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Joshua Krane (Blake, Cassels & Graydon LLP)

Joshua Krane

(Blake, Cassels & Graydon LLP)

Joshua Krane

It’s time for a closer look at B.C.’s forfeiture law Add to ...

B.C.’s Civil Forfeiture Act has once again come under scrutiny this week as reports continue to surface that raise questions about the scope of this law and how it is being enforced. Current and former legislators have called for a review of the law, which is welcome news for those concerned about their legal rights and their property.

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The act, like its counterparts in other provinces, allows the police and the courts to seize and forfeit property that has been used in or tainted by crime. The application of forfeiture laws can be particularly unfair where you have not been convicted of a crime, when someone else has used your property to commit a crime, or where the value of the property being forfeited far exceeds the harm caused by the conduct in issue.

Modern day civil forfeiture laws are relatively new to Canada, with the B.C. law having been enacted in 2005. Until recently, these laws have received little public attention.

Following a 2009 Supreme Court of Canada decision declaring civil forfeiture laws within the scope of the provinces’ “property and civil rights” powers, provincial legislatures were given the green light to enact these laws and take away people’s property without the protections required under Canada’s criminal laws. The criminal law includes important safeguards not present in civil forfeiture legislation, including: stricter rules of evidence; a duty to take reasonable care of property that has been seized and is awaiting possible forfeiture; availability of a fine as an alternative to forfeiture; special consideration for dwelling houses; provisions allowing for the payment of legal fees and reasonable living/business expenses from the seized property; and consideration of the personal circumstances of the offender and affected others.

Because civil forfeiture laws are not constrained by criminal law protections, provincial governments have employed more aggressive techniques to expand the scope of police powers, enlarge the scope of restraint and forfeiture, and reduce procedural safeguards. We have seen a number of recent cases where civil forfeiture has been pursued even where the investigative techniques used by the police have raised Charter issues. This is clearly a problem that requires judicial and public attention.

Moreover, unique to the B.C. law is the power to conduct an “administrative forfeiture” for property valued at $75,000 or less. Under this process, the province can take away someone’s property without trial unless a notice of dispute is received. Because most forfeitures involve small amounts of property and the time period to contest the forfeiture is so brief (assuming the owner is even made aware of the forfeiture), the cost and effort required to retain a lawyer to contest the government’s action often exceeds the value of the property in issue.

As such, nearly all forfeiture cases in B.C. settle in the province’s favour – people faced with administrative forfeiture applications have simply found it too costly, too aggravating or too difficult to try to claim back their property.

A review of the B.C. law, and other provincial forfeiture laws, is clearly in order. As these laws have been in place for several years, it is high time to evaluate whether they actually deter crime or whether they are simply cost recovery mechanisms – particularly when no crime has been established beyond a reasonable doubt. The victim compensation rationale is also suspect, given that crimes for which a forfeiture occurs are largely qualified as “victimless” in nature.

Readers may ask why we should be concerned when, after all, the state can establish that “a” crime occurred. We should be concerned because civil forfeiture laws transfer the burden of crime control onto each one of us – even if we are powerless to do something about the wrongdoing.

While confiscated funds are not remitted directly to police and prosecutors (as they are in the U.S.), these laws still create perverse incentives for police and other officials to demonstrate results to justify government spending on forfeiture programs. While the number of dollars or value of goods seized are quantifiable measures, they do little to indicate success in achieving crime control or allow for accountability. As such, a review of how these laws are working is in order.

Joshua Krane was counsel to the Canadian Civil Liberties Association in the most recent forfeiture case decided by the Supreme Court of Canada.

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