Civil forfeiture is the process through which a Court of King’s Bench Justice may order the forfeiture of property connected to criminal activity, without a criminal conviction. This article will explain the civil forfeiture procedure in Alberta.
What can the police seize?
Virtually any property could be the subject of civil forfeiture if that property was:
- Acquired by illegal means. For example, property that was stolen could be the subject of civil forfeiture.
- Used as an instrument of illegal activity. For example, a car that was used during a drug deal could be the subject of civil forfeiture.
When can police seize property?
In Alberta, civil forfeiture falls under the framework of the Civil Forfeiture Act. This legislation provides the authority to seize property that is involved in, or derived from, criminal activity, even if the property owner has not been convicted of a crime.
What is the civil forfeiture procedure in Alberta?
- The civil forfeiture procedure begins when the Government of Alberta files an application in the Court of King’s Bench. The application outlines the alleged connection between the property and criminal activity. For example, the government may seek the forfeiture of vehicles used in a drug trafficking operation.
- Once the application has been filed, a “notice of disposition” is served on anyone who has an interest in the property that is the subject of the application. Notice will usually be served to the owner of the property, but if no owner can be discerned, notice may be posted in the newspaper or community bulletin.
- Once notice has been served, the party with an interest in the property, usually the owner, has 30 days to file a “notice of objection.” If they do not file a notice within the 30-day dispute period, the property will be forfeited without a hearing. Failure to file a notice of objection amounts to an admission of the facts alleged in the notice of disposition. Once a notice of objection has been filed, the government has 45 days to commence legal action or withdraw from the proceedings.
- If the 30-day dispute period has already elapsed, it is possible to argue that the failure to file an objection was an innocent mistake. The claimant must establish that they had a reasonable excuse for failing to file, and that the application was made as soon as reasonably possible after the claimant learned of the forfeiture. In any case, this application must be made within 2 years of the expiry of the dispute period.
- The notice of objection and hearing allows the property owner to dispute the forfeiture by demonstrating that the property in question was not linked to criminal activity, or that they have a legitimate claim on the property.
- The onus is on the government to establish, on a balance of probabilities, that the property is connected to criminal activities. This standard is far lower than the standard for criminal prosecutions, which is proof beyond a reasonable doubt. Whereas proof beyond a reasonable doubt is closer to certainty, proof on a balance of probabilities is best described as “more likely than not.”
- At the conclusion of the hearing, the Court will decide whether the property should be forfeited to the government or returned to the owner. If the court finds in favour of the government, the property may be returned to a party claiming interest, returned to the original victims, or sold. The funds gained from sold property are used to pay out innocent creditors, compensate victims of crime, or fund government programming. If a party with an interest wishes to have the property returned to them, they must prove that they were not involved in the crime, and that they did not know their property was gained from or used in a crime.
Who can I talk to if I have more questions about civil forfeiture?
A lawyer at Pringle Law can help you represent your interests at a civil forfeiture hearing. Contact us for advice.