It is heartening to see national papers like the Globe and Mail and the National Post turn a critical eye to British Columbia’s civil forfeiture regime. In British Columbia, the Civil Forfeiture Act has been in effect for several years, but only occasionally has attracted the interest of the media. It’s kind of sad that it took the involvement of the “Hell’s Angels” in a forfeiture case to generate media interest in what is actually a very important issue for the whole country.
On the bright side, the Globe and Mail nailed the issue. In an editorial published on February 2, 2014 by the Globe, BC’s civil forfeiture regime was lambasted as “BC’s overzealous cash cow” and criticized for drawing cititzens into an unfair fight with the government:
The underlying problem with civil-forfeiture law has to do with the burden of proof. It’s low. Neither a criminal conviction or even a charge is needed to move on someone’s property. Not surprisingly, hundreds of those targeted by the B.C. office want to fight back. But it can be prohibitively expensive to fight a civil suit, particularly when the party on the other side of the table is the deep-pocketed government. The result? In B.C., 99 per cent settle before trial, on terms overwhelmingly favourable to the office.
Most people don’t have a lot of time or sympathy for Hell’s Angels or other alleged criminals. But finally it is starting to sink in that civil forfeiture laws can impact law abiding citizens harshly and disproportionately. If you own property and rent it to anyone, watch out. If that property is used in criminal activity by your tenant, you may find yourself on the wrong end of a government lawsuit targeting your property for forfeiture. You’ll then have to answer for why someone else committed crimes on your property and why you did not detect and put a stop to it. If you think I’m just a mouthpiece for criminals on this one, think again.
There is a case in progress right now in Maple Ridge, British Columbia, where of all people a lawyer has had his investment property, a second home, made subject to a civil forfeiture action because of what his tenants were doing on the property. Apparently, property owners have a dual role – landlord and unpaid police officer.
The unfortunate part about this whole story is that the Supreme Court of Canada has allowed the provinces to enact this type of legislation in the first place. In Chatterjee v. Ontario (Attorney General),  1 S.C.R. 624, the Supreme Court of Canada considered a challenge to the constitutionality of Ontario’s civil forfeiture legislation, the Civil Remedies Act, and found that such legislation was within the legal jurisdiction of provinces to pass, reasoning that:
The CRA [Civil Remedies Act] was enacted to deter crime and to compensate its victims. The former purpose is broad enough that both the federal government (in relation to criminal law) and the provincial governments (in relation to property and civil rights) can validly pursue it. The latter purpose falls squarely within provincial competence. Crime imposes substantial costs on provincial treasuries. Those costs impact many provincial interests, including health, policing resources, community stability and family welfare. It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot use deterrence to suppress it.
If there ever were a type of law that was purely “criminal” in nature, i.e., falling under the head of the federal government’s power to legislate criminal law, I would have thought the inaptly named civil forfeiture regimes fit the bill and trampled all over the federal government’s legal territory. But the Supreme Court of Canada has concluded there is “overlap” with legitimate provincial powers, and therefore room for both governments to legislate. With respect, I find the court’s reasoning tortured, and believe that the provinces have effectively been granted partial criminal law jurisdiction.
The only hope of reining in these civil forfeiture regimes now rests with the Hell’s Angels’ challenge. Since Chatterjee, no one else has had the stamina or resources to mount the costly and difficult battle necessary to obtain another ruling from the Supreme Court of Canada on this issue. You know whose side I’m on.