Civil Forfeiture

From Criminal Law Notebook

General Principles

Most provinces have a provincial Act that relates to the forfeiture of property relating to criminal activity.[1]

The purpose of the Acts are to:[2]

  1. to take the profit out of unlawful activity;
  2. to prevent the use of property to unlawfully acquire wealth or cause bodily injury; and
  3. to compensate victims of crime and fund crime prevention and remediation.

The civil forfeiture regimes have the effect to "take the profit out of crime and to deter its present and would-be perpetrators."[3]

The Acts will grant the applicant with the authority to "seize money and other things shown on a balance of probabilities to be tainted by crime and thereafter to allocate the proceeds to compensating victims of and remedy societal effects of criminality."[4]

Civil forfeiture falls within the valid legislative power of the provinces.[5]

  1. Civil Forfeiture Act, SBC 2005, c 29 (BC)
    Civil Forfeiture Act, SNS 2007, c 27, (NS)
    Civil Forfeiture Act, SNB 2010, c C-4.5, (NB)
    Civil Remedies Act, 2001, SO 2001, c 28, (ON)
    The Seizure of Criminal Property Act, 2009, SS 2009, c S-46.002 (SK)
    The Criminal Property Forfeiture Act, CCSM c C306 (MB)
    Victims Restitution and Compensation Payment Act, SA 2001, c V-3.5, (AB)
    An Act respecting the forfeiture, administration and appropriation of proceeds and instruments of unlawful activity, CQLR c C-52.2
    PEI and Newfoundland do not have civil forfeiture legislation
  2. British Columbia (Director of Civil Forfeiture) v Wolff, 2012 BCCA 473 (CanLII), BCJ No 2420, per Newbury JA, at paras 15 to 16 - regarding the Civil Forfieture Act (BC) and the Civil Remedies act (ONT)
  3. BC v Wolff, supra, at paras 15 to 16
  4. BC v Wolff, supra, at para 15
  5. Chatterjee v Ontario (Attorney General), 2009 SCC 19 (CanLII), [2009] 1 SCR 624, per Binnnie J - civil forfeiture falls under s. 92 regarding property and civil rights of the Constitution Act, 1867 and not the criminal law power of the federal government


Charter Rights in Relation to Civil Forfeiture

An owner of the property sought to be forfeited still has a remedy of exclusion of evidence under s. 24(2) of the Charter for a violation of his procedural rights.[1]

The Charter may still apply even though the accused is not charged with an offence but rather they would attract "true penal consequences."[2]

  1. see e.g. Alberta (Minister of Justice and Attorney General) v Squire, 2012 ABQB 194 (CanLII), 537 AR 177, per Sullivan J
  2. R v Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 SCR 541, per Wilson J ("In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.")

See Also