Civil Forfeiture refers to government confiscation of assets that are either the alleged proceeds of crime or the alleged instruments of unlawful activity. Instruments of unlawful activity refers to property that was allegedly used to facilitate crime, for example a home used in the production of marijuana. In recent years there has been a growing trend towards civil forfeiture and such proceedings may be brought in various Canadian Provinces.
Civil forfeiture allows the government to apply to the courts for orders to restrain or forfeit assets acquired through, or used to engage in, unlawful activity. As the name “civil forfeiture” implies, applications are made through the civil law process and the civil standard of proof (balance of probabilities) applies. Applications are not reliant on criminal charges or convictions. In BC, the burden of proof rests on the Director of Civil Forfeiture and all applications under the Civil Forfeiture Act are made in B.C. Supreme Court.
Civil forfeiture lawsuits are filed against the property itself, not the owner or the person in possession of the property. The court decides whether or not the property should be forfeited. A civil forfeiture lawsuit does not target any person and there is no ruling of “guilty” or “not guilty” as there would be in a criminal proceeding. Anyone who claims to have an interest in the property is given the opportunity to respond to the lawsuit, but there is no criminal penalty or sanction against them whether or not they choose to participate.
The lawyers at Mickelson & Whysall will aggressively pursue the protection and return of your property.
Administrative Civil Forfeiture
The civil forfeiture provisions allow the BC government to attempts and forfeit your property through Administrative Forfeiture. This involves using an administrative process to forfeit the alleged instruments and proceeds of unlawful activity. Administrative forfeiture proceedings involve only property rights. This is separate process from the criminal law proceeds-of-crime provisions under the Criminal Code.
The administrative forfeiture process begins with a ‘Notice of Intent to Initiate Administrative Forfeiture of Subject Property’. The notice can be sent to you by way of a letter or by publishing notice in a newspaper or the B.C. Gazette. The administrative forfeiture process is time sensitive and it is important not you do not miss the deadlines. If you wish to dispute the administrative forfeiture of the subject property your ‘Notice of Dispute’ must:
- be post-marked on the lesser of: 67 days from the date the ‘Notice of Intent’ letter was post-marked; or
- 60 days from the date it was actually delivered to you.
If the intended administrative forfeiture has come to your attention as a result of reading a published notice in the newspaper or by reading a publication in the B.C. Gazette, your ‘Notice of Dispute’ must:
- be post-marked: no later than 60 days after the day the notice was first published.
The Notice of Dispute, must be in writing and under oath which, means that the information in the Notice of Dispute document must be sworn in the presence of a lawyer or a Commissionaire for taking Affidavits.
If the Notice of Dispute is filed the Director of Civil Forfeiture has 30 days to either:
- start a law suit in the British Columbia Supreme Court seeking the forfeiture of the property; or
- to withdraw from the proceedings.
If no dispute is received or it is completed improperly, the property is forfeited to the Government without further notice. Mickelson & Whysall can facilitate the Notice of Dispute process for you to ensure that you dispute is properly registered.
For further information or for a free initial consultation, please contact our Vancouver law office.