Forfeiture of Seized Property


  • General
  • Recovery of Seized Money
  • Seizure of Vehicles and Real Property
  • Civil Forfeiture Act

General

Seizure of property can occur any time there is a search, be it a search of a person, a vehicle, a residence or an institution. How that property is disposed of varies according to a number of circumstances. Generally, the police will be able to retain possession of any property that is evidence of a crime until a trial is concluded. The property will then either be returned or forfeited to the Crown. The police have a discretion to return property at an earlier time. If they refuse, a court may order it. Contraband (ie narcotics or prohibited weapons) will not be returned under any circumstances and will be destroyed.

Recovery of Seized Money

It is not illegal to possess large quantities of cash inside Canada’s borders. However, if the police find you in possession of thousands of dollars in cash, however, they will undoubtedly seize it on the basis that your possession of this cash amounts to reasonable and probable grounds to believe you are in possession of the proceeds of crime. The law requires that the police report the seizure to a Justice of the Peace and obtain a Detention Order in respect of the funds. This Order – which the police will get almost automatically – will last 90 days, following which it is very common for the police to seek an extension for a further 9 months. During this time, the police will be taking steps to try and establish grounds for a charge of Possessing Proceeds Of Crime or, at the very least, establish that the money is tainted by criminality. A very basic step, for example, is for the police to run a serial number check on the money to connect it with other investigations elsewhere in Canada. If the money is shown to be proceeds of crime, it may be forfeited to the Crown. The standard of proof the Crown must meet in applying for forfeiture will vary depending upon whether or not you are first convicted of a “designated drug offence”. In some circumstances, then, it is critical to secure an acquittal on the substantive offence if there is to be a reasonable prospect of securing the return of seized funds.

To make matters worse, the police often inform the Canada Revenue Agency of the seizure, thus creating tax problems for the person from whom it was seized. When we recover your money, we can sometimes settle these tax issues at the same time.

Seizure of Vehicles and Real Property

Property is not only subject to forfeiture as proceeds of crime, it is also subject to forfeiture if it is found to be “offence-related property”. This issue arises most often in cases where a person has used his or her residence to produce narcotics. The Crown in those cases will put a restraining order on the property preventing the owner from selling it. Assuming they later secure a conviction, they will seek forfeiture of the owner’s interest in the property to the Crown. This process has also been used to secure forfeiture of vehicles, for example those used in “dial-a-dope” operations.

If you are charged with a drug offence alleged to have occurred in a residence or a vehicle of which you have an ownership interest, you should obtain immediate legal advice on what steps you can take to protect your house or vehicle from forfeiture.

Civil Forfeiture Act

In 2005, British Columbia enacted the Civil Forfeiture Act. The effect of this statute is that the provincial government may seize or freeze assets if it can establish that they were obtained as a result of “unlawful activity”. The civil rules of procedure apply to these proceedings, meaning that if you defend the seizure of your house, car or other personal property, you can be examined on oath to explain how you managed to purchase these items through legitimate means.

DISCLAIMER
The statement above is not legal advice. It is simply intended to give a very general understanding of the law in this area. For legal advice on search and seizure, recovery and forfeiture, click here.