly, you need to issue your Notice of Dispute. If you miss the 60-day deadline, the Director can forfeit your assets without a hearing. If you have not already instructed a lawyer, then now is the time to do so. Your lawyer can prepare your case and argue it at the Supreme Court.
If your case is successful, the judge may order
Vancouver Civil Forfeiture L
There are various ways to fight civil forfeiture. At Mickelson & Whysall, we can recommend that best strategy in your particular case.