In April 2006, B.C.’s Civil Forfeiture Act (“CFA”) came into force. Seven Canadian provinces now have similar legislation.
The CFA provides a mechanism for the government, through the Director of the Civil Forfeiture Office, to seek the forfeiture of the “proceeds of unlawful activity”. Forfeiture is ordered by the Court when it is proven that property is either the instrument or the proceeds of “unlawful activity”. The standard of proof is a balance of probabilities, significantly lower than the criminal standard of proof beyond a reasonable doubt. Proof of “unlawful activity” can be established even where there is no criminal conviction or charges. It can also be proven despite the acquittal of an accused for the suspected offence. This result can arise because of the differing standards of proof: similar to O.J. Simpson’s criminal acquittal for his wife’s murder and the subsequent finding of his civil liability for her death.
Funds realized through forfeiture are paid into a civil forfeiture account. They are spent to compensate victims, prevent and remediate unlawful activities and “other prescribed purposes”.
To date, the civil forfeiture program has been wildly successful. Nearly $17 million in proceeds have been forfeited in the 250 cases sent to court so far. In fact, the government has yet to lose a case. Examples include the forfeiture in January 2011 of a home in Vancouver’s West side, valued at over $600,000, that had been a grow-op. More recently, Vicki Hopes of the Abbotsford News reported on a civil forfeiture claim being made over a three storey home in which 1,000 marijuana plants were found by police. It is alleged the home was purchased using the proceeds from the sale of this crop. The equity in the home is about $230,000.
Now, the B.C. government is proposing amendments to the CFA. Among other things, these amendments establish a 10 year limitation period within which the Director can assert a forfeiture claim and a two year limitation period for any innocent third party seeking to recovery forfeited property from the government.
Perhaps the most significant change though is the creation of an administrative forfeiture regime. Where the value of the property subject to forfeiture is under $75,001, then the Director can seek forfeiture without the necessity of a court order. Forfeiture will automatically occur upon the expiry of 60 days following the date the Director published notice in the Gazette and gave notice to all registered interest holders (i.e. under the Land Title Act or P.P.S.A.) and “known interest holders”. A “known interest holder” is someone from whom the property was seized, who claims an interest in that property or who the Director reasonably believes may have some interest in the property. Given the stigma of fighting a civil forfeiture proceeding, I suspect these amendments will only increase the government’s success rate.