Part One: Significant Revisions of the Civil Forfeiture Act: Targeting Organized Crime, Fentanyl Production, and Charter Rights

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Mike Farnworth, the Solicitor General, introduced the Civil Forfeiture Amendment Act to the B.C. Legislature on March 5th. Minister Farnworth called the Bill “the most significant revision” of the Civil Forfeiture Act since its introduction in 2006.

The Bill has already garnered severe criticism from the British Columbia Civil Liberties Association. Michael Vonn, a lawyer with the organization explained to Citynews that the proposed changes make the legislation ripe for abuse. Most worrying, Vonn stated, is the flipping of the onus of proof onto the defendant, who would be burdened with proving that the property is not a proceed of crime. Additionally, the Bill lowers the standard of proof for Civil Case Directors, who can request information from a financial institution if they have “a reason to believe.” To access the same information in a criminal investigation, the police are held to a higher standard.

A variety of rights are implicated in the new Bill. This Blog post is the first in a series which will discuss the proposed changes.

First, the following section was added, which requires the Respondent to identify their interest in the property:

Response must identify interest in property

4.01  A person who files a response to proceedings commenced under section 3 must identify in the response the nature of the interest that the person claims in the property that is the subject of the application for forfeiture.

The following Division is added to Part 3:

Division 1.1 – Orders Related to Production
of Information or Records and Preservation of Property

11.01  (1) On application of the director, a court may make an order requiring a person to disclose to the director information or records in the custody or control of the person if the court is satisfied that the information or records are reasonably required by the director in order to exercise the director’s powers or perform the director’s functions and duties under this Act.

(2) The director may apply for an order under subsection (1) before, at the time of or subsequent to

(a) commencing proceedings under section 3, or

(b) applying for

(i) an interim preservation order under section 8, or

(ii) an order under section 11.02.

(3) The director must pay to a person who is subject to an order under subsection (1) the reasonable costs of producing, reproducing or delivering the information or records.

Here, the onus is on the Director to demonstrate a reasonable requirement. This is an arguably low onus.

Section 11.02 concerns the preliminary orders to preserve property which the Director gives the director powers to apply to court for an order to preserve the property. Under the Act, the court may then

(a) an order restraining the disposition or transmission of the property or the whole or the portion of the interest in property;

(b) an order for the disposition of the property or the whole or the portion of the interest in property in order to better preserve the value of the property or the whole or the portion of the interest in property;

(c) an order the court considers appropriate to prevent the property from being

(i) removed from British Columbia, or

(ii) used to engage in unlawful activity;

(d) subject to subsection (6), any other order that the court considers appropriate in the circumstances.

This is part one of a series dedicated to reviewing the new Bill.

This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.