What is civil forfeiture?
Civil forfeiture statutes allow provincial governments in Canada to initiate proceedings in a superior court for forfeiture of any piece of property that is suspected to be an instrument of crime or the proceeds of crime. A general description of civil forfeiture in Canada is available here.
Which provinces use civil forfeiture?
Currently, civil forfeiture statues are in effect in Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, and Nova Scotia.
Does civil forfeiture target criminals?
Some of the individuals targeted by civil forfeiture applications have been convicted before a criminal court. Others are merely suspected of a crime, and have their case referred to a provincial civil forfeiture office by police. There is no requirement that an individual be convicted in order for their property to be seized by the Crown and ultimately forfeit.
What does the Crown have to prove in order to achieve forfeiture?
Because forfeiture applications take place in civil court, the Crown is essentially suing an individual as opposed to prosecuting them. Therefore, they must only prove on the balance of probabilities that a piece of property is more likely than not either an instrument of crime or the proceeds of crime. Unlike in criminal proceedings, there is no requirement that the Crown prove guilt beyond a reasonable doubt.
Does civil forfeiture take the profit out of crime?
This issue is debatable. Certainly, civil forfeiture has taken the profit out of certain crimes committed by certain individuals. In addition, it increases the financial risk involved in crime. Greater risks, however, can result in greater profits for criminals who are not caught. Drug prices, for example, have been shown to steadily increase as law enforcement efforts are stepped up. This leads to a steady increase in profits for the criminals who are able to remain a step ahead of law enforcement, especially organized gangs.
Once an application for forfeiture has been filed, what are the Crown’s chances of success?
Obviously, this depends on the nature of the case and the evidence available. So far, provincial governments have had a virtually unblemished track record of successfully obtaining forfeiture, including in cases where the evidence of guilt falls well short of the criminal standard. For this reason, many civil forfeiture defendants either settle out of court, or simply give up and abandon their property. Defendants should always consult counsel before making such a decision.
Is it possible to resist forfeiture?
Despite the formidable record of provincial governments in achieving forfeiture, it is indeed possible for defendants to retain their property if they can demonstrate that forfeiture in the circumstances is “not in the interests of justice.” Most civil forfeiture statutes have an explicit section providing for this defence. Even in Alberta, where such a defence is not explicitly found in the province’s legislation, the Court of Appeal has stated that judges retain the discretion to refuse to order forfeiture in cases where such an order would be manifestly unjust or disproportionate.
Is civil forfeiture constitutional?
Broadly speaking, yes; the Supreme Court of Canada found in Chatterjee v. Ontario that civil forfeiture is a valid power of the provinces under Section 92 of the Constitution Act, 1867. The interplay between civil forfeiture and the Charter, however, is less clear, and could still result in civil forfeiture being found unconstitutional in certain, narrowly-defined circumstances. For more information on civil forfeiture and the Charter, click here.