By Sunny Dhillon/theglobeandmail.com
By the time Morgan Fane’s client had received the letter from the B.C. Civil Forfeiture Office indicating his property was being seized, the deadline to respond had already passed. His $3,000 was gone.
The cash was seized during a roadside stop. Police believed one of the men inside the vehicle was selling drugs and the money was a result of that activity, but charges were never laid.
The office sent a letter to the last-known address for the money’s owner, where a family member signed for it. But by the time that letter made it into the owner’s hands, it was too late. The cash had been forfeited.
“The fact that until you prove otherwise, the [civil forfeiture] director will, without any oversight, seize and dispose of property just because it’s not expensive enough to warrant a judge’s involvement is quite unfair,” said Mr. Fane, a Vancouver lawyer who has worked on civil forfeiture cases.
B.C.’s Civil Forfeiture Office was created in 2006 to fight organized crime, but a months-long Globe and Mail investigation has found it now has a wider reach.
In 2011, B.C. became the first province in the country to introduce a process known as administrative forfeiture, which makes it quicker and easier to seize property worth less than $75,000 if authorities believe it is the product of unlawful activity. Administrative forfeiture, like other civil-forfeiture cases, does not require criminal charges or a conviction.
B.C. has taken on 921 administrative forfeiture cases since the process was introduced three years ago. Of the $41-million the office has seized in total since its creation, $3-million has come from administrative forfeiture cases.
Alberta and Manitoba have followed B.C.’s lead and introduced administrative forfeiture programs.
When pursuing a case as administrative forfeiture, the office must notify the property’s owner in one of two ways: by sending a letter to the owner’s last-known address, or publishing a notice in the newspaper. If the owner does not respond within two months, the property – usually a vehicle, cash, or even a cellphone – is forfeited. If the owner chooses to contest the seizure within two months, the case goes to court.
But because the amount seized can be far less than potential legal costs, Mr. Fane said many people who become involved in the administrative-forfeiture process simply walk away.
“Unless you’re somebody who wants to fight this thing on principle, the economic answer is usually just, ‘Forget it.’ Regardless of any injustices involved, it’s not worth your time,” Mr. Fane said in an interview.
Critics say B.C.’s civil-forfeiture program needs a review. The B.C. NDP says it will push for one in the coming session of the legislature and former attorney-general Wally Oppal has said it might be time for a closer look at the program.
However, Justice Minister Suzanne Anton said Wednesday there will be no review.
“I am confident in the work being done by the Civil Forfeiture Office (CFO), which is precisely what it was set out to do when it began in 2006 so there is no need for a review. I am also very proud of the success it continues to have in taking away the proceeds of crime and investing it back in communities throughout the province,” Ms. Anton said in an e-mailed statement.
Eight of 10 provinces have civil-forfeiture programs, but B.C. has been among the most aggressive in pursuing property and cash in this way. Although it launched three years after Ontario, B.C. has hauled in $2-million more.
Unlike Ontario, B.C. issues its office budget targets, which have gone up over the past two years. And 99 per cent of the people the office targets settle on terms favourable to the office.
An Ontario government spokesman said of the 429 cases its civil forfeiture program has handled to date, 203 forfeitures have been settled – 47 per cent.
Phil Tawtel, the B.C. office’s executive director, in an interview said the program is working as it should and is evolving in response to court rulings. He said more key court rulings are expected this year and could prompt dramatic changes.
Josh Paterson, executive director of the B.C. Civil Liberties Association, said the organization has significant concerns about the entire civil forfeiture regime, including the administrative forfeiture provisions.
“It really puts a burden on to the person that they’re trying to seize property from to dispute it, and then to justify why they ought not to have their property seized,” he said in an interview. “… In criminal proceedings, the burden is entirely on the government to justify why they ought to convict you.”
Jay Solomon, another Vancouver lawyer who has handled civil forfeiture cases, said the administrative forfeiture process simply shouldn’t exist. He said if a person’s property is being seized it should have to go through the courts.