CIVIL FORFEITURE

Firestone and Tyhurst offers our services as litigators to fight for you if you get a Notification of a Claim, of if you are sued by the British Columbia Director of Civil Forfeiture. We have successfully defended these type of case and remain up to date with the current law in the area.

A claim to forfeit property involves the Government of British Columbia through their Director of Civil Forfeiture taking steps in the civil courts to take away your property. It is a serious matter and you will need legal help if you wish to challenge the seizure and forfeiture.

Based on Precedents in the United States and Ontario the Province of British enacted a Civil Forfeiture law to permit the Government of British Columbia through  a “Director of Civil Forfeiture” to seize assets (homes, cash, cars, retirement portfolios, bank accounts) of residents of this Province. The Director of Civil Forfeiture has been given the power to enforce the legislation and can sue and be sued as a result.

The legislation has been amended to permit the seizure of assets under $75,000.00 with a simple Notice to the property owner. This notice provision does not include claims against Real Property. The 2011 amendments require the asset owner to put in a notice of dispute within the statutory  time period or face forfeiture without ever having to end up in court.

The Civil Forfeiture process is a civil (not criminal) process set up to give the Director of Civil Forfeiture the power to proceed to forfeit property in the circumstances set out in the legislation. It is not dependent upon the outcome of a criminal case or a criminal investigation by the police. A civil forfeiture action may be started against you in 2 different ways:

1.    A notice is sent to you of the Director’s intention to forfeit your property (not Real Estate);

2.    Where property is valued at over $75,000.00 the Director starts an action in BC Supreme Court which is served upon you to Order that your property is forfeit.

As the legislation is new there are many potential legal challenges to the process and each case tends to be unique. Accordingly, the need to get legal help at the start is very important. Please do not loose your property by your own inaction.

The power of the Director under the relevant legislation is alarmingly broad. A lawyer who represents himself has a fool for a client. If written notice is provided to seize property, or if you are sued, you should contact a lawyer immediately. On one of my Civil Forfeiture cases I had a client who had attempted to file and rely upon a Statement of Defence (now a Response to Civil Claim) prepared by the self represented client. It was a disaster and the Director was within a few days of obtaining a default judgment forfeiting an entire home which would have lost the client many years of sweat equity. I was able to stop that process by some phone calls and letters and the filing of the correct legal paper work. But I still marvel how close that client was from actually loosing all his equity in his home because he had filed the wrong document and the Director’s lawyers were attempting to use the BC Supreme Court rules to get a default judgment. The Government lawyers use the BC Supreme Court rules with skill and judgment and their purpose is to succeed in forfeiting your assets.

The fundamental reality of the Civil Forfeiture legislation is that it gives the Government of British Columbia a competitive advantage in a civil legal context to take assets away from residents of British Columbia. As the usual place for this kind of litigation is the British Columbia Supreme Court a working knowledge of the Supreme Court rules is a fundamental requirement and that is why you need your own lawyer to protect your interests.

In Canada we do not recognize a privilege against self incrimination. In the United States you hear in popular culture: “I Plead the fifth”. We have no equivalent in Canada. In a civil case each side has the right to Discover the other. A Defendant in all Civil cases has the responsibility to obtain all material documents relevant to the legislation and to be the subject a Discovery (a pre-trial procedure before a Court reporter under oath). In many cases the first witness for the Director is the Defendant.

There has been a recent interesting trial decision upheld by the British Columbia Court of Appeal that permitted a Defendant in a civil forfeiture case to challenge an unreasonable search of a home and to argue a charter violation before being subject to Discovery on the main file. Put another way, the court in applying the Supreme Court Civil rules accepted a way to delay the discovery process until it was determined whether the search of the home at issue was or was not lawful  pursuant to the Charter of Rights and whether the evidence should be excluded from the civil trial. Presumably if the evidence was obtained in breach of the Charter and excluded the Director’s case will fail. The final chapter on process has not been written and the law continues to evolve in British Columbia.

The unvarnished reality of the law in this area is that the Government of British Columbia have some very smart and capable lawyers dedicated to use the full force of the British Columbia Supreme Court Rules to crush the citizenry in this area. The government has allot more financial resources than the average citizen. The government lawyers are well paid civil servants with pensions and benefits. The usual Plaintiff has to factor in the costs of legal cases when determining whether to proceed. This is not the case when the government is in effect the Plaintiff. In real terms they have a lot more fire power than the average Plaintiff. When faced with an aggressive Plaintiff such as the Director of Civil Forfeiture, the average Defendant has to take a very practical response to this type of litigation. Negotiations and resolutions normally result in these type of cases because it is just frankly too expensive to take a case like this to trial.

In all Supreme Court Civil cases the Court has the discretion to order costs to the successful party. The law of court costs are  actually quite complex but in simple terms the successful party usually gets their costs based on a tariff of costs set up by the Court. It is possible that an unsuccessful Defendant could not only loose the assets at issue, pay their own lawyers bill and also be facing a large costs order depending on how long the trial proceeded and how many interlocutory motions and proceedings occurred.

A note to landlords:

I am called upon from time to time to deal with the innocent landlord who had no idea there was a grow operation in the rented home. The law requires landlords not to be reckless or wilfully blind. In all leases the landlord should place in a term of the lease that specifically says no grow operations shall be permitted and that monthly exceptions shall occur on 24 hour notice to the tenant. A failure to have those terms in a lease can be fatal if a grow operation is found in the residence. Failure to do regular inspections can result in the real possibility of loosing the entire equity in the rental home. Keep a record of your regular inspections and if you find a grow operation, notify the police, and have them dismantle it and make sure they know you are innocent. If you are reluctant to deal with the police directly hire a lawyer and get advice.

Civil Forfeiture is different than a criminal prosecution. The Criminal Code has their own forfeiture provisions but they require an actual conviction and the Criminal Code defines what is “offence related property” and defines what may be forfeited, including real property. Of note, an acquittal on a criminal charge is no bar to a separate Civil Forfeiture law suit. Just as O J Simpson was found not guilty of murder he was later found civilly liable in a separate civil law suit you can face further a further civil process following an acquittal.

Peter Firestone and Catherine Tyhurst regularly take retainers to challenge the procedures brought by the Director of Civil Forfeiture. We do our best to assist the client to be “rational consumers of legal services” and to try to work out a resolution that makes financial sense.

One of the things we as lawyers do not like about this legislation and process is that the Director uses to their advantage the legal costs of defending this type of litigation. We are very well aware that it may be cheaper to negotiate a resolution whereby our potential legal fees to defend the case are used to pay the Director to settle the case rather than pay us to defend your case.

In every civil case there are risks of loosing and paying the other side their costs. No lawyer can ever guarantee a result and each case must be carefully considered in terms of the evidence and the law. There are some recent decisions of the Superior Courts where the Director has lost but they are definitely in the minority. In our experience after the pleadings are exchanged and the case is discovered, settlements regularly occur. Your case may be different. If you are facing the Director you are not alone. Call us and make an appointment to come and see us. The first half hour is without charge. Peter Firestone