Bill 11 – 2019: Civil Forfeiture Amendment Act, 2019

HONOURABLE MIKE FARNWORTH
MINISTER OF PUBLIC SAFETY
AND SOLICITOR GENERAL

BILL 11 – 2019

CIVIL FORFEITURE AMENDMENT ACT, 2019

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

SECTION 1: [Civil Forfeiture Act, section 1] amends definitions consequential to the addition by this Bill of section 11.02 to the Act.

(a) in paragraph (c) of the definition of "instrument of unlawful activity" by adding "or 11.02 (3) (b) [preliminary order to preserve property]" after "section 8 (3) (d) [interim preservation order]", and

(b) in paragraph (d) of the definition of "proceeds of unlawful activity" by adding "or 11.02 (3) (b) [preliminary order to preserve property]" after "section 8 (3) (d) [interim preservation order]".

SECTION 2: [Civil Forfeiture Act, section 4.01] adds a requirement that a response to proceedings commenced under section 3 must identify the nature of the person's interest in the property.

Response must identify interest in property

4.01 A person who files a response to proceedings commenced under section 3 must identify in the response the nature of the interest that the person claims in the property that is the subject of the application for forfeiture.

SECTION 3: [Civil Forfeiture Act, heading to Part 3] amends the heading consequential to the addition by this Bill of Division 1.1 to Part 3 of the Act.

SECTION 4: [Civil Forfeiture Act, section 8] clarifies references for consistency with the addition by this Bill of section 11.02 to the Act.

(a) in subsections (1) and (2) by striking out "may make an application to court" and substituting "may apply to the court",

(b) in subsection (2.1) by striking out "may make an application" and substituting "may apply for an order", and

SECTION 5: [Civil Forfeiture Act, section 9] amends the maximum period for which an order may be made under the section, from 30 days to 60 days.

SECTION 6: [Civil Forfeiture Act, sections 11.01 to 11.04]

authorizes the court, on application by the director, to make an order for the production of information or records in the custody or control of a person;
authorizes the court, on application made by the director before proceedings are commenced under the Act, to make one or more orders relating to the preservation of property for the purposes of the Act;
provides that orders may be made without notice to any person and that applications for orders must be heard in private;
authorizes the court, on application by a person affected by an order relating to the preservation of property, to vary the order.

Division 1.1 – Orders Related to Production
of Information or Records and Preservation of Property

Order to produce information or
records required by director

11.01 (1) On application of the director, a court may make an order requiring a person to disclose to the director information or records in the custody or control of the person if the court is satisfied that the information or records are reasonably required by the director in order to exercise the director's powers or perform the director's functions and duties under this Act.

(2) The director may apply for an order under subsection (1) before, at the time of or subsequent to

(3) The director must pay to a person who is subject to an order under subsection (1) the reasonable costs of producing, reproducing or delivering the information or records.

Preliminary order to preserve property

11.02 (1) Before commencing a proceeding under section 3 (1) for forfeiture of the whole or a portion of an interest in property, the director may apply to the court for one or more of the orders described in subsection (3) of this section in relation to

(b) the property in which the whole or the portion of the interest in property is held.

(2) Before commencing a proceeding under section 3 (2) for forfeiture of property, the director may apply to the court for one or more of the orders described in subsection (3) of this section in relation to the property.

(3) On application under subsection (1) or (2), the court may make one or more of the following orders relating to the preservation or disposition of property or the whole or a portion of an interest in property for the purposes of this Act:

(a) an order restraining the disposition or transmission of the property or the whole or the portion of the interest in property;

(b) an order for the disposition of the property or the whole or the portion of the interest in property in order to better preserve the value of the property or the whole or the portion of the interest in property;

(d) subject to subsection (6), any other order that the court considers appropriate in the circumstances.

(4) Unless it is clearly not in the interests of justice, the court must make an order applied for under this section if the court is satisfied that one or both of the following constitute a serious question to be tried:

(a) whether the whole or the portion of the interest in property that is the basis of the application under subsection (1) is proceeds of unlawful activity;

(b) whether the property that is the basis of the application under subsection (2) is an instrument of unlawful activity.

(5) An application for an order under this section applies only to property or an interest in property located in British Columbia.

(6) The court must not make any order under subsection (3) (d) that would directly or indirectly reduce the amount of money that would otherwise result from the disposition of the property or the whole or a portion of the interest in property on its forfeiture under this Act.

Order made without notice

11.03 (1) Subject to subsection (2), a court may make an order under section 11.01 or 11.02 without notice to any person.

(2) An order made without notice under section 11.02 may not be made for a period greater than 60 days.

(3) Unless the court orders otherwise, an application for an order under section 11.01 or 11.02 must be heard in private.

Application to vary preliminary order to preserve property

11.04 (1) In this section, "business day" means a day on which the court registries are open for business.

(2) On application of a person affected by an order made under section 11.02, the court may vary the order.

(3) A notice of application brought under subsection (2) of this section must be served at least 2 business days before the date set for the hearing of the application.

SECTION 7: [Civil Forfeiture Act, section 12] is consequential to the renumbering of section 22.1 as section 22.01.

7 Section 12 (1) is amended by striking out "section 22.1" and substituting "section 22.01".

SECTION 8: [Civil Forfeiture Act, section 14.04] removes the requirement to indicate the time of the seizure in a notice under the section.

SECTION 9: [Civil Forfeiture Act, section 15] renumbers the section as section 15.01, consequential to the addition of new definitions by this Bill to Part 4 of the Act.

SECTION 10: [Civil Forfeiture Act, section 15] adds new definitions consequential to amendments made by this Bill to section 17 of the Act.

Definitions

"controlled substance" has the same meaning as in the Controlled Drugs and Substances Act (Canada);

"finding of guilt" includes a finding of guilt by a court, whether or not the court orders an absolute or conditional discharge under section 730 of the Criminal Code, but does not include a finding of guilt if

SECTION 11: [Civil Forfeiture Act, section 15.01] is consequential to the addition by this Bill of sections 11.01 and 11.02 to the Act.

(a) in subsection (1) by striking out "this Act" and substituting "section 3", and

SECTION 12: [Civil Forfeiture Act, sections 16 to 19] is consequential to the addition by this Bill of sections 11.01 and 11.02 to the Act.

12 Sections 16, 17 (2), 18 and 19 are amended by striking out "section 3 or 14.11" and substituting "Part 2 or 3 or section 14.11".

SECTION 13: [Civil Forfeiture Act, section 17] is consequential to the addition by this Bill of section 15 to the Act.

SECTION 14: [Civil Forfeiture Act, sections 19.01 to 19.05] adds new presumptions relating to proving, for the purposes of proceedings under the Act, that property is proceeds of unlawful activity or an instrument of unlawful activity.

Proceeds of unlawful activity –
property of members of criminal organizations

19.01 (1) In proceedings under Part 2 or 3 or section 14.11, proof that the whole or the portion of an interest in property that is the subject of the proceedings

(b) was transferred for less than fair market value and, immediately before the transfer, was owned, controlled or possessed by a person listed in subsection (2)

is proof, in the absence of evidence to the contrary, that the whole or the portion of the interest in property, as the case may be, is proceeds of unlawful activity.

(b) a corporation, if a member of a criminal organization is a director or officer of the corporation or has, directly or indirectly, a controlling interest in the corporation.

(3) Subsection (1) does not apply to the whole or a portion of an interest in property if the fair market value of the whole or the portion of the interest in property is less than $10 000.

Presumption – criminal organization offence

19.02 (1) In proceedings under Part 2 or 3 or section 14.11, proof that a person was convicted, found guilty or found not criminally responsible on account of a mental disorder in respect of a criminal organization offence, as defined in the Criminal Code, is proof, in the absence of evidence to the contrary, that the person is a member of a criminal organization.

(2) Subsection (1) does not apply to a person who was convicted, found guilty or found not criminally responsible on account of a mental disorder in respect of a criminal organization offence if

(a) a record suspension, as defined in the Criminal Records Act (Canada), has been granted under that Act in respect of the criminal organization offence, and

Proceeds of unlawful activity –
cash or negotiable instruments

19.03 In proceedings under Part 2 or 3 or section 14.11, proof that cash or negotiable instruments, with a total value greater than $10 000, were found

(b) in the case of cash, bundled or packaged in a manner not consistent with standard banking practices

is proof, in the absence of evidence to the contrary, that the cash or negotiable instruments are proceeds of unlawful activity.

Instrument of unlawful activity – motor vehicle,
trailer, vessel, aircraft or other conveyance

"after-market compartment" has the same meaning as in the Armoured Vehicle and After-Market Compartment Control Act;

"trafficking" has the same meaning as in the Controlled Drugs and Substances Act (Canada);

"vessel" has the same meaning as in the Canada Shipping Act, 2001 (Canada).

(2) In proceedings under Part 2 or 3 or section 14.11, proof that any of the following were found inside, on or attached to a motor vehicle, trailer, vessel, aircraft or other conveyance is proof, in the absence of evidence to the contrary, that the motor vehicle, trailer, vessel, aircraft or other conveyance is an instrument of unlawful activity:

(a) a restricted firearm or a prohibited firearm, as defined in section 84 (1) of the Criminal Code;

(b) a controlled substance, in circumstances or in a quantity consistent with trafficking in the controlled substance;

(c) equipment, devices or other things related to trafficking in a controlled substance, including any prescribed equipment, devices or other things.

(3) In proceedings under Part 2 or 3 or section 14.11, proof that a motor vehicle or trailer contains an after-market compartment is proof, in the absence of evidence to the contrary, that the motor vehicle or trailer is an instrument of unlawful activity.

Instrument of unlawful activity –
refusing to stop or fleeing from police

(b) a member of the Royal Canadian Mounted Police who is deemed to be a provincial constable under section 14 (2) (b) of the Police Act, or

(i) failed to safely stop the motor vehicle within a reasonable period of time after being signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, or

(b) the driver's use of the motor vehicle could have resulted in serious bodily harm to a person

is proof, in the absence of evidence to the contrary, that the motor vehicle is an instrument of unlawful activity.

SECTION 15: [Civil Forfeiture Act, section 22.1] renumbers the section as section 22.01 to reflect the mathematical decimal system.

SECTION 16: [Civil Forfeiture Act, sections 22.02 and 22.03]

authorizes the director to require that a person produce specified information in specified circumstances;
authorizes the director to require that a person not disclose the existence of the notice to any person;
requires a person who has custody or control of the requested information to disclose the information to the director;
requires the director, as soon as practicable after requiring production of information from a financial institution under the section in relation to property, to

disclose to the owners of the property that a notice has been given,
commence proceedings under the Act in relation to the property and give a notice to the owners of the property, or
apply for an order under section 11.01 or 11.02, as added by this Bill to the Act.

Notice to produce information

(2) The director may give a written notice, in the prescribed form, to a person to produce information described in subsection (3), as specified in the notice, if all of the following apply:

(i) the whole or a portion of an interest in property is proceeds of unlawful activity, or

(b) the director has reason to believe that the property referred to in paragraph (a) (i) or (ii) is in British Columbia;

(i) the person is a financial institution in possession of the whole or the portion of the interest in property referred to in paragraph (a) (i), or

(ii) the person has a registered interest in the property referred to in paragraph (a) (i) or (ii);

(d) the information is reasonably required by the director in order to exercise the director's powers or perform the director's functions and duties under this Act.

(3) A notice under subsection (2) may request that the person provide to the director,

(a) in the case of a person referred to in subsection (2) (c) (i), the following information in relation to any accounts in which the property referred to in subsection (2) (a) (i) is held by the person:

(i) any information necessary to identify the account, including the account number and other particulars;

(b) in the case of a person referred to in subsection (2) (c) (ii), information or particulars related to the interest of the person in the property referred to in subsection (2) (a) (i) or (ii).

(4) A person who has custody or control of information requested by a notice under this section must, within 30 days after receiving the notice, disclose that information to the director.

(5) If the director provides a notice under subsection (2) to a person referred to in subsection (2) (c) (i), the director must, as soon as practicable after providing the notice, do one of the following:

(a) disclose to all account holders identified by the person that a notice was given under this section;

(b) commence proceedings under section 3 in relation to the whole or the portion of the interest in property;

Requirement to not disclose existence of notice

22.03 (1) If reasonably required in order for the director to exercise the director's powers or perform the director's functions and duties under this Act, the director may require in a notice under section 22.02 (2) that the person to whom the notice is given must not disclose to any person the existence of the notice.

(2) If the director has required in a notice under section 22.02 (2) that a person must not disclose to any person the existence of the notice, the person must not disclose the existence of the notice to any person, other than a person in respect of which solicitor-client privilege exists, unless the director advises otherwise in accordance with subsection (3) of this section.

(3) If non-disclosure of a notice under section 22.02 (2) is no longer reasonably required in order for the director to exercise the director's powers or perform the director's functions and duties under this Act, the director must advise the person, as soon as practicable, that the non-disclosure requirement no longer applies.

SECTION 17: [Civil Forfeiture Act, section 23.1] renumbers the section as section 23.01 to reflect the mathematical decimal system.

SECTION 18: [Civil Forfeiture Act, section 38] adds new regulation-making authority.

(f.1) prescribing equipment, devices or other things for the purposes of section 19.04 (2) (c) [instrument of unlawful activity – motor vehicle, trailer, vessel, aircraft or other conveyance];

(k.1) prescribing classes of persons for the purposes of paragraph (c) of the definition of "peace officer" in section 19.05 (1) [instrument of unlawful activity – refusing to stop or fleeing from police];

(m.1) prescribing classes of persons or entities for the purposes of paragraph (c) of the definition of "financial institution" in section 22.02 (1) [notice to produce information]; .

SECTION 19: [Transition – response to proceeding] provides that section 4.01, as added by this Bill to the Act, applies in respect of a response filed after the date that section 19 of this Bill comes into force.

Transition – response to proceeding

19 Section 4.01 of the Civil Forfeiture Act, as enacted by this Act, applies to a response, including an amended response, that is filed after the date this section comes into force, regardless of the date on which the proceeding under section 3 was commenced.

SECTION 20: [Transition – presumptions] provides that sections 19.01 to 19.05, as added by this Bill to the Act, apply to proceedings commenced before the date that section 20 of this Bill comes into force, subject to specified exceptions.

Transition – presumptions

20 (1) Subject to subsection (2) of this section, sections 19.01 to 19.05 of the Civil Forfeiture Act, as enacted by this Act, apply to a proceeding commenced under Part 2 or 3 or section 14.11 of the Civil Forfeiture Act before the date this section comes into force.

(2) Sections 19.01 to 19.05 of the Civil Forfeiture Act, as enacted by this Act, do not apply to a proceeding described in subsection (1) of this section if a trial under Part 12 of the Supreme Court Civil Rules

(b) is scheduled to begin within 12 months after the date this section comes into force.

Consequential Amendments

SECTION 21: [Offence Act, section 24.2] is consequential to the renumbering by this Bill of section 23.1 of the Civil Forfeiture Act.

21 Section 24.2 (1.1) of the Offence Act, R.S.B.C. 1996, c. 338, is amended by striking out "23.1" wherever it appears and substituting "23.01".

SECTION 22: [Unclaimed Property Act, section 1.1] is consequential to the renumbering by this Bill of section 23.1 of the Civil Forfeiture Act.

22 Section 1.1 of the Unclaimed Property Act, S.B.C. 1999, c. 48, is amended by striking out "23.1" wherever it appears and substituting "23.01".

Commencement

Explanatory Notes