Asset Forfeiture Defence (Civil and Criminal)

Various provisions of Canadian federal and provincial law permit Canadian Courts to order that a citizen be deprived of what may generally be referred to as either offence related property or proceeds of crime.

Although complex, in general terms, at the federal level, if a citizen is convicted of a criminal offence section 16(1) of the Controlled Drugs and Substances Act (the CDSA) and section 490.1(1) of the Criminal Code (the Code) permit the Court, as part of the offenders sentence, to order the forfeiture of property that it finds, on a balance of probabilities, to have been used, or was intended to be used, in connection with the offence that is the subject matter of the conviction. In addition, section 16(2) of the CDSA and section 490.1(2) of the Code authorise a similar forfeiture order when the Court is satisfied beyond a reasonable doubt that property is offence related property in relation to the commission of another offence that has not been the subject of the predicate criminal proceeding or conviction. Again, although complex, some types of forfeiture orders are subject to a proportionality test and third party owners and interest holders are protected in certain circumstances.

In addition, and again at the federal level, Code section 462.37(1) permits a sentencing Court to order the forfeiture of property that has been demonstrated on a balance of probabilities to have been derived from the commission of designated Code and CDSA crimes of which the citizen has been convicted. Again, Code s.462.37(2) permits forfeiture of property shown beyond a reasonable doubt to be the proceeds of offences other than those that have been dealt with by the Court. In addition, Code sections 462.41(3) and 462.42 provide for protection of lawful owners and third party interest holders. Finally, Code section 491.1 authorises the Court to order the return of property obtained by crime to its lawful owner.

In turn, and since April 20, 2006 the British Columbia provincial Civil Forfeiture Act has permitted the forfeiture of the property of a citizen that a Supreme Court Judge finds on a balance of probabilities to be the proceeds of crime, or an instrument of the commission of certain crimes, whether or not the citizen has been charged with or convicted of the offence in relation to which the crime has been found to have been committed. Provincial civil forfeiture is thus distinguished from federal criminal forfeiture in that the former is not related to conviction and sentencing proceedings but rather arises as a result of stand alone civil law processes unrelated to the imposition of federal criminal law sentencing sanctions.

Relief from provincial forfeiture may be obtained when forfeiture is “clearly not in the interests of justice” within the meaning of Section 6 of the Civil Forfeiture Act. Finally, so-called “administrative forfeiture” can occur in relation to property having a value of less than $75,000 unless the owner of the property gives notice of his or her intent to dispute the forfeiture sought within 60 days of being notified that administrative forfeiture proceedings have been commenced. As provincial civil forfeiture proceedings are determined in accordance with the general provisions of the BC Supreme Court Civil Rules of Court, citizens who contest forfeiture proceedings are required to produce relevant documents and to submit to examination for discovery under oath.

Mr. Martin has chaired two BC Law Society Continuing Legal Education Programmes related to federal forfeiture processes and M+A is experienced in dealing with provincial civil forfeiture proceedings. The processes that deprive citizens of their property are complex with the result that the development of a successful defence to a government application seeking forfeiture necessarily entails experienced, strategic judgement. M+A is committed to the defence of the liberty (See: Domestic Criminal Defence), reputation (See Civil Actions) and property of all those citizens that they undertake to represent.