Q: How are criminals able to pay their defense lawyers? Shouldn't their assets be seized by the B.C. Criminal Forfeiture Office as proceeds of crime? What happens if a criminal has a spouse or dependents? Can they lose their homes, vehicles, bank accounts, investments, etc. because of the criminal's actions?
A: The concept of civil forfeiture is fairly new, and case law around it is still being established. Last week the Supreme Court of Canada rejected a request to hear an appeal regarding Ontario's civil forfeiture law.
Since B.C. introduced the Civil Forfeiture Act in 2006, the B.C. Civil Forfeiture Office (CFO) has taken possession of $49 million in assets and returned more than $16 million to British Columbians in the form of grants to crime prevention programs, victim service programs, and victims of fraud and phony investment schemes, according to information released by the Ministry of Justice.
However, just because a person is convicted of a crime doesn't mean their assets are automatically subject to forfeiture.
Under B.C. law, the CFO has the power to launch forfeiture proceedings against any property that a law enforcement agency believes to be "proceeds of unlawful activity" or "an instrument of unlawful activity."
Under the act, property includes things like real estate; tangible personal property such as vehicles, cash, jewelry, firearms, etc.; or intangible property such as bank accounts.
CFO executive director Phil Tawtel said the agency has no power to seize property and relies on referrals from law enforcement agencies.
Police frequently seize property as part of criminal investigations, Tawtel said, and if the police believe they have evidence to show the property is the proceeds of crime, or is being used to commit crimes, they refer the information to the CFO.
The CFO then reviews the information itself to determine if there is sufficient evidence to prove in court the police's case against the property, and then either decides to launch a forfeiture proceeding or not.
"Our [court] actions are against the property, not people," Tawtel said. "There may be five people involved, their may be none."
That means that a person may have their property subject to civil forfeiture, even though they have not been charged and convicted of a crime.
As an example, he said if the police raided a drug house and found a large amount of drugs and cash -but all the suspects fled and nobody was charged -the CFO could still potentially launch a civil forfeiture proceeding against the cash because "it's quite logically associated with the [sale of drugs.]"
Since it's inception, the CFO has acted on 2,050 out of about 2,500 referrals it has received. Of those, 1,500 have been concluded and about 600 are ongoing.
The agency uses four criteria to determine if it will proceed with a forfeiture case: Is there sufficient evidence? Is the action in the interests of justice? Is it in the public interest? And does it make economic sense to litigate this action?
If the court does not agree with the the CFO's case, a judge can rule against the forfeiture.
In a case earlier this month, the B.C. Supreme Court ruled against the forfeiture of a Kelowna woman's pickup truck.
Police in Kelowna had impounded the truck after her common-law husband was suspected, but never charged, with driving it while impaired and prohibited from driving.
The court ruled there wasn't enough evidence to show the truck was being used unlawfully.
And anyone who's property is subject to a civil forfeiture proceeding can try to prove in court that the property wasn't purchased with the proceeds of crime, isn't being used to commit crimes or that they are an uninvolved interest holder.
An involved interest holder is someone who has legitimate, non-criminal, financial interest in the property. For example, if two people own a home and one of the spouses is found to be embezzling money and the other person had no idea of their spouse's criminal activity, the innocent spouse's portion of the home's value would be protected from forfeiture.
That might mean the home is sold the uninvolved spouse is paid out their portion, or is given the option to purchase the forfeited percentage of the property.
That happened in the case of Kirsten Sabrina Campbell Fredin in Prince George earlier this month.
It launched a forfeiture proceeding against 34 pieces of jewelry and almost $25,000 in cash that had been in her now-deceased mother's safety deposit box.
The CFO has alleged that Fredin was the girlfriend of now-dead gangster Joey Arrance, and that their income came solely from the sale of drugs. It argued the cash and jewelry was being held in Fredin's mother's safety deposit box to prevent it from being seized by the RCMP.
The B.C. Supreme Court ruled that nine of the pieces of jewelry, worth almost $200,000, and the cash were subject to forfeiture -but the remaining jewelry was ordered to be returned to Fredin's mother's estate.
In addition, the court ruled that 20 per cent of the cash had to be returned to the executor of Arrance's estate.
But new court rulings are being made all the time, as seven provinces have now adopted a civil forfeiture mechanism, and those ruling will determine the ground rules for civil forfeitures in the future.
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