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.
Which provinces use civil forfeiture?
Currently, civil forfeiture statues are in effect in Ontario, British Columbia, Alberta, Saskatchewan, Manitoba, New Brunswick, and Nova Scotia, and Quebec.
Does civil forfeiture require a criminal conviction?
No. Some of the individuals targeted by civil forfeiture applications have been convicted before a criminal court, but others are merely suspected of a crime. There is no requirement that an individual be convicted in order for their property to be seized by the Crown and ultimately forfeit. Police will sometimes refer a matter to civil forfeiture officials even after the suspect in question has been acquitted in criminal court.
What is the standard of proof in forfeiture proceedings?
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 is debatable. Civil forfeiture has undoubtedly taken profit from specific criminals who get caught, and may increase the financial risk faced by criminals in general. Greater risks, however, can result in greater profits for criminals who don’t get caught. Drug prices, for example, have been shown to steadily increase as law enforcement efforts are stepped up. This can lead to increased profits for criminals who stay step ahead of law enforcement, especially organized gangs.
What are the chances of forfeiture occuring?
Obviously, this depends on the nature of the case and the evidence available. Provincial governments are often able to obtain a forfeiture order even 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 the government fails to prove unlawful activity on the balance of probabilities, or if the defendant can show that forfeiture is “contrary to the interests of justice.” Most civil forfeiture statutes have an explicit section providing for an “interests of justice” defence. Even in Alberta, where such a defence is not explicitly available, the Court of Appeal has stated that judges retain the discretion to deny a manifestly unjust or disproportionate forfeiture order.
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.
2 Responses to Frequently Asked Questions
does making a plea damage my situation for forfeiture hearings?
Hello and thank you for your comment. Entering a guilty plea in the criminal context virtually guarantees that the property in question will be considered an “instrument of unlawful activity” for the purpose of civil forfeiture (see: http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc774/2010bcsc774.html). The only defence left in such cases is the “interests of justice,” which depends on the discretion of the trial judge. The practical effect of this is that if you want your property back, you are more or less obliged to fight the criminal charge.