Forfeiture has been defined as the process by which ownership of property such as houses, cars and bank accounts is "non-consensually transferred" from its owner to the government. The notion is that the "property" has done something wrong and if the property is guilty of the crime the government is authorized to forfeit it.
Civil forfeiture was one of a triumvirate of anti-crime devices that became popular in the United States in the late 1980's and early 1990's. American jurisdictions have since resiled from the aggressive use of civil forfeiture as abuses became abundantly clear.
British Columbia and other Canadian jurisdictions came late to the civil forfeiture table. B.C. in particular has tried to make up for this by being a particularly enthusiastic user of forfeiture. The Province boasts about its forfeiture successes on its web sites and Premier Christy Clark has proclaimed that its scope and application will be expanded.
The breadth of civil forfeiture in B.C. can be understood by looking at several sections in the Civil Forfeiture Act. Firstly there is the wide-reaching definition of unlawful activity. It means an act or omission if (a) it is an act or omission that occurs in British Columbia and the act or omission, at the time of occurrence, is an offence under an Act of Canada or British Columbia; (b) it is an act or omission that occurs in another province of Canada and the act or omission, at the time of occurrence is (i) an offence under an Act of Canada or the other province, as applicable, and (ii) would be an offence in British Columbia, if the act or omission had occurred in British Columbia; and (c) if it is an act or omission that occurs in a jurisdiction outside of Canada and the act or omission, at the time of occurrence, (i) is an offence under an Act of the jurisdiction, and (ii) would be an offence in British Columbia, if the act or omission had occurred in British Columbia.
It is very significant that the act or omission is not limited to a Criminal Code offence. It may be an offence under an Act of British Columbia such as a Motor Vehicle Act offence. There are literally hundreds of provincial offences; in fact, the B.C. Offence Act contains a “general offence” provision which states as follows: “A person who contravenes an enactment by doing an act that it forbids, or omitting to do an act that it requires to be done, commits an offence against the enactment.” The average British Columbian on this basis commits many offences during the course of a year.
This unlawful activity can also take place anywhere in the World so long as the act or omission would be an offence in British Columbia. In other words if you commit a motor vehicle offence in Mexico such as speeding it is an unlawful activity for the purposes of the Act since it would (usually) be an offence in British Columbia. In a civil forfeiture proceeding proof that a person was convicted, found guilty or found not criminally responsible on account of a mental disorder in respect of an offence that constitutes an unlawful activity is proof that the person engaged in the unlawful activity. The Act does not limit the conviction to one occurring in Canada - a Mexican conviction suffices so long as a “certificate” can be produced.
It is not necessary, however, to be convicted of an offence to make your property subject to civil forfeiture. An unlawful activity may be found to have occurred even if (a) no person has been charged with an offence that constitutes the unlawful activity, or (b) a person charged with an offence that constitutes the unlawful activity is acquitted of all charges in proceedings before a criminal court or the charges are withdrawn or stayed or otherwise do not proceed. The standard of proof for a civil forfeiture is the civil one; namely, a balance of probabilities so “beating the criminal charge” can count for nothing.
The section of the act authorizing an application for forfeiture i similarly broadly written. The director may apply to the court for an order forfeiting to the government (a) the whole of an interest in property that is proceeds of unlawful activity, or (b) the portion of an interest in property that is proceeds of unlawful activity The director may also apply to the court for an order forfeiting to the government property that is an instrument of unlawful activity.
The definition of instrument of unlawful activity extends the application of forfeiture far beyond the proceeds of crime realm. That is because "instrument of unlawful activity" means any of: (a) property that has been used to engage in unlawful activity that, in turn, (i) resulted in or was likely to result in the acquisition of property or an interest in property, or (ii) caused or was likely to cause serious bodily harm to a person, and (b) property that is likely to be used to engage in unlawful activity that may (i) result in the acquisition of property or an interest in property, or (ii) cause serious bodily harm to a person;
In other words property can be an instrument of unlawful activity if it may cause serious bodily harm to a person. Only the imagination can limit what MAY cause serious bodily harm to a person. Given the fact that every motor vehicle offence is an unlawful activity could one seriously argue that your car is at some point “likely to be engaged in unlawful activity.” Speeding may cause bodily harm to a person but so may every other motor vehicle offence such as talking on a cell phone while driving or making an illegal left turn. In other words, virtually any motor vehicle offence will give the state the right to seize the "offending" vehicle.
Corporate B.C. shouldn't be too smug about the application of the Act. An accidental discharge of a prohibited substance into a body of water MAY cause serious bodily harm to a person. Say bye-bye to your pulp mill. Look at our blog on the Forfeiture of a Mill.
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