The following electronic version is for informational purposes only.
The printed version remains the official version.
Certified correct as passed Third Reading on the 13th day of May, 2019
Kate Ryan-Lloyd, Acting Clerk of the House
HONOURABLE MIKE FARNWORTH
MINISTER OF PUBLIC SAFETY
AND SOLICITOR GENERAL
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
1 Section 1 (1) of the Civil Forfeiture Act, S.B.C. 2005, c. 29, is amended
(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]".
2 The following section is added:
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.
3 The heading to Part 3 is repealed and the following substituted:
Part 3 – Court Orders .
4 Section 8 is amended
(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
(c) in subsection (8) by striking out "arise" and substituting "result".
5 Section 9 (2) is amended by striking out "30" and substituting "60".
6 The following Division is added to Part 3:
Division 1.1 – Orders Related to Production
of Information or Records and Preservation of Property
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
(a) commencing proceedings under section 3, or
(b) applying for
(i) an interim preservation order under section 8, or
(ii) an order under section 11.02.
(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.
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
(a) the whole or the portion of the interest in property, or
(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;
(c) an order the court considers appropriate to prevent the property from being
(i) removed from British Columbia, or
(ii) used to engage in unlawful activity;
(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.
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.
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.
7 Section 12 (1) is amended by striking out "section 22.1" and substituting "section 22.01".
8 Section 14.04 (4) (c) (ii) is amended by striking out "time and".
9 Section 15 is renumbered as section 15.01.
10 The following section is added to Part 4:
15 In this Part:
"controlled substance" has the same meaning as in the Controlled Drugs and Substances Act (Canada);
"conviction" means a conviction
(a) that is not subject to appeal or further appeal, or
(b) for which no appeal is taken;
"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
(a) the finding is subject to appeal or further appeal, or
(b) an appeal is being taken in respect of the finding of guilt.
11 Section 15.01 is amended
(a) in subsection (1) by striking out "this Act" and substituting "section 3", and
(b) by repealing subsection (3).
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".
13 Section 17 (1) is repealed.
14 The following sections are added:
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
(a) is owned, controlled or possessed by a person listed in subsection (2), or
(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.
(2) The following persons are listed for the purposes of subsection (1):
(a) a member of a criminal organization, as defined in the Criminal Code;
(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.
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
(b) the record suspension has neither been revoked nor ceased to have effect.
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
(a) in proximity to a controlled substance, or
(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.
19.04 (1) In this section:
"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.
19.05 (1) In this section, "peace officer" means
(a) an officer as defined in the Police Act,
(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
(c) a person in a prescribed class of persons.
(2) In proceedings under Part 2 or 3 or section 14.11, proof that
(a) a driver of a motor vehicle
(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
(ii) used the motor vehicle to flee from a peace officer, and
(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.
15 Section 22.1 is renumbered as section 22.01.
16 The following Division is added to Part 5:
Division 1.1 – Notice to Produce Information
22.02 (1) In this section, "financial institution" means
(a) a savings institution,
(b) a trust company, or
(c) a person or entity in a prescribed class of persons or entities.
(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:
(a) the director has reason to believe that
(i) the whole or a portion of an interest in property is proceeds of unlawful activity, or
(ii) property is an instrument of unlawful activity;
(b) the director has reason to believe that the property referred to in paragraph (a) (i) or (ii) is in British Columbia;
(c) the director has reason to believe that
(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;
(ii) the nature and type of the account;
(iii) whether the account is active;
(iv) the names and addresses of all account holders, and
(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;
(c) apply for an order under section 11.01 or 11.02.
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.
17 Section 23.1 is renumbered as section 23.01.
18 Section 38 (2) is amended by adding the following paragraphs:
(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]; .
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.
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
(a) began before the date this section comes into force, or
(b) is scheduled to begin within 12 months after the date this section comes into force.
Offence 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".
Unclaimed Property 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".
23 This Act comes into force on the date of Royal Assent.