Qp Date

Civil Forfeiture Act

[SBC 2005] CHAPTER 29

Assented to November 24, 2005

Contents
Part 1 — Interpretation
 1 Definitions
 2 Application
Part 2 — Forfeiture Orders
 3 Application for forfeiture order
 4 Parties and notification
 5 Forfeiture order
 6 Relief from forfeiture
 7 Effective date of forfeiture order
Part 3 — Interim Preservation Orders, Protection Orders and Other Related Orders
 Division 1 — Interim Preservation Orders
 8 Interim preservation order
 9 Application made without notice
 10 Receiver manager
 11 Personal Property Security Act
 Division 2 — Protection Orders and Other Orders Related to Forfeiture
 12 Definition
 13 Protection order
 14 Orders related to forfeiture orders and protection orders
Part 3.1 — Administrative Forfeiture of Subject Property
 14.01 Definitions
 14.02 Application of this Part
 14.03 Subject property is forfeited to government
 14.04 Notice of forfeiture under this Part
 14.05 Public body entitled to possession
 14.06 How notice is given to known interest holders
 14.07 Notice of dispute by claimed interest holder
 14.08 If director receives notice of dispute
 14.09 What happens if no notice of dispute is received by director
 14.10 Effective date of forfeiture under this Part
 14.11 Innocent failure to deliver notice of dispute under this Part
Part 4 — Proceedings, Presumptions and Proof
 15 Proceedings
 16 Standard of proof
 17 Proof of unlawful activity
 18 If no conviction or finding of unlawful activity
 19 Determination respecting proceeds of unlawful activity
 20 Presumption of advancement
Part 5 — Administration
 Division 1 — Director
 21 Director
 22 Powers, functions and duties of director
 22.1 Personal liability protection
 Division 2 — Filing Notice of Application
 23 Filing notice in registries
 Division 3 — Notice of Intent to Commence Proceedings
 23.1 Notice of intent to commence proceedings
Part 6 — Distribution of Proceeds
 24 Definitions
 25 Establishment of civil forfeiture account
 26 Allocation of funds
 27 Payment out of civil forfeiture account
 28 Application for compensation
 29 Payment to eligible victim
 30 Manner of payment
 31 Reconsideration of decision
 32 Repayment of excess compensation received
Part 7 — General Provisions
 33 If possession is unlawful
 34 Obligations of government on forfeiture
 35 Limitation periods
 36 Application of section 21 (3) of Financial Administration Act
 37 Section 5 of Offence Act does not apply
 38 Regulations
 39 Consequential Amendment
 40 Commencement

Part 1 — Interpretation

Definitions

1  (1) In this Act:

"court" means the Supreme Court;

"director" means a person who is designated as director under section 21 (1);

"forfeiture order" means a court order made under section 5 (1) or (2);

"instrument of unlawful activity" means any of the following:

(a) property that has been used to engage in unlawful activity that, in turn,

(i)   resulted in or was likely to result in the acquisition of property or an interest in property, or

(ii)   caused or was likely to cause serious bodily harm to a person;

(b) property that is likely to be used to engage in unlawful activity that may

(i)   result in the acquisition of property or an interest in property, or

(ii)   cause serious bodily harm to a person;

(c) property that is realized from the disposition of property described in paragraph (a) or (b) under an order of the court under section 8 (3) (d) [interim preservation order];

"interest in property" or "interest in the property" means a right, a title, an interest, an estate or a claim to or in property;

"interim preservation order" means a court order made under section 8 (3);

"personal property registry" means the personal property registry established under the Personal Property Security Act;

"proceeds of unlawful activity" means any of the following:

(a) the whole or a portion of an interest in property if the whole or the portion of the interest, as the case may be, is acquired directly or indirectly as a result of unlawful activity;

(b) the whole or a portion of an interest in property that is equivalent in value to the amount of an increase in value of the whole or the portion of the interest in property if the increase in value results directly or indirectly from unlawful activity;

(c) the whole or a portion of an interest in property that is equivalent in value to the amount of a decrease in a debt obligation secured against the interest or the portion of the interest in property, if the decrease in debt obligation results directly or indirectly from unlawful activity;

(d) property that is realized from the disposition of the whole or a portion of an interest in property described in paragraph (a), (b) or (c) under an order of the court under section 8 (3) (d) [interim preservation order];

"property" means a parcel of real property or tangible or intangible personal property and, for greater certainty, includes cash;

"protection order" means an order made by a court under section 13 (1);

"receiver manager" means a person who is appointed as a receiver manager under section 8 (3) (c);

"security interest" means security interest as defined in the Personal Property Security Act;

"unlawful activity" means an act or omission described in one of the following paragraphs:

(a) if an act or omission occurs in British Columbia, the act or omission, at the time of occurrence, is an offence under an Act of Canada or British Columbia;

(b) if an act or omission occurs in another province of Canada, the act or omission, at the time of occurrence,

(i)   is an offence under an Act of Canada or the other province, as applicable, and

(ii)   would be an offence in British Columbia, if the act or omission had occurred in British Columbia;

(c) if an act or omission occurs in a jurisdiction outside of Canada, the act or omission, at the time of occurrence,

(i)   is an offence under an Act of the jurisdiction, and

(ii)   would be an offence in British Columbia, if the act or omission had occurred in British Columbia,

but does not include an act or omission that is an offence

(d) under a regulation of a corporation, or

(e) under an enactment of any jurisdiction if the enactment or the jurisdiction is prescribed under this Act.

(2) For the purpose of the definition of "proceeds of unlawful activity", "equivalent in value" means equivalent in value as determined or established by the regulations.

Application

2  (1) This Act applies to an unlawful activity occurring before, on or after the date this section comes into force.

(2) This Act applies to proceeds of unlawful activity, whether or not

(a) the acquisition of the whole or the portion of an interest,

(b) the increase in the value of the whole or the portion of an interest, or

(c) the decrease in the debt obligation,

as referred to in the definition of "proceeds of unlawful activity", occurred before, on or after the coming into force of this Act.

Part 2 — Forfeiture Orders

Application for forfeiture order

3  (1) The director may apply to the court for an order forfeiting to the government

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

(b) the portion of an interest in property that is proceeds of unlawful activity.

(2) The director may apply to the court for an order forfeiting to the government property that is an instrument of unlawful activity.

(3) An application for a forfeiture order under this section applies only with respect to property or an interest in property located in British Columbia.

Parties and notification

4  (1) In proceedings commenced under section 3 (1), the director must name as a party

(a) a person who is a registered owner of the whole or the portion of the interest in property that is the subject of the application for forfeiture, and

(b) a person who the director has reason to believe is an unregistered owner of the whole or the portion of the interest in property that is the subject of the application for forfeiture.

(2) In proceedings commenced under section 3 (2), the director must name as a party

(a) a person who is a registered owner of the property that is the subject of the application for forfeiture, and

(b) a person who the director has reason to believe is an unregistered owner of the property that is the subject of the application for forfeiture.

(3) In proceedings commenced under section 3 (1) or (2), the director must

(a) notify a person if required to do so by the court or the regulations, and

(b) notify a person in the manner established by the regulations, unless the court orders a different manner of notification.

Forfeiture order

5  (1) Subject to section 6, if proceedings are commenced under section 3 (1), the court must make an order forfeiting to the government the whole or the portion of an interest in property that the court finds is proceeds of unlawful activity.

(2) Subject to section 6 and section 13 (1), if proceedings are commenced under section 3 (2), the court must make an order forfeiting to the government property that the court finds is an instrument of unlawful activity.

Relief from forfeiture

6  (1) If a court determines that the forfeiture of property or the whole or a portion of an interest in property under this Act is clearly not in the interests of justice, the court may do any of the following:

(a) refuse to issue a forfeiture order,

(b) limit the application of the forfeiture order;

(c) put conditions on the forfeiture order.

(2) In the case of property that is proceeds of unlawful activity, the court may grant relief from forfeiture under subsection (1) if a party to the proceedings commenced under section 3 (1) proves both of the following:

(a) she or he did not, directly or indirectly, acquire the property as a result of unlawful activity committed by the party;

(b) she or he

(i)   was the rightful owner of the property before the unlawful activity occurred and was deprived of possession or control of the property by means of the unlawful activity,

(ii)   acquired the property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity, or

(iii)   acquired the property from

(A)  a person who was the rightful owner of the property before the unlawful activity occurred and who was deprived of possession or control of the property by means of the unlawful activity, or

(B)  a person who acquired the property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity.

Effective date of forfeiture order

7  (1) A forfeiture order made with respect to property or the whole or a portion of an interest in property, as applicable, is effective,

(a) in the case of real property or an interest in real property registered in the land title office,

(i)   at the time a notice is filed under section 23 (1) with respect to the property or the whole or a portion of an interest in property, or

(ii)   at the time the forfeiture order is filed in the land title office with respect to the property or the whole or a portion of an interest in property, if no notice is filed under section 23 (1), and

(b) subject to subsection (2), in the case of personal property that is not cash or the whole or a portion of an interest in personal property that is not cash, at the time a notice is registered under section 14.04 (1) (a) or 23 (2) with respect to the property or the whole or a portion of an interest in the property.

(2) A forfeiture order made with respect to personal property, or the whole or a portion of an interest in personal property, that is cash or is or would be refused registration in the personal property registry by the registrar under the Personal Property Security Act, is deemed to be effective on the date that proceedings are commenced under section 3, and the order is retroactive to the extent necessary to give it force and effect on and after that date.

Part 3 — Interim Preservation Orders, Protection Orders and Other Related Orders

Division 1 — Interim Preservation Orders

Interim preservation order

8  (1) As part of a proceeding under section 3 (1) for forfeiture of the whole or a portion of an interest in property, the director may make an application to court for one or more interim preservation orders 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 interest in property is held.

(2) As part of a proceeding under section 3 (2) for forfeiture of property, the director may make an application to court for one or more interim preservation orders in relation to the property.

(2.1) The director may make an application under subsection (1) or (2) on her or his own initiative or on consent of one or more parties to the proceeding under section 3.

(3) On application under subsection (1) or (2), the court may make one or more of the following orders relating to the preservation, management 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 possession, delivery to the director or safekeeping of property;

(c) an order appointing a person to act as a receiver manager for property or the whole or a portion of an interest in property;

(d) 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;

(e) an order directing that the money arising from the disposition of the property or the whole or the portion of an interest in the property under paragraph (d) be paid into court pending the conclusion of the proceeding under section 3;

(f) for the purpose of securing performance of an obligation imposed by an order made under Part 2 of this Act or under this Part, an order granting to the director a lien for an amount set by the court on property or the whole or the portion of an interest in property;

(g) 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;

(h) an order the court considers appropriate for the preservation of

(i)   the property or the whole or the portion of an interest in the property,

(ii)   the value of the property or of the whole or the portion of an interest in the property, or

(iii)   the rights of creditors and other interest holders;

(i) subject to subsection (8), any other order that the court considers appropriate in the circumstances.

(4) The amount set by the court under subsection (3) (f) is deemed for the purposes of the Personal Property Security Act

(a) to be the full value of the property or the whole or portion of the interest in property that is the subject of the proceedings, unless the court orders otherwise, and

(b) to include the expenses referred to in section 59 (2) (a) of the Personal Property Security Act.

(5) Unless it is clearly not in the interests of justice, the court must make an interim preservation 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.

(6) An application with respect to an interim preservation order applies only with respect to property or an interest in property located in British Columbia.

(7) On application of the director, the land title office may release a lien referred to in subsection (3) (f).

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

Application made without notice

9  (1) Subject to subsection (2), a court may make an interim preservation order under section 8 without notice to any person.

(2) An order made without notice under subsection (1) may not be made for a period greater than 30 days.

(3) A court may grant one or more extensions to an order referred to in subsection (2) only if notice of the application to extend the order is given to every person who is required by the court to be given notice of the application, other than a person who, in the opinion of the court,

(a) has been evading service,

(b) is unable to be located, in spite of the director's reasonable efforts, or

(c) need not be served because of exceptional circumstances.

Receiver manager

10  (1) A person appointed to act as a receiver manager under section 8 (3) (c) is the receiver manager of the property or the whole or a portion of the interest in property specified by the court.

(2) If directed by the court, a receiver manager

(a) may receive and hold property or the whole or a portion of an interest in property and dispose of property or the whole or a portion of an interest in property in the ordinary course of business,

(b) has the authority to manage the business and affairs conducted in relation to the property or the whole or a portion of the interest in property of the person named, and

(c) has all the incidental powers necessary to hold and manage the property or the whole or a portion of the interest in property.

Personal Property Security Act

11  (1) Despite section 4 (a) of the Personal Property Security Act, but subject to this section, the Personal Property Security Act applies with respect to a lien granted under this Act and the enforcement of a lien granted under this Act on personal property or the whole or a portion of an interest in property that is personal property.

(2) Sections 64, 65 and 66 (1) (a) of the Personal Property Security Act do not apply to a receiver manager appointed under section 8 of this Act.

(3) If an order under section 8 gives the director a lien on personal property or the whole or a portion of an interest in property that is personal property,

(a) the lien is deemed to be a security interest taken in the personal property or the whole or a portion of the interest in property, as applicable, to secure the payment of the amount of the lien granted by a court under section 8, and

(b) the lien is deemed to continue until it is discharged by the director.

(4) The director, by registration of the lien under the Personal Property Security Act, perfects the lien as if the lien were a security interest perfected under that Act.

(5) Sections 58 (3) to (5), 62 and 67 of the Personal Property Security Act do not apply to this Act.

Division 2 — Protection Orders and Other Orders Related to Forfeiture

Definition

12  (1) In this Division and in section 22.1, "uninvolved interest holder" means a person who

(a) owns, at the time of application for an order under section 3, the whole or a portion of an interest in property that is an instrument of unlawful activity, and

(b) did not directly or indirectly engage in the unlawful activity that is the basis of the application referred to in paragraph (a).

(2) A person who indirectly engaged in the unlawful activity that is the basis of the application referred to in subsection (1) (a) includes, without limitation, a person who had knowledge of the unlawful activity and received a financial benefit from the unlawful activity.

Protection order

13  (1) Subject to subsection (3), if a court finds

(a) that property is an instrument of unlawful activity, and

(b) that a person is an uninvolved interest holder with respect to that property,

the court must make the orders necessary to protect the interest in the property held by the uninvolved interest holder.

(2) A protection order issued with respect to property that is subject to a forfeiture order has effect from the date that the forfeiture order is effective or is deemed to be effective, unless the court orders otherwise.

(3) A court may refuse to issue a protection order if the issuance is clearly not in the interests of justice.

Orders related to forfeiture orders and protection orders

14  On application, a court may make, at the time of or subsequent to making a forfeiture order under section 5, one or more of the following orders:

(a) an order requiring

(i)   the disposition or transmission of property or the whole or the portion of the interest in property forfeited, or

(ii)   the disposition or transmission of property that includes the whole or the portion of the interest in property forfeited;

(b) an order directing the manner of disposition of property or the whole or the portion of the interest in property referred to in paragraph (a) (i) or (ii), including the appointment of a receiver manager to manage and dispose of the property or the whole or the portion of the interest in property;

(c) an order directing that the money arising from the disposition of property or the whole or the portion of the interest in property referred to in paragraph (a) (i) or (ii) is applied in accordance with the direction of the court after taking into account all encumbrances;

(d) an order requiring the severing or partition of property, or the whole or a portion of an interest in property;

(e) an order requiring the cancellation of the whole or a portion of an interest in property;

(f) an order providing that, subject to the interest of an uninvolved interest holder or another person, the government, on forfeiture, may take possession of or seize

(i)   the property forfeited or the property in which an interest in property or a portion of an interest in property is forfeited, or

(ii)   the interest in property or a portion of an interest in property that is forfeited;

(g) any other order that the court considers appropriate in the circumstances.

Part 3.1 — Administrative Forfeiture of Subject Property

Definitions

14.01  (1) In this Part:

"dispute period" means, in relation to a subject property, a period which ends on the later of the following dates:

(a) 60 days after the date on which notice is published in a newspaper or the Gazette under section 14.04 (3);

(b) 60 days after notice is deemed to have been received by all known interest holders under section 14.06;

"known interest holder" means, in relation to a subject property, a person to whom the director is to give notice of forfeiture of the subject property under section 14.04 (1) (b) (i), (ii) or (iii);

"protected interest holder" means, in relation to a subject property, a person who

(a) owns a registered interest in the whole or a portion of the subject property, and

(b) did not directly or indirectly engage in the unlawful activity that is the basis of forfeiture under this Act;

"public body" means any of the following:

(a) an entity with which the director has an information-sharing agreement under section 22 (4);

(b) a public body referred to in section 22 (5);

"subject property" means property described in section 14.02 (1) and to which this Part applies.

Application of this Part

14.02  (1) This Part applies if

(a) the director has reason to believe that

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

(ii)   property, other than real property, is an instrument of unlawful activity,

(b) the director has reason to believe that the fair market value of the property referred to in paragraph (a) (i) or (ii) is $75 000 or less,

(c) the property referred to in paragraph (a) (i) or (ii) is in British Columbia and is in the possession of a public body, and

(d) the director has no reason to believe that there are any protected interest holders in relation to that property.

(2) This Part does not apply to property described in subsection (1) of this section if

(a) the director has reason to believe that the limitation period for commencing proceedings under section 3 [application for forfeiture order] in relation to the property has expired, or

(b) subject to subsection (3) of this section, proceedings are commenced under section 3 in relation to the property.

(3) Despite subsection (2) of this section, if under section 14.08 (a) the director commences proceedings under section 3 in relation to the subject property, the public body entitled to maintain possession of the subject property under section 14.05 continues to be entitled to maintain possession of that property until expiry of the 30 day period described in section 14.05 (a).

(4) This Part does not apply in relation to property if the property is the subject of an order of a court establishing a right of possession in that property with a person other than the public body or authorizing a person other than the public body to have or take possession of that property.

Subject property is forfeited to government

14.03  Subject to sections 14.04 to 14.10, subject property is forfeited to the government for disposal by the director without having to commence proceedings under section 3.

Notice of forfeiture under this Part

14.04  (1) The director must do the following to initiate forfeiture in relation to any subject property:

(a) register in the personal property registry notice of forfeiture under this Part in relation to the subject property, unless the subject property is cash or is or would be refused registration in the personal property registry;

(b) subject to section 14.06 (2), give written notice of forfeiture under this Part to each of the following:

(i)   the person from whom the subject property was seized;

(ii)   any other person claiming to be lawfully entitled to possession of the subject property;

(iii)   a person who the director has reason to believe may be a registered or unregistered owner of an interest in the subject property;

(iv)   the public body in possession of the subject property;

(c) in accordance with subsections (2) and (3) of this section, publish notice of forfeiture under this Part in relation to the subject property.

(2) Notice under subsection (1) (a) must state

(a) that the property is subject to forfeiture under this Part, and

(b) that the property and all interests in the property may be affected by forfeiture under this Part.

(3) Notice under subsection (1) (c) must be

(a) published in a newspaper of general circulation in British Columbia and circulating in or near the area in which the subject property was seized, or

(b) published in the Gazette.

(4) Notice under subsection (1) (b) and (c) must

(a) describe the subject property,

(b) state that the property is subject to forfeiture under this Part,

(c) indicate

(i)   where the subject property was seized,

(ii)   the time and date of the seizure, and

(iii)   the basis for the seizure, and

(d) contain other information, if any, that may be prescribed under section 38 (2) (e.1).

Public body entitled to possession

14.05  On receiving notice respecting a subject property under section 14.04 (1) (b) (iv), a public body is entitled to maintain possession of the subject property, despite any other claim or interest or right of possession in the property, until the later of the following:

(a) 30 days after the director gives the public body notice of the direction taken under section 14.08;

(b) 30 days after the director notifies the public body under section 14.09 (2) [director to take possession].

How notice is given to known interest holders

14.06  (1) Notice to a known interest holder may be given by registered mail to the last known address of the known interest holder.

(2) The notice requirement of section 14.04 (1) (b) does not apply if the address of a person referred to in that provision is unknown to the director.

(3) Notice sent by registered mail under this section is deemed to have been served on the person to whom it is addressed on the 7th day after deposit with Canada Post unless the person received actual service before that day.

Notice of dispute by claimed interest holder

14.07  (1) A person who claims to have an interest in subject property may dispute forfeiture under this Part by filing a notice of dispute with the director in accordance with this section.

(2) A notice of dispute under this section must be accompanied by a solemn declaration that

(a) identifies the nature of the person's interest in the subject property,

(b) includes the following:

(i)   the name of the person disputing forfeiture under this Part;

(ii)   an address for service of documents for the person disputing the forfeiture;

(iii)   the reasons for disputing that forfeiture,

(c) is made

(i)   on oath or by solemn affirmation by the person or, in the case of a corporation, by an individual authorized by the corporation for the purpose of filing a notice of dispute under this section, and

(ii)   before a commissioner for taking affidavits for British Columbia, and

(d) is signed by the person making the oath or solemn affirmation and by the commissioner before whom it is made.

(3) A person wishing to dispute under this section must deliver the notice of dispute to the director before the expiry of the dispute period.

(4) For the purpose of this section, a notice of dispute that is delivered by mail is deemed to have been delivered on the date on which it was mailed.

If director receives notice of dispute

14.08  Within 30 days of receiving a notice of dispute under section 14.07, the director must do the following:

(a) commence proceedings under section 3 or withdraw from proceeding under this Act in relation to the subject property;

(b) give notice to the public body and each known interest holder of the direction taken under paragraph (a).

What happens if no notice of dispute is received by director

14.09  (1) If, by the 7th day after expiry of the dispute period, the director does not receive a notice of dispute to forfeiture under this Part of a subject property, the subject property is forfeited to the government for disposal by the director.

(2) For the purposes of subsection (1), the director must

(a) notify the public body in possession of the subject property of its forfeiture to the government under this Part,

(b) in the case of subject property that is a motor vehicle or trailer, direct the Insurance Corporation of British Columbia to transfer registration of the motor vehicle or trailer under the Motor Vehicle Act to the government, and

(c) take possession of or seize the subject property and dispose of it.

(3) The Insurance Corporation of British Columbia must transfer registration of a motor vehicle or trailer in accordance with a direction received under subsection (2) (b).

Effective date of forfeiture under this Part

14.10  Forfeiture of a subject property under section 14.09 is deemed to be effective immediately on expiry of the dispute period under this Part.

Innocent failure to deliver notice of dispute under this Part

14.11  (1) This section applies to a person who claims to have had an interest in subject property at the time of its forfeiture under section 14.09 but who failed to deliver a notice of dispute in respect of the forfeiture in accordance with section 14.07.

(2) Subject to this section, Part 4 and section 35, a claimant under subsection (1) of this section may commence proceedings in court against the government.

(3) In proceedings commenced under subsection (2) of this section, the claimant must establish that

(a) the claimant's failure to deliver a notice of dispute under and in accordance with section 14.07 was not wilful or deliberate, and

(b) the proceedings were commenced as soon as reasonably possible after the claimant learned of the forfeiture.

(4) It is a defence to proceedings under this section if the director establishes either of the following in relation to the subject property:

(a) the whole or a portion of an interest in the subject property would have been proceeds of unlawful activity had proceedings been commenced under section 3 (1) in relation to the subject property before forfeiture under this Part;

(b) the subject property would have been an instrument of unlawful activity if proceedings had been commenced under section 3 (2) in relation to the subject property before forfeiture under this Part.

(5) A defence under subsection (4) (a) fails if the court finds that

(a) the claimant did not, directly or indirectly, acquire the subject property as a result of unlawful activity committed by the claimant, and

(b) the claimant

(i)   was the rightful owner of the subject property before the unlawful activity occurred and was deprived of possession or control of the property by means of the unlawful activity,

(ii)   acquired the subject property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity, or

(iii)   acquired the subject property from

(A)  a person who was the rightful owner of the subject property before the unlawful activity occurred and who was deprived of possession or control of the property by means of the unlawful activity, or

(B)  a person who acquired the subject property for fair value after the unlawful activity occurred and did not know and could not reasonably have known at the time of the acquisition that the property was proceeds of unlawful activity.

(6) A defence under subsection (4) (b) fails if the court finds that the claimant did not directly or indirectly engage in the unlawful activity that would have been the basis of the proceedings under section 3 (2) had such proceedings been commenced before forfeiture under this Part.

(7) For the purposes of subsection (6), a person who indirectly engaged in the unlawful activity that would have been the basis of the proceedings referred to in subsection (6) includes, without limitation, a person who had knowledge of the unlawful activity and received a financial benefit from the unlawful activity.

(8) The court must order the government to pay a claimant who is successful in proceedings under this section an amount that is the lesser of the following:

(a) the value of the claimant's interest in the subject property at the time of forfeiture;

(b) the liquidated value of the subject property that the government received on the subject property's disposition.

(9) The amount of payment ordered under subsection (8) must be paid by the director out of the civil forfeiture account in accordance with section 27 [payment out of civil forfeiture account].

(10) Other than an amount a court may order to be paid under this section, no other compensation is payable to any person by the government, the director, a public body or an employee of a public body and no other proceedings may be commenced or maintained to claim compensation from the government, the director, a public body or an employee of a public body as a result of forfeiture under this Part.

Part 4 — Proceedings, Presumptions and Proof

Proceedings

15  (1) The director may commence proceedings under this Act by

(a) a petition proceeding or, if Rule 17-1 of the Supreme Court Civil Rules applies, a requisition proceeding, or

(b) an action.

(2) All proceedings under Parts 2 and 3 are in rem and not in personam.

(3) Subsection (1) (a) of this section does not apply to proceedings referred to in section 14.11.

(4) Proceedings under section 14.11 may only be commenced by an action.

(5) Proceedings under section 14.11 are in personam and not in rem.

Standard of proof

16  Findings of fact in proceedings under section 3 or 14.11 and the discharge of any presumption are to be made on the balance of probabilities.

Proof of unlawful activity

17  (1) In this section:

"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;

"found guilty" has a corresponding meaning to the definition of "finding of guilt".

(2) In proceedings under section 3 or 14.11, proof that a person was convicted, found guilty or found not criminally responsible on account of a mental disorder in respect of an offence that constitutes an unlawful activity is proof that the person engaged in the unlawful activity.

(3) A certificate that

(a) sets out a copy of the charge and whether or not there was a conviction or finding of guilt with respect to the charge, and

(b) purports to be signed by

(i)   the officer having custody of the records of the court in which the offender was convicted or found guilty, or

(ii)   a person authorized to act for the officer,

is, on proof of the identity of the person named in the certificate as the offender, sufficient evidence of the conviction of that person or the finding of guilt against that person, without proof of the signature or the official position of the person purporting to have signed the certificate.

(4) A certificate that

(a) sets out a copy of the charge and a finding of not criminally responsible on account of a mental disorder with respect to the charge, and

(b) purports to be signed by

(i)   the officer having custody of the records of the court in which the person named was found not criminally responsible on account of a mental disorder, or

(ii)   a person authorized to act for the officer,

is, on proof of the identity of the person named in the certificate as the person who was charged, sufficient evidence of the finding that the person named was found not criminally responsible on account of a mental disorder, without proof of the signature or the official position of the person purporting to have signed the certificate.

(5) If proof of a conviction, a finding of guilt or a finding that a person was not criminally responsible on account of a mental disorder is admitted in evidence under this section, the contents of the information, complaint or indictment relating to the offence for which the person was convicted, found guilty or found not criminally responsible on account of a mental disorder is admissible in evidence.

If no conviction or finding of unlawful activity

18  In proceedings under section 3 or 14.11, an unlawful activity may be found to have occurred even if

(a) no person has been charged with an offence that constitutes the unlawful activity, or

(b) a person charged with an offence that constitutes the unlawful activity was acquitted of all charges in proceedings before a criminal court or the charges are withdrawn or stayed or otherwise do not proceed.

Determination respecting proceeds of unlawful activity

19  In proceedings under section 3 or 14.11, proof that a person

(a) participated in an unlawful activity that resulted in or is likely to have resulted in the person receiving a financial benefit, and

(b) subsequently did one or more of the following:

(i)   acquired the whole or the portion of an interest in property that is the subject of the proceedings;

(ii)   caused an increase in the value of the interest or the portion of the interest in property that is the subject of the proceedings;

(iii)   caused a decrease of a debt obligation secured against the interest or the portion of the interest in property that is the subject of the proceedings,

is proof, in absence of evidence to the contrary, that the whole or the portion of the interest in property that is the subject of the proceedings is proceeds of unlawful activity as a result of the unlawful activity referred to in paragraph (a).

Presumption of advancement

20  For the purposes of this Act, the presumption of advancement does not apply to a transfer of property or of an interest or a portion of an interest in property.

Part 5 — Administration

Division 1 — Director

Director

21  (1) The minister may in writing designate as director a person who is appointed under the Public Service Act.

(2) The director may delegate, with or without conditions, any or all of the powers, functions and duties of the director under this Act to a person or class of persons.

(3) A delegation under subsection (2) must be in writing and may include any terms or conditions the director considers advisable.

Powers, functions and duties of director

22  (1) In this section, "public body" means public body as defined in the Freedom of Information and Protection of Privacy Act.

(2) The director may administer and dispose of property or the whole or a portion of an interest in property under this Act in accordance with the orders of the court, this Act and the regulations.

(3) Without restricting section 21 (2), the director's powers, duties and functions include

(a) collecting and managing the use and disclosure of information and maintaining records for the purposes of this Act and, on the basis of information collected, determining if proceedings should be commenced under this Act,

(b) commencing and conducting proceedings under this Act, and

(c) managing the distribution of proceeds from property, an interest in property or a portion of an interest in property forfeited to the government under this Act.

(4) Subject to the regulations, the director may enter into information-sharing agreements that are reasonably required by the director in order to exercise his or her powers or perform his or her functions and duties under this Act with the following:

(a) Canada, a province or another jurisdiction in or outside of Canada;

(b) a public body.

(5) Subject to the regulations, the director is entitled to information that is

(a) in the custody or control of a public body prescribed by the Lieutenant Governor in Council, and

(b) reasonably required by the director in order to exercise his or her powers or perform his or her functions and duties under this Act.

(6) A public body that has custody or control of information to which the director is entitled under subsection (5) must, on request, disclose that information to the director.

(7) This section applies despite any other enactment, but is subject to a claim of privilege based on a solicitor-client relationship.

Personal liability protection

22.1  (1) Subject to subsections (2) and (3), no legal proceeding for damages lies or may be commenced or maintained against the director or a person acting on behalf of or under the direction of the director because of anything done or omitted

(a) in the performance or intended performance of any function or duty under this Act, or

(b) in the exercise or intended exercise of any power under this Act.

(2) Subsection (1) does not apply to a person referred to in that subsection in relation to anything done or omitted by that person in bad faith.

(3) Subsection (1) does not operate to prohibit a proceeding that is commenced or maintained under section 14.11 or a legal proceeding for damages that is commenced or maintained by an uninvolved interest holder as defined in section 12.

Division 2 — Filing Notice of Application

Filing notice in registries

23  (1) After commencing proceedings under section 3 that relate to real property or the whole or a portion of an interest in property that is real property registered in the land title office, the director may file, in the prescribed manner, in the land title office the prescribed form of notice setting out that the proceedings commenced may affect the real property or the whole or a portion of an interest in the property that is the real property referred to in the notice.

(2) After commencing proceedings under section 3 that relate to personal property or the whole or a portion of an interest in property that is personal property, the director may register, in the prescribed manner, in the personal property registry the prescribed form of notice setting out that the proceedings commenced may affect the personal property or the whole or a portion of an interest in the property that is the personal property referred to in the notice.

(3) The director may amend, extend or cancel a notice referred to in subsection (1) or (2) by filing or registering, in the same manner as the notice was filed or registered, the amendment, extension or cancellation in the land title office or the personal property registry, as applicable.

(4) The registrar under the Land Title Act must register a notice, and an amendment, an extension or a cancellation of a notice referred to in subsection (1), if

(a) the notice, amendment, extension or cancellation is filed in the prescribed manner, and

(b) the prescribed fee, if any, is paid to the registrar.

(5) A notice and an amendment or extension of a notice registered under subsection (4) has the same effect as a certificate of pending litigation registered under the Land Title Act.

Division 3 — Notice of Intent to Commence Proceedings

Notice of intent to commence proceedings

23.1  (1) In this section:

"court" means the Provincial Court, the Supreme Court or the Court of Appeal;

"public body" means any of the following:

(a) an entity with which the director has an information-sharing agreement under section 22 (4);

(b) a public body referred to in section 22 (5).

(2) If the director intends to commence proceedings under section 3 in relation to personal property that is in the possession of a public body, the director may serve notice of that intent on the public body.

(3) Subsection (2) does not apply to personal property if the property is the subject of an order of a court establishing a right of possession in that property with a person other than the public body or authorizing a person other than the public body to have or take possession of that property.

(4) If notice is served on a public body under subsection (2),

(a) the director must, within 30 days after the notice is served,

(i)   commence proceedings under section 3 in relation to the personal property, or

(ii)   withdraw notice of the intent to commence proceedings, and

(b) the public body is entitled to maintain possession of the personal property, despite any other claim of an interest or right of possession in the property, until the earlier of the following:

(i)   30 days after the notice is served;

(ii)   the date on which notice is withdrawn under paragraph (a) (ii) of this subsection.

(5) Subsection (4) (b) does not apply if proceedings are commenced under section 3 in relation to the personal property and the court makes an order under section 8 transferring possession of the personal property to the director or another person.

(6) This section does not apply to property if the director initiates forfeiture in relation to that property under Part 3.1 [Administrative Forfeiture of Subject Property].

Part 6 — Distribution of Proceeds

Definitions

24  In this Part and Part 7:

"civil forfeiture account" means the special account established by section 25;

"eligible victim" means a person who

(a) suffered pecuniary loss as a direct result of an unlawful activity that resulted in forfeiture under this Act of property or the whole or a portion of an interest in property,

(b) did not directly or indirectly engage in the commission of the unlawful activity, and

(c) meets the criteria prescribed under this Act.

Establishment of civil forfeiture account

25  (1) There is established a special account in the consolidated revenue fund called the civil forfeiture account.

(2) The civil forfeiture account consists of money paid into the account under section 26.

Allocation of funds

26  The director must pay into the civil forfeiture account

(a) cash forfeited to the government under this Act,

(b) proceeds resulting from the disposition of property or the whole or a portion of an interest in property forfeited to the government under this Act, and

(c) money paid to the government in settlement of an application or action under this Act.

Payment out of civil forfeiture account

27  (1) Subject to this Act and the regulations, the director may make payments out of the civil forfeiture account for one or more of the following purposes:

(a) compensation of eligible victims;

(b) prevention of unlawful activities;

(c) remediation of the effect of unlawful activities;

(d) administration of the Act, including, without limitation, any costs related to the preservation, management or disposition of property or the whole or a portion of an interest in property for purposes of this Act;

(d.1) compliance with an order of the court under section 14.11 (8);

(e) other prescribed purposes.

(2) The director may make payments out of the civil forfeiture account for purposes referred to in subsection (1) (e) only with the approval of the Minister of Finance.

Application for compensation

28  A person may apply, in accordance with the regulations, for compensation from the civil forfeiture account as an eligible victim.

Payment to eligible victim

29  (1) Subject to this Act and the regulations and on receipt of an application under section 28, the director may pay an amount to an eligible victim in the circumstances and subject to the conditions and limitations that the director considers appropriate.

(2) Despite subsection (1), the director may not pay the eligible victims of an unlawful activity a total amount that exceeds the net proceeds, as determined by the regulations, resulting from the disposition of property or the whole or a portion of an interest in property forfeited as a result of the unlawful activity.

Manner of payment

30  In compensating an eligible victim under section 27, the director may do the following:

(a) pay an eligible victim in one or more installments;

(b) prorate payments in accordance with the regulations among eligible victims or a category of eligible victims.

Reconsideration of decision

31  On application to the director, or on the director's own initiative, the director may reconsider a decision under section 29 or 30 respecting the payment of compensation or eligibility for compensation.

Repayment of excess compensation received

32  If an eligible victim receives from the civil forfeiture account money that is in excess of the amount awarded to the eligible victim under this Act, the eligible victim is liable to repay to the government the amount of compensation to which that eligible victim was not entitled.

Part 7 — General Provisions

If possession is unlawful

33  For the purposes of a proceeding under this Act, a person may not claim to have an interest in property if, under the law of Canada or British Columbia, it is unlawful for that person to possess the property.

Obligations of government on forfeiture

34  If property or the whole or a portion of an interest in property is forfeited under this Act, the government does not, as a result of the forfeiture, assume responsibility for any covenants, debts or other obligations under an encumbrance, a lien or another security interest to which the property or the whole or the portion of the interest in property is subject.

Limitation periods

35  (1) The time limit for the director commencing an action, a petition proceeding or a requisition proceeding under this Act is 10 years from the date on which the unlawful activity occurred.

(2) The time limit for a person commencing an action against the government under section 14.11 is 2 years after expiry of the dispute period under Part 3.1.

Application of section 21 (3) of Financial Administration Act

36  Section 27 applies despite section 21 (3) of the Financial Administration Act.

Section 5 of Offence Act does not apply

37  Section 5 of the Offence Act does not apply to this Act or the regulations.

Regulations

38  (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) governing the giving of notice of proceedings under this Act, including service of notice and deemed service of notice and setting out the persons or classes of persons who are to be notified;

(b) respecting compensation of eligible victims under this Act, including the application for and the information in support of an application for compensation under this Act;

(c) respecting circumstances when no payment of compensation may be made to an eligible victim or a category of eligible victims;

(d) respecting the process for adjudication of an application for compensation and the factors to be considered in determining the amount, if any, of compensation to be awarded to an eligible victim;

(e) establishing circumstances when an amount is required to be deducted or set off from an amount that is to be paid under this Act to an eligible victim;

(e.1) prescribing information for the purposes of section 14.04 (4) (d) [notice of forfeiture under Part 3.1];

(f) respecting the registration under the Personal Property Security Act of a notice under section 14.04 (1) (a) or 23 (2) of this Act, and the legal effect of that registration;

(g) respecting the disposition of

(i)   a property forfeited or a property in which an interest in property or a portion of an interest in property is forfeited, or

(ii)   an interest in property or a portion of an interest in property that is forfeited;

(h) respecting the civil forfeiture account and payments from that account;

(i) defining a word or expression used but not otherwise defined in this Act;

(j) prescribing fees that are to be paid under this Act;

(k) prescribing forms for the purposes of this Act;

(l) establishing circumstances in which the director may enter into an agreement referred to in section 22 (4);

(m) establishing preconditions to the director being entitled to information under section 22 (5) from a public body or class of public body, or to a type of information;

(n) establishing one or more methods or formulas for determining the interest or portion of an interest in property that is equivalent in value for the purpose of the definition of "proceeds of unlawful activity";

(o) determining net proceeds for the purposes of section 29 (2), including the establishment of one or more methods of calculating net proceeds.

(3) In making regulations under this section, the Lieutenant Governor in Council may do one or more of the following:

(a) make different regulations for different circumstances or classes of persons, property or unlawful activities;

(b) delegate a matter to a person;

(c) confer a discretion on a person.

Consequential Amendment

[Note: See Table of Legislative Changes for the status of this provision.]

Section(s) Affected Act
39   Court Rules Act

Commencement

40  This Act comes into force by regulation of the Lieutenant Governor in Council.