The most egregious part of the Act is that it allows the Civil Forfeiture Office to seize property without charging anyone with a crime. There are forfeiture provisions in the Criminal Code but they are tied in with conviction for a crime. As the B.C. Civil Liberties Association has pointed out the provincial civil forfeiture process permits an end run around the Criminal Code.
Although there would appear to be an obvious constitutional problem with civil forfeiture, the judiciary so far have not risen to the cause. It is hard to understand why. Interestingly a couple of B.C. judges have heard a number of cases - perhaps this reflects an administrative assignment decision. In any event these judges have had not been bothered by the sweeping nature of civil forfeiture. Ironically the penalty of civil forfeiture - like losing a house or vehicle - can have far greater negative consequence for the targeted person than for example spending a couple of weeks in jail.
What are some of the necessary reforms for the B.C. Civil Forfeiture Act? Firstly, the person (whose property is being seized) should have been convicted of the criminal offence which is the basis of the forfeiture. Secondly, indigent targets should have the benefit of legal aid. Thirdly, forfeiture should be proportional to the crime. A house worth hundreds of thousands of dollars or a car worth tens of thousands of dollars should not be forfeited where conviction of the crime would elicit a fine which is a small fraction of these amounts. Fourthly, forfeiture should not extend to provincial offences. Next, the Office of Civil Forfeiture should not have discretion over the disposition of forfeiture proceeds. This invites abuse. Finally there needs to be some prosecutorial checks and balances on the initiation of forfeiture. At present civil forfeiture in B.C. is also a way that the police can do an end run around Crown prosecutors.
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