When British Columbia’s government introduced its plan to overhaul civil forfeiture in the province, many heralded this as a change that would positively address concerns over money laundering in casinos and the real estate market. Others criticized the regime, calling it unconstitutional. Their biggest complaint was that the process reversed the onus in the proceedings.
Currently, in order for property to be seized under civil forfeiture laws, the Crown must show that the asset was used in the commission of an offence, or derived from the commission of an offence. The classic examples of this are vehicles used by dial-a-dope couriers, cash from drug sales, or houses purchased with the proceeds of crime laundered through the real estate market.
The problem has been that this is often difficult for the Crown to establish, and defence lawyers have taken to arguing that violations of Charter rights in the investigations should lead to exclusion of the evidence in civil proceedings – so making it easier for the Crown to prosecute these claims was something many wanted.
But reversing the onus may go too far.
And while there is certainly merit in the complaint that putting a burden on a person to prove that their assets were not derived from or used to commit unlawful activity, this is far from the most significant concern in the legislation that is currently being debated in the legislature.
Indeed, given the state of the public outcry about money laundering in British Columbia, it is likely that a constitutional challenge would withstand scrutiny given the pressing and substantial concern that it is addressing. Laws in Canada are permitted to violate the Charter where they address a real concern, and do so in a proportional way that minimally impairs Charter rights. In other contexts in administrative proceedings in British Columbia, the reverse onus has been found to be constitutionally valid. So the people challenging the law on this basis will have an uphill battle.
But there are more problematic aspects of this law that have had little attention, and have caused little outcry.
The biggest concern is how the police will now be able to seize the vehicles of any driver who fails to stop “in a reasonable time” without any belief that they are otherwise involved in criminal activity.
Yes, the new civil forfeiture bill states that police can seize a motor vehicle, to be sold for the profit of the government, if two conditions are met:
1) the driver of the vehicle fails to stop in a reasonable time when signalled to do so by a police officer,
2) the vehicle was driven in a manner that could have caused harm to a person.
Nowhere in the legislation does it define what a “reasonable time” is to stop a vehicle, or what manner of driving will amount to driving that “could have caused harm” to a person.
Look, according to government statistics 47 people died where they were not wearing a seatbelt in the vehicle. This means that under the law, as it is drafted, if you are signalled to pull over for not wearing a seatbelt, and instead of stopping right away you drive the extra half block to your driveway so you’re home and parked, you could have your vehicle seized under civil forfeiture laws.
This is the very definition of giving police too much power to seize vehicles and abuse the civil forfeiture process. And yet there is no massive criminal profiteering associated with a person who drives in this fashion.
This law also exposes women, visible minorities, and Indigenous people to greater abuse by the police. Women are frequently told to drive to a well-lit area before stopping, even when signalled by a police officer. Visible minorities and Indigenous people may not feel comfortable stopping in a dark, unfrequented area given police abuse and racial profiling concerns. And yet, if they are stopped for speeding or distracted driving – both leading causes of road deaths – these individuals then face losing their vehicles through civil forfeiture.
And this is where the burden shift becomes the most problematic. The law presumes in that circumstance that you are driving the vehicle for a criminal purpose. As though the reason the vulnerable person drove a few extra blocks was so that they could conceal their thousands of fentanyl pills.
Oh, but it gets worse.
The law also clearly violates human rights by treating individuals who have previously been found not guilty of an offence for reason of a mental disorder or defect as though they have been found guilty. A new definition for “convicted” has been included in the law, that now presumes that those who have been previously convicted of criminal organization offences are still involved in those criminal organizations. And this applies to people who have been found not guilty because of a mental illness.
Yes, the law presumes your guilt where you were found not guilty because of a bona fide mental health issue. And that so-called conviction now follows you into the civil forfeiture process. The government can now take the belongings of people who have struggled with legitimate health concerns, preventing their rehabilitation and exposing some of the most vulnerable people in society to potential for state abuses.
This should not stand. It is appalling that the government would draft legislation that clearly makes our most vulnerable sectors of the population: women, the mentally ill, and visible minorities and Indigenous people, targets for government cash revenue.
And for those who say that we can trust the police to only enforce civil forfeiture laws against the real criminals, they need look no further than the United States, where such abuses run rampant.
For those that think that the innocent will be exonerated in the hearing, they should bear in mind that currently legal aid does not cover representation at civil forfeiture proceedings. And individuals who are most at risk under this law are also least likely to be able to afford costly legal representation. Plus, what value is there in hiring a lawyer and paying that lawyer hundreds or thousands of dollars to recover a vehicle with a value of only a few thousand dollars anyway? Most lawyers will advise these clients to cut their losses. And the government knows that. It’s already operating on those tactics.
These new civil forfeiture powers are going to affect innocent people, but mostly innocent people who cannot speak up for themselves or who are significantly disadvantaged against state interests. Innocent, vulnerable people will be hurt by these laws. And that’s what should outrage everyone.