Civil Forfeiture Lawyers

What is Civil Forfeiture?

Authorized by the Civil Forfeiture Act of B.C., civil forfeiture is the process by which the government takes possession of and forfeits to the Crown assets deemed to be the instruments or proceeds of unlawful activity. 

A claim against assets, not persons, civil forfeiture targets property alone — the direct, or indirect, proceeds or instruments of unlawful activity — and can proceed in absence of criminal charges and convictions, and despite acquittals.

Because the Director of Civil Forfeiture does not need to prove your criminal culpability to be successful in a forfeiture suit, even assets seized or uncovered in unreasonable search and seizures, like cash, cars, jewelry, electronics and real estate, may be forwarded by police to the Civil Forfeiture Office, where the Director will decide whether or not to pursue a forfeiture claim against them. 

While civil forfeiture claims generally emerge from drug trafficking and production, fraud, theft and money laundering investigations, any criminal activity that spawns unlawful profit can be targeted in a civil forfeiture suit. 

Administrative Civil Forfeiture

Administrative civil forfeiture is simply legally streamlined civil forfeiture. It allows the government to target assets valued under $75,000 through an administrative process, avoiding due process and the courts.

Authorized by the Civil Forfeiture Act of BC, the administrative civil forfeiture process begins when you receive a Notice of Intent to Initiate Administrative Forfeiture of Subject Property. The notice may be sent by mail or published in a B.C. newspaper. 

To stop the administrative civil forfeiture process you must submit a properly commissioned Notice of Dispute to the Director of Civil Forfeiture within the 60 day dispute period. Failure to do so will result in your property being forfeited. Should this be the case, you have no more than two years to bring the matter before a judge.

Civil Forfeiture Office and the Director of Civil Forfeiture

The Civil Forfeiture Act of B.C. creates the Civil Forfeiture Office and the position of Director of Civil Forfeiture. As the Director of Civil Forfeiture lacks independent powers of investigation, the office receives files from the police and civil bodies like ICBC.

The Civil Forfeiture Office is self-funded. Forfeited assets are liquidated and the funds are used to cover the costs of the Civil Forfeiture Office. A comparatively small amount of funds are directed toward victim compensation and crime prevention programs.

Civil Forfeiture Act of BC

Forfeiture order

5 (1) Subject to section 6, if proceedings are commenced under section 3 (1), the court must make an order forfeiting to the government the whole or the portion of an interest in property that the court finds is proceeds of unlawful activity.

(2) Subject to section 6 and section 13 (1), if proceedings are commenced under section 3 (2), the court must make an order forfeiting to the government property that the court finds is an instrument of unlawful activity.

Relief from forfeiture

6 (1) If a court determines that the forfeiture of property or the whole or a portion of an interest in property under this Act is clearly not in the interests of justice, the court may do any of the following:

1. refuse to issue a forfeiture order;
2. limit the application of the forfeiture order;
3. put conditions on the forfeiture order.

(2) In the case of property that is proceeds of unlawful activity, the court may grant relief from forfeiture under subsection (1) if a party to the proceedings commenced under section 3 (1) proves both of the following:

1. she or he did not, directly or indirectly, acquire the property as a result of unlawful activity committed by the party;
2. she or he
1. was the rightful owner of the property before the unlawful activity occurred and was deprived of possession or control of the property by means of the unlawful activity,
2. acquired the property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity, or
3. acquired the property from
1. a person who was the rightful owner of the property before the unlawful activity occurred and who was deprived of possession or control of the property by means of the unlawful activity, or
2. a person who acquired the property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity.

Protection order

13 (1) Subject to subsection (3), if a court finds

1. that property is an instrument of unlawful activity, and
2. that a person is an uninvolved interest holder with respect to that property, the court must make the orders necessary to protect the interest in the property held by the uninvolved interest holder.

(2) A protection order issued with respect to property that is subject to a forfeiture order has effect from the date that the forfeiture order is effective or is deemed to be effective, unless the court orders otherwise.

(3) A court may refuse to issue a protection order if the issuance is clearly not in the interests of justice.

Defending Civil Forfeiture

Civil forfeitures and administrative civil forfeitures require immediate legal attention. Outcomes in civil forfeiture cases can depend as much on the circumstances of your case as on the lawyer you hire. Retaining Pender Litigation puts not only a skilled civil forfeiture lawyer by your side but our entire team at your back, bolstering your defence with our collective insight, experience and expertise. 

Ways our firm can assist you include:

• Filing administrative civil forfeitures disputes
• Defending civil forfeiture claims
• Bringing applications for remedies pursuant to the Charter
• Negotiating resolutions that save assets from forfeiture

Disputing Administrative Civil Forfeitures

The administrative civil forfeiture process begins when you receive a Notice of Intent to Initiate Administrative Forfeiture of Subject Property, issued by mail or published in a B.C. newspaper or gazette. 

If you received or became aware of a notice of intent and wish to dispute it, you must follow these steps:

• Complete the Notice of Dispute and have it commissioned before a notary, lawyer, warden or other commissioner.
• Mail the Notice of Dispute to the Civil Forfeiture Office.
• The Notice of Dispute must be postmarked and received by the Director of Civil Forfeiture within 60 days of the date postmarked on the mail you originally received from the Director.

Upon receiving your Notice of Dispute, the Director of Civil Forfeiture will review your file, including any supporting materials appended to your dispute. The Director will then decide whether to proceed with or discontinue the forfeiture. If the Director chooses to proceed, a civil forfeiture lawsuit will be filed in the B.C. Supreme Court. You must be notified of this decision within 30 days.

An administrative civil forfeiture can only be stopped by submitting a properly commissioned Notice of Dispute to the Director of Civil Forfeiture within the 60 day dispute period. Failure to do so will result in your property being forfeited. Should this be the case, you have up to two years to bring the matter before a judge.

Defending Civil Forfeiture Claims

Sometimes police seize assets in an investigation. If there is evidence this property was the product or instrument of unlawful activity, or used in such a way that it was likely to cause serious bodily harm to another person, the police may forward it to the Civil Forfeiture Office, where the Director of Civil Forfeiture will decide whether or not to pursue a forfeiture claim.

The civil forfeiture process begins when the government applies to the B.C. Supreme Court for a forfeiture order, and a Notice of Civil Claim is served on all parties who may have interest in the relevant property. If you wish to fight for these assets in a civil proceeding, you must file a Response to Civil Claim with the court registry. Failure to respond to this order will result in the forfeiture of your assets.

Though the assets in question must be used in or gained through criminal activity, applications are made through civil law procedure and are therefore subject to the civil standard of proof on a balance of probabilities. The burden of proof falls on the Director of Civil Forfeiture, who need only demonstrate that it is more probable than not that your assets were the instruments or proceeds of unlawful activity.

Should your case go to trial, defences to civil forfeiture claims include (but are not limited to):

• Charter of Rights and Freedoms violations: Charter applications, motions that detail the ways in which police violated your Charter rights in a criminal investigation, can be used to seek the exclusion of evidence. Violations that may be argued in your defence include searching your car without permission and not letting you speak with a lawyer. This defence argues the breach of your rights is more serious than the offence with which you are charged, and asks the judge to right this injustice by banning some or all of the evidence against you. If some or all of the evidence against you is excluded, the Director of Civil Forfeiture’s case will likely fail.
• Insufficient Evidence: Though the Director need only prove their case on a balance of probabilities, they still need to produce evidence sufficient to meet that onus.
• Uninvolved Interest Holder: If it can be shown that someone is an uninvolved interest holder then they are relieved from any potential forfeiture.
• Proportionality: Even if the Director proves their case the court still needs to engage in an assessment of the appropriate amount of the asset to be forfeited.

As in all Supreme Court civil cases, the presiding judge has the power to order court costs to the successful party. While some or all of your court costs could be covered if you win, you could be on the line for a portion of the government’s legal fees as well as your own, in addition to losing your property, if you are unsuccessful at trial.

Negotiating Resolutions

Due to the expense of taking civil forfeiture cases to trial, they are often resolved out of court by way of negotiation. A settlement requiring you to relinquish only a portion of the value of the property can often be reached through negotiations with the Director of Civil Forfeiture. This can save you considerable time and money.

If your assets were seized by police but you didn’t receive a Notice of Intent to Initiate Administrative Forfeiture of Subject Property or a Notice of Civil Claim from the Civil Forfeiture Office, we can negotiate the release of your property with the police and Civil Forfeiture Office before a claim is filed.

Learn About Civil Forfeiture

• What is Civil Forfeiture
• Civil Forfeiture Act of BC
• Defending Civil Forfeiture