The Civil Forfeiture Act allows the director of civil forfeiture to commence legal proceedings against property linked to unlawful activity.
Civil forfeiture quick facts:
- Authorized by the Civil Forfeiture Act of B.C.
- Commenced in court and subject to the Supreme Court Civil Rules
- Can proceed even if you were not charged or if your charges were stayed or you were acquitted
All civil court cases commence with an action being filed in the court registry. In most cases court documents must be served on all parties who have or may have an interest in the property subject to a forfeiture claim. If you have been served documents, they will contain highlights of the facts that the director intends to prove in establishing that the property should be forfeited.
The director retains lawyers to act in all civil proceedings. The lawyer’s name and contact information will be noted in the court documents. If you are a defendant to the action and have retained a lawyer to act on your behalf, then it is proper for communication to come through your lawyer. If you are representing yourself, you can communicate directly with the director’s lawyer.
To succeed in a forfeiture claim the director does not need to prove that you were convicted of a crime. The director must establish that the property in question is either proceeds or an instrument of unlawful activity, and will use the evidence gathered by the police in making its case.
If the director establishes its case and a judge of the Supreme Court decides that property should be forfeited, the next step is for the judge to consider whether it would be in the interests of justice to order forfeiture. At this stage a judge may decide not to order forfeiture, put terms on the order, order partial forfeiture or decline to order forfeiture altogether.
There are many legal cases that discuss the interests of justice.
The judge may also limit or decline to order forfeiture if you are an “uninvolved interest holder.” This essentially means that you did not know of the use to which the property was being put. However, the director may lead evidence that you ought to have known of the unlawful activity. The decision about whether you ought to have known rests with the judge.
As in any civil case, if the director or an interest holder fails to make its case, a judge may, and will usually, order that costs be paid to the successful party.