B.C.’s controversial Civil Forfeiture Act faces a fresh constitutional challenge, to be heard in November.
Under the Act, property can be confiscated if the state is able to prove beyond a balance of probabilities that it is an instrument of unlawful activity or the proceeds of unlawful activity (ss. 1-2, 16). No criminal charges are required, and the standard is lower than for a criminal conviction. The provincial government had called for reform in opposition, but currently has no plans to reform the system.
Lawyer Bibhas Vaze is defending a homeowner who is alleged to have trafficked large amounts of marijuana. They say that they were growing it medically, and have licenses from Health Canada. Their home has been sold, and the proceeds are being held awaiting the trial outcome.
As the Charter does not directly protect private property rights, it appears there are a number of other arguments Mr. Vaze plans to make. First, he seeks a declaration that the right to remain silent should protect people facing civil forfeiture. Currently, the rules of disclosure resemble a civil case, where the defendant has to provide any relevant information and documents to the plaintiff. This means that in effect people are made to hand over information that can help the state prove its case. Second, he is arguing that Section 7 is breached because the consequences of civil forfeiture can be grossly disproportionate to the alleged crimes that trigger it.
Between this and another case which will be heard in April, 2018 should help to clear up whether the concerns with civil forfeiture are merely policy problems, or actually violate the constitution.
This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC