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2011 Legislative Session: 3rd Session, 39th Parliament

THIRD READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

Certified correct as passed Third Reading on the 16th day of May, 2011

Ian D. Izard, Q.C., Law Clerk

HONOURABLE SHIRLEY BOND

MINISTER OF PUBLIC SAFETY AND SOLICITOR GENERAL

BILL 6 – 2011

CIVIL FORFEITURE AMENDMENT ACT, 2011

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

Section 7 of the Civil Forfeiture Act, S.B.C. 2005, c. 29, is amended

(

a) by repealing subsection (1) (

b) and substituting the following:

(

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. , and

(

b) in subsection (2) by striking out " that is or would be refused registration in the personal property registry " and substituting " that is cash or is or would be refused registration in the personal property registry ".

2 The following

Part is added:

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 in 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.

Section 15 is amended by adding the following subsections:

(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 .

Section 16 is amended by striking out " Findings of fact in proceedings under this Act " and substituting " Findings of fact in proceedings under

section 3 or 14.11 ".

Section 17 (2) is amended by striking out " In proceedings under this Act, " and substituting " In proceedings under

section 3 or 14.11, ".

Section 18 is amended by striking out " In proceedings under this Act, " and substituting " In proceedings under

section 3 or 14.11, ".

Section 19 is amended

(

a) by striking out " In an application for forfeiture made under

section 3 (1), " and substituting " In proceedings under

section 3 or 14.11, ", and

(

b) by striking out " property that is the subject of the application " wherever it appears and substituting " property that is the subject of the proceedings ".

Section 22 (2) is amended by striking out " in accordance with the orders of the court and the regulations " and substituting " in accordance with the orders of the court, this Act and the regulations ".

Section 22.1 (3) is amended by striking out " Subsection (1) does not operate to prohibit " and substituting " Subsection (1) does not operate to prohibit a proceeding that is commenced or maintained under

section 14.11 or ".

Section 23.1 is amended by adding the following subsection:

(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] .

Section 27 (1) (

d) is repealed and the following substituted:

(

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); .

Section 35 is repealed and the following substituted:

Limitation periods

(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.

Section 38 (2) is amended

(

a) by adding the following paragraph:

(e.1) prescribing information for the purposes of

section 14.04 (4) (d) [notice of forfeiture under

Part 3.1] ; , and

(

b) in paragraph (

f) by striking out " under

section 23 (2) of this Act, " and substituting " under

section 14.04 (1) (

a) or 23 (2) of this Act, ".

Consequential Amendments

Offence Act

Section 24.2 of the Offence Act, R.S.B.C. 1996, c. 338, is amended

(

a) by adding the following subsections:

(1.1) Subsection (1) of this

section does not apply if, under

section 14.04 (1) (b) (iv) or 23.1 of the Civil Forfeiture Act , the director under that Act serves notice of forfeiture under

Part 3.1 of that Act or notice of intent to commence proceedings, as the case may be, on the responsible official having custody of the thing seized, unless

(

a) that notice is withdrawn under

section 14.08 (

a) or 23.1 (4) (a) (ii) of that Act, or

(

b) in the case of notice of intent to commence proceedings, the 30 day period referred to in

section 23.1 (4) (

a) of that Act expires and no proceedings are commenced under

section 3 of that Act in relation to the thing seized.

(8) This

section does not apply if, in relation to a thing seized, proceedings are commenced under

section 3 of the Civil Forfeiture Act or the property is forfeited and disposed of by the director under

Part 3.1 of that Act. , and

(

b) by repealing subsection (7) and substituting the following:

(7) Despite anything in this section, a thing must not be returned, forfeited or disposed of under an order under subsection (4) until the later of the following:

(a) 30 days after the order is made under subsection (4);

(

b) if the order under subsection (4) is appealed, 30 days after the decision on the appeal has been given.

Unclaimed Property Act

Part 1 of the Unclaimed Property Act, S.B.C. 1999, c. 48, is amended by adding the following section:

Application

1.1 This Act does not apply to money or property in respect of which, under

section 14.04 (1) (b) (iv) or 23.1 of the Civil Forfeiture Act , the director under that Act serves notice of forfeiture under

Part 3.1 of that Act or notice of intent to commence proceedings, as the case may be, on a public body that has possession of the money or property, unless

(

a) that notice is withdrawn under

section 14.08 (

a) or 23.1 (4) (a) (ii) of that Act, or

(

b) in the case of notice of intent to commence proceedings, the 30 day period referred to in

section 23.1 (4) (

a) of that Act expires and no proceedings are commenced under

section 3 of that Act in relation to the money or property.

Commencement

16 This Act comes into force on the date of Royal Assent.

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c) Queen’s Printer, Victoria, British Columbia, Canada