Thursday, 20 October 2011


What is wrong with B.C.’s Civil Forfeiture Act? Here is a summary:

1.  It applies to the commission of provincial offences as well as (federal) Criminal Code offences. There are literally thousands of provincial offences. Almost every piece of provincial legislation has a couple of offence provisions. Provincial offences include minor motor vehicle offences and landlord and tenant offences. Many provincial offences are strict liability. i.e. it does not matter if you intended to commit the act; mens rea or the state of your mind is irrelevant.

2.  The typical penalties for most provincial offences are small - fines of a couple of hundred dollars. Penalties for minor Criminal Code offence are also often small fines. These same provincial or Criminal Code offences, however, can result in a civil forfeiture involving hundreds of thousands of dollars worth of property. The penalties are totally out of proportion to the penalty for the offence in the provincial statute or in the Criminal Code.

3.  Civil forfeiture allows for an end run around the Criminal Code and the procedures set out in the Criminal Code. Most significantly while the standard of proof for a criminal conviction is "beyond a reasonable doubt" the standard of proof for a civil forfeiture is the civil standard "balance of probabilities. No wonder the police like civil forfeiture!

4.  Civil forfeiture is initiated through the Civil Forfeiture Office. This Office has complete discretion on when and why it initiates a civil forfeiture. While prosecutors have a certain amount of discretion in prosecuting alleged criminal offences they work within well established frameworks - if they choose not to prosecute a matter it is because they do not think they will be successful, not that they do not like the colour of the person’s hair. Although I am not suggesting that the Civil Forfeiture Office will act that whimsically, they will inevitably pick and choose to initiate forfeiture in a highly discretionary manner. Inevitably "publicity" has and will drive forfeitures. Additionally the police can avoid dealing with prosecutors, who might question the legality of an investigation, and go directly to the Civil Forfeiture Office. This became a standard practice in the U.S. and it looks like it is becoming a practice here.

5.  Almost all persons charged with criminal offences still have access to legal representation even if they can’t afford to pay for it.  Targets of civil forfeiture have not had the benefit of legal aid. They have a choice between a costly legal battle or, if they do not have the resources, to simply give in. The government funded Civil Forfeiture Office has (I’d say typical of all such government offices) illustrated that they will spare no expense to win. If they lose at the B.C. Supreme Court level, they invariably will appeal to the Court of Appeal and (if need be) to the Supreme Court of Canada. Because it is a civil proceeding they will ask for and obtain costs against the forfeiture target. It is a hopelessly one-sided legal battle for the forfeiture target.

6.  The Civil Forfeiture Office keep the proceeds of the forfeiture. Yes, they can distribute some of the windfall to a party who been at the wrong end of an offence and yes they will distribute some of the money to good causes but most of the money they will keep for the benefit of the Office. There are many reasons why such a situation invariably leads to abuse.

7.  When bureaucrats write laws they invariably make them very one-sided. The B.C. Civil Forfeiture Act IS VERY ONE-SIDED with sweeping definitions and few guarantees of fairness and reasonableness.

While the B.C. Government think that they have invented the wheel, civil forfeiture has been around for a long time in the U.S. It reached the height of its popularity in the 1990's. A catalogue of abuses resulted in some cutting back of the federal legislation in 2000 and it has continued to go out of favour. The same kind of abuses that occurred in the U.S. are now taking place in B.C. and will continue to take place in B.C. until the law is severely restricted.

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