Prohibition and Proceeds of Crime legislation have gone together for a long time. But forfeiture has developed into an important issue recently in British Columbia, according to advocates in the BCCLA. Some BC residents who grow marijuana on property they own might be surprised by the Brave New Province they find themselves farming in.

Criminal Forfeiture is Based On Law

“Proceeds of Crime” legislation is not a new thing in Canada. Drafted to combat organized crime in 1997, the Criminal Forfeiture Act works like this: A marijuana grower is legally discovered growing a controlled commodity on their property. The authorities file a charge and the Crown agrees to accept the file. The case is duly prosecuted and the cultivator is found guilty of a breach of the criminal code. Once guilt has been established, the federal government can audit the personal finances of the cultivator. If the funds used to purchase the property cannot be legally accounted for, the Federal Government can seize and sell that property.

Many PPL and DPL cultivators who own property will question the justice of the Criminal Forfeiture Act. But the BCCLA has no problem with the CFA, 1997. They only disagree with the CFA, 2006. Do not let these identical acronyms confuse understanding about this subject. The Provincial Civil Forfeiture Act is totally different from the Federal Criminal Forfeiture Act.  But, like other provinces, the BC government encourages the public to over-simplify these laws. And on the surface, it’s easy to confuse the Criminal Forfeiture Act with the Civil Forfeiture Act. They do have the same abbreviation and, most importantly, the same purpose.

Civil Forfeiture is Based in Equity

But under the Civil Forfeiture Act, asset forfeiture works like this:  A marijuana cultivator is illegally discovered growing a controlled commodity on their property. The authorities do not file a charge. The Crown will not accept a case based on an unlawful search; the Courts will dismiss the charge. The cultivator is never charged, prosecuted, or convicted for any breach of the criminal code. But the Civil Forfeiture Act does not concern the criminal code. It was not designed to determine the probable innocence of people; it regulates the reasonable guilt of property. The high-standards of criminal justice do not apply in a civil action. Human law does not apply to property. Sadly, illegally gathered evidence has been submitted to civil courts as reasonable grounds to seize property. And, even more disturbingly, a property does not need not be a proceed of crime to be indicted. Any legally acquired property, used as an “instrument” of any unlawful activity outlined in the CFA, is subject to seizure. Any marijuana cultivator who holds more than $75,000 worth of equity in a property should understand their true risk. Today, this new system is completely legal. Since 2006, BC CFA regulators have seized and sold forty-two million dollars in property; primarily from residental-scale black and grey-market commercial growers.

The BCCLA Intervenes, to Protect Due Process

The BC Civil-Liberties Association has intervened on a number of cases concerning cultivators and the CFO (Civil Forfeiture Office). The BCCLA is disturbed by the CFA’s power to circumvent or substitute for due process. They argue that the Civil Forfeiture Office uses the CFA to generate revenue, not serve justice. As the CFA can supersede criminal law, profit-based law-enforcement strategies will lead to corruption. The BC Government insists that their system is also designed to combat organized-crime. But statistics demonstrate that BC primarily targets average people, with valuable property, who will be reluctant to contest the seizure. The BCCLA suggests that the CFA program amounts to a severe form of punitive taxation. The introduction of CFO yearly-quotas appears to support this opinion. Clearly, forfeiture is a growth industry in BC. The CFO concedes that ninety-five percent of owners settle out of court on terms favorable to the province. These statistics defy credibility, but they do add up. The CFA is a very broad law, with almost no oversight. Civil litigation is expensive, and the province has virtually-unlimited resources. The burden of proof is reduced and reversed. And many petitioners risk self-incrimination under criminal law if they choose to defend their property in civil court. The BCCLA plans to appeal civil forfeiture until the CFA no longer defames the reputation and ascendancy of criminal law.
In the mean time, the CFA will pose a huge risk to cultivators who farm on property they do not rent. Clearly, the BC government no longer believes in a criminal solution to prohibition. When given a choice between justice and profit, BC will be content to seize a citizen’s property. Left free to reform at some new address, offenders surely must question whether justice has been seized and sold, along with their property.