Have the police seized your property?
Have you received a Notice of Intent to Commence Forfeiture in the mail, or been served with a Notice of Civil Claim?
Time is of the essence. Call our office now for assistance.
What is Civil Asset Forfeiture?
Civil Forfeiture is a program operated by the BC Provincial Government under the authority of the Civil Forfeiture Act. The government, through the Director of Civil Forfeiture, files a lawsuit in BC Supreme Court to confiscate assets deemed to be “Proceeds of Unlawful Activity” and “Instruments of Unlawful Activity”.
“Proceeds” and “Instruments” refers to profit obtained through unlawful activity (such as cash, jewelry, stolen goods) and assets used to generate unlawful profit (such as vehicles used to sell drugs or buildings used to manufacture drugs). “Instruments” also includes assets that have been or are likely to be used in a manner that is likely to cause serious bodily harm.
Civil forfeiture is separate and distinct from criminal court proceedings.
Criminal charges are a prosecution against a person. Civil forfeiture is a lawsuit against property. In criminal proceedings, you are facing the Crown in criminal court. In civil forfeiture proceedings, you are facing the Director of Civil Forfeiture in civil court. The Crown and the Director are separate and do not have anything to do with each other.
A simple way to understand civil forfeiture is that the PROPERTY is on trial, not the person. Under the Civil Forfeiture Act, assets can be frozen, possessed by, and forfeited to the Director of Civil Forfeiture without the owner of the property being charged with a criminal offence. Assets can be forfeited even if the charges are stayed or the person is acquitted of a criminal offence.
Civil forfeiture is concerned with property. The purpose of the Civil Forfeiture Office is to commence proceedings against assets that has been acquired through unlawful acts (“Proceeds”) or used to commit unlawful acts (“Instruments”).
Civil forfeiture proceedings typically arise out of drug trafficking, money laundering, fraud, and theft investigations. However, any unlawful activity that may generate unlawful profit can be subject to civil forfeiture proceedings.
Civil forfeiture can also be used against property that is being used in a manner that is likely to cause serious bodily harm (ex. dangerous driving).
Vehicles that that have been used to flee from police or contain an after-market compartment are also subject to forfeiture.
1. Police Seizure
The process begins when the police seize property during an investigation; typically, cash, jewellery, vehicles, and sometimes even real estate (land and buildings). The seized property must be seized in accordance with the Charter and the Criminal Code, or any other legislation authorizing seizure of property.
The police have several options regarding what they can do with the seized property. One option available to the police is to forward the seized property to the Civil Forfeiture Office to be forfeited to the government if there is evidence the property was:
a) obtained illegally
b) used to generate profit through illegal means,
c) used in a manner likely to cause serious bodily harm, or
d) satisfies any of the other enumerated criteria in s. 19 – s. 19.05 of the Civil Forfeiture Act
2. Forfeiture Decision
After the property is forwarded by the police to the Civil Forfeiture Office, the Director of Civil Forfeiture reviews the file and can initiate proceedings to forfeit the property to the government.
If you are the owner of property valued over $75,000 or the owner of real property (land), the Director of Civil Forfeiture will file a lawsuit against you in BC Supreme Court and serve you with a Notice of Civil Claim. You must then file a Response to Civil Claim with the court registry and fight for your property in a civil court proceeding.
If the property is under $75,000 in value and not real property, you will be sent a Notice of Intent to Commence Forfeiture in the mail to your last known address. If you move frequently or do not have a permanent address, the Notice of Intent to Commence Forfeiture is also published weekly in the BC Gazette under “Ministry of Public Safety and Solicitor General”
If your property is less than $75,000 and not real property, you must respond to the Notice using the required dispute form within 60 days from the post-mark on the Notice or the date it was published in the Gazette. If you do not respond or if you fill out the form incorrectly, your property is automatically forfeited to the government without further notice on the deadline date.
If you respond to the Notice of Intent, the Director of Civil Forfeiture must then file a lawsuit against you in BC Supreme Court or return your property.
3. Court Proceedings
Civil Forfeiture proceedings occur in civil court, not criminal court.
In civil court, the Director of Civil Forfeiture must prove on a balance of probabilities that the property was used or obtained unlawfully; this means the judge must be only 51% sure that your property is Proceeds or an Instrument of Unlawful Activity. This is different from criminal court, where charges must be proven beyond a reasonable doubt.
Unlike criminal proceedings, in civil court you may be obligated to provide evidence in your own defence. This may include documents and witness testimony. Further, you do not have the right to not testify in your own defence. You may be compelled to give oral evidence in a civil court process called “Examination for Discovery” that can then be used in the civil court proceedings.