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Civil Forfeiture

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, also known as Civil Asset 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” refers to profit obtained through unlawful activity, such as:

  • Cash
  • Stolen goods
  • Assets purchased with unlawfully obtained money, such as jewelry, vehicles, and even real estate (land and buildings)

 “Instruments” refers to assets that have been been used to generate unlawful profit or are likely to be used in a manner that is likely to cause serious bodily harm, such as:

  • Vehicles used to sell drugs or steal property
  • Equipment used to manufacture drugs
  • Land and/or buildings used in unlawful operations
  • Vehicles driven in a manner that puts the public at risk

Civil forfeiture is separate and distinct from criminal court proceedings.  

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 even if:

  • You have not been charged with a crime
  • The criminal charges against you have been withdrawn
  • The criminal charges against you have been stayed
  • You have been found not guilty of criminal offence at trial

Criminal charges are a prosecution against a person. Civil forfeiture is a lawsuit against property, offically called an “in rem” proceeding.

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. 

The Charge

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. 

The Process

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). 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 is to forward the 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. They will then 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. 

Recent Successes

R. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

R. vs. A.V. – Vancouver Provincial Court

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

R. vs. T.B. – Vancouver Provincial Court

Charges: Indecent Act; Assault With a Weapon; Possessing of a Weapon for Dangerous Purpose (x2); Robbery; Uttering Threats; Theft of Property of a Value not Exceeding $5,000.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with prosecution of all counts; whether a jail sentence was appropriate.
Result: Mr. Johnston identified weaknesses in the evidence which persuaded the Crown there was no reasonable prospect of conviction on the Indecent Act charge.  Mr. Johnston persuaded Crown counsel  to resolve the case on three of the remaining counts and to stay all remaining charges. After hearing Mr. Johnston's submissions regarding our client's personal circumstances and his significant rehabilitation efforts,  the Court agreed to release our client from custody and to place him on a probation order with conditions supporting his rehabilitation. No further jail time.

R. vs. M.G. – RCMP Investigation

Charges: Possession for the purpose of trafficking.
Issue: Whether there was a substantial likelihood that Crown could establish that our client was a willing participant in the alleged drug trafficking scheme.
Result: Mr. Mines was able to provide information and persuade police to not seek any criminal charges against our client. No No charges were approved. Our client's vehicle was retuned. No criminal record.

R. vs. A.K. – New Westminster Provincial Court

Charges: Assault.
Issue: Whether there was a reasonable likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to provide additional information and persuaded Crown counsel stay the charge upon our client completing the Alternative Measures Program. No criminal record.  

R. vs. K.L. – Vancouver Police Investigation

Charge: Assault Peace Officer.
Issue: Whether there was a substantial likelihood of a conviction in this case which involved an alleged assault of a police officer.
Result: Mr. Gauthier provided information and a video to Crown counsel which showed that the police made an unlawful arrest thereby giving our client lawful grounds to defend himself. Mr. Gauthier was able to persuade Crown to not approve any charges. No criminal record.

R. vs. C.D. – Vernon Provincial Court

Charges: Assault with a weapon; Mischief to property.
Issues: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the criminal prosecution in this case where our client allegedly intentionally collided with the complainant's vehicle.
Result: Mr. Gauthier provided additional information to Crown counsel and was able to persuade Crown to resolve this matter with a s.810 Recognizance (Peace Bond).    

The Defence

The Civil Forfeiture Act is a very powerful piece of legislation. It is important to know that fighting the Civil Forfeiture Office will involve a lot of time and effort on your part. 

It is also important to know that there are very strict timelines to file the various documents. It is crucial that you respond to correspondence from the Civil Forfeiture Office immediately. 

You are defending yourself in a lawsuit, and thus the rules of evidence are very different from a criminal prosecution. You will likely have to provide evidence in your defence. The Civil Forfeiture Office does not have to disclose their entire case to you upfront. This is notably different from the rules in criminal proceedings, where the Crown has the onus to prove the case against you and must provide you with disclosure of all the evidence they intend to rely on. 

Preventing proceedings against the seized assets 

If the police have seized your property but you have not received a Notice from the Civil Forfeiture Office, our team will negotiate with the police agency and/or the Civil Forfeiture Office to return your property before they initiate proceedings.  

The Property is not Proceeds and/or not an Instrument of Unlawful Activity 

To defend a civil forfeiture action, you must be able to provide evidence that the property was lawfully acquired. This often involves providing bank statements, pay stubs, and bills of sale. 

You may have to provide evidence that the property was not used to generate unlawful profit or was not used in a dangerous manner. This will involve producing evidence on a case-by-case basis, depending on the circumstances of the allegation. 

Forfeiture is not in the interests of justice 

Proportionality and fairness must govern civil forfeiture proceedings. 

If the Director of Civil Forfeiture files a lawsuit against you, you may be able to argue that the value of the forfeiture is disproportionate to the severity of the alleged offence. 

You may also argue that the forfeiture is unfair. This defence is often used when innocent parties are prejudiced by the forfeiture of the property. Commonly, this defence is used when the owner of the property is unaware that the property is being used unlawfully by someone else. 

Charter Breaches 

The police must obey the Canadian Charter of Rights and Freedoms. The Charter rules pertaining to the admissibility of evidence apply to civil forfeiture proceedings. “Bifurcation” is the term used in civil court to describe the process to argue that the evidence was gathered in breach of the Charter and should be excluded, akin to a criminal voire dire. Our team at Mines & Company has extensive experience making Charter challenges and will pursue every angle to exclude unlawfully gathered evidence. 

Settlement

Criminal proceedings are “all or nothing;” you are either guilty or not guilty. Civil Forfeiture is very different. 

Civil forfeiture is not “all or nothing.” Because it is a civil proceeding, it is possible to reach an out of court settlement to agree to only forfeit a percentage of the property’s value. This is achieved through negotiations with the Director of Civil Forfeiture and may involve participating in formal mediation. Settlement has the benefit of reducing the amount of time and money spent defending against a civil forfeiture action. 

Civil Asset Forfeiture is a complex and intimidating area of law. Don’t fight it alone.
Mines & Company has the knowledge and the experience to help you recover your seized property. 

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.