Civil Forfeiture: Difference between revisions
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==General Principles== | ==General Principles== | ||
Most provinces have a provincial Act that relates to the forfeiture of property relating to criminal activity.<ref> | Most provinces have a provincial Act that relates to the forfeiture of property relating to criminal activity.<ref> | ||
Civil Forfeiture Act, [http://canlii.ca/t/l3g1 SBC 2005, c 29] (BC)<br> | Civil Forfeiture Act, [http://canlii.ca/t/l3g1 SBC 2005, c 29] (BC)<br> | ||
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The purpose of the Acts are to:<ref> | The purpose of the Acts are to:<ref> | ||
British Columbia (Director of Civil Forfeiture) v Wolff, [http://canlii.ca/t/ftvnb 2012 BCCA 473] (CanLII){{perBCCA| Newbury JA}}{{ | ''British Columbia (Director of Civil Forfeiture) v Wolff'', [http://canlii.ca/t/ftvnb 2012 BCCA 473] (CanLII){{perBCCA| Newbury JA}}{{atsL|15 to 16|http://canlii.ca/t/ftvnb#par15}} - regarding the Civil Forfieture Act (BC) and the Civil Remedies act (ONT)<br> | ||
</ref> | </ref> | ||
#to take the profit out of unlawful activity; | #to take the profit out of unlawful activity; | ||
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The civil forfeiture regimes have the effect to "take the profit out of crime and to deter its present and would-be perpetrators."<ref> | The civil forfeiture regimes have the effect to "take the profit out of crime and to deter its present and would-be perpetrators."<ref> | ||
{{supra1|BC v Wolff}}{{ | {{supra1|BC v Wolff}}{{atsL|15 to 16|http://canlii.ca/t/ftvnb}}<br> | ||
</ref> | </ref> | ||
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."<ref> | 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."<ref> | ||
{{supra1|BC v Wolff}}{{ | {{supra1|BC v Wolff}}{{atL|15|http://canlii.ca/t/ftvnb}}<br> | ||
</ref> | </ref> | ||
Civil forfeiture falls within the valid legislative power of the provinces.<ref> | Civil forfeiture falls within the valid legislative power of the provinces.<ref> | ||
Chatterjee v Ontario (Attorney General), [2009] 1 SCR 624, [http://canlii.ca/t/23447 2009 SCC 19] (CanLII){{perSCC|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 | ''Chatterjee v Ontario (Attorney General)'', [2009] 1 SCR 624, [http://canlii.ca/t/23447 2009 SCC 19] (CanLII){{perSCC|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 | ||
</ref> | </ref> | ||
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; Charter Rights in Relation to Civil Forfeiture | ; 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.<ref> | 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.<ref> | ||
see e.g. Alberta (Minister of Justice and Attorney General) v Squire, [http://canlii.ca/t/fqq64 2012 ABQB 194] (CanLII){{perABQB| Sullivan J}} | see e.g. ''Alberta (Minister of Justice and Attorney General) v Squire'', [http://canlii.ca/t/fqq64 2012 ABQB 194] (CanLII){{perABQB| Sullivan J}} | ||
</ref> | </ref> | ||
Revision as of 12:03, 14 August 2019
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]
- to take the profit out of unlawful activity;
- to prevent the use of property to unlawfully acquire wealth or cause bodily injury; and
- 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]
- ↑
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 - ↑
British Columbia (Director of Civil Forfeiture) v Wolff, 2012 BCCA 473 (CanLII), per Newbury JA, at to 16#parhttp://canlii.ca/t/ftvnb#par15 paras http://canlii.ca/t/ftvnb#par15{{{3}}} - regarding the Civil Forfieture Act (BC) and the Civil Remedies act (ONT)
- ↑
BC v Wolff, supra, at to 16#parhttp://canlii.ca/t/ftvnb paras http://canlii.ca/t/ftvnb{{{3}}}
- ↑
BC v Wolff, supra, at para http://canlii.ca/t/ftvnb
- ↑ Chatterjee v Ontario (Attorney General), [2009] 1 SCR 624, 2009 SCC 19 (CanLII), 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
Procedure
- 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]
- ↑ see e.g. Alberta (Minister of Justice and Attorney General) v Squire, 2012 ABQB 194 (CanLII), per Sullivan J
- ↑ R v Wigglesworth, [1987] 2 SCR 541, 1987 CanLII 41 (SCC), 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.")