‘They just take it’: BC’s administrative forfeiture system ripe for abuse, say critics

Critics believe seizures should only come through criminal convictions, not based on suspicion

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Police in BC have the authority to take away your personal belongings if they think they are stolen or the proceeds of crime — and if those belongings are worth less than $75,000 they don’t even need to provide it.

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The law, called administrative forfeiture, allows police to confiscate personal belongings valued under $75,000 — most often cash, cars and phones — without charging anyone with a crime. If a forfeiture is not disputed within 60 days, confiscated belongings automatically become the property of the government. Unlike civil forfeitures, which are decided by the courts, administrative forfeitures only end up before a judge in the rare cases when a seizure is disputed.

Introduced in 2011 as an amendment to the civil forfeiture law, administrative forfeiture, as the law is called, was intended to make it cheaper for authorities to confiscate “low-value property and small amounts of cash,” according to a news release at the time.

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In the decade that followed, police use of administrative forfeiture has more than doubled, to the point where it now makes up over 85 per cent of all forfeiture cases in BC, according to data provided by the Ministry of Public Safety. That works out to 550 features a year, on average, some for as little as a few hundred dollars or a 20-year-old car.

Critics of the law call it predatory and say it is ripe for abuse, leads to lazy policing and even contributes to the loss of law enforcement skills.

“The path that you’re on seems like an extreme version of the chickenshit club,” Jason Sharman, author of The Money Laundry and a professor of politics at Oxford University who was an expert witness at the Cullen Commission, said of the growth in administrative forfeiture in BC “Not even taking the easiest cases, just taking cases that generate a civil case.”

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Jason Sharman, a professor of politics at Oxford University who studies money laundering and forfeiture laws and was an expert witness at the Cullen Commission.
Jason Sharman, a professor of politics at Oxford University who studies money laundering and forfeiture laws and was an expert witness at the Cullen Commission. Photo by Jason Sharman /jpg

The chickenshit club is a reference to prosecutors too scared of failure and too daunted by legal impediments to do their jobs.

Sharman said it appeared police were getting out of the habit of collecting evidence and risked losing those skills. Instead of working cases “they’re just taking small amounts of money,” he said.

“It really seems a failure of leadership of law enforcement and probably at a political level,” Sharman said. “Your job is not going after a ’97 Toyota Camry,” he said of law enforcement, “it’s going after the biggest crooks.”

The ease of administrative forfeiture dissuades police from pursuing criminal cases, where the burden of proof is much higher, say lawyers.

Forfeiture cases only need to be proved on a balance of probabilities rather than beyond a reasonable doubt, meaning the Civil Forfeiture Office just needs to show it’s more likely than not that a crime was committed.

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“Until there’s a dispute and it goes to court, there is no burden of proof,” said Scott Wright, a principal with Pender Litigation, a Vancouver law firm. “They take something — without any proof whatsoever, they just take it.”

Tumbler Ridge RCMP claimed the lowest cash-value forfeiture in the province, according to records. In 2020, they seized $306.40 and a cellphone. It was the only administrative forfeiture the detachment ever made.

The relatively low value of administrative forfeiture claims mean challenging them to get possessions back usually doesn’t make economic sense, say lawyers familiar with the law. That’s reflected in the figures, which shows that eight per cent of administrative forfeiture cases from 2011-2021 were disputed.

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“The sheer math of it makes it untenable,” Wright said, noting the cost of a full trial could easily reach $50,000 and litigants still might not get their possessions back.

Joel Whysall, of Mickelson and Whysall Law, believes the Forfeiture Office and police use this knowledge to their advantage. “The cost of litigation is a weapon for them,” he said. “They know they’re going to be successful.”

Phil Tawtel, executive director of BC’s Civil Forfeiture Office, said he hears the argument about the cost of civil litigation a lot but argued that the cost of filing a dispute is “relatively cheap.”

“All you have to do is swear the document and submit it to the office to dispute” a forfeiture, he said.

“The interest holder is, of course, welcome to provide any information at that time for the director to consider discontinuing, and there are cases where we’ve done that,” he said, something Postmedia confirmed in legal filings.

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Forfeitures bring in $11 million a year, on average, all of which goes directly into government coffers. The Forfeiture Office said in a statement that it does not track how much money comes from administrative versus civil forfeiture, an indication that the monetary value of administrative forfeiture may be low, especially when compared to the multimillion-dollar homes often targeted in civil forfeitures overseen by the courts.

Wright called administrative forfeiture “a revenue stream” for the government, compared to the “significant expense” of prosecuting criminal cases — another way authorities are given an incentive to forfeiture over criminal prosecution.

For Tawtel, the revenue is literally half the point. Fifty per cent of premium funds are used to pay for programs combating crime, gangs and domestic violence. The other fifty per cent goes toward paying the costs of the Forfeiture Office itself, which is self-funding.

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Tawtel said administrative forfeiture costs his office between $200-500 each to file, a tenth of the costs previously associated with making a civil forfeiture claim.

“There was less money for grants,” he said of the costs his office incurred before the law came into effect, “which is very much one of the key principles of the office — we want to be able to fund crime prevention projects.”

Police departments can — and do — apply for grants from the Forfeiture Office, which effectively provides them with additional revenue. As much as $1.5 million a year also goes to police departments to pay for training, equipment and staff, further encouraging police to pursue forfeiture at the expense of criminal cases, critics say.

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Most Postmedia experts interviewed cast doubt on the effectiveness of the administrative forfeiture law in combating crime and several suggested that it should be done away.

“Clearly this is doing the easy stuff,” Sharman said. “It’s probably not going to have a lot of benefit to society.”

“On a policy level, if it’s less than $10,000, why are we even interested in it?” asked Whysall.

Bibhas Vaze, a BC lawyer with extensive experience working forfeiture cases, said that the financial incentives and lack of oversight leave the administrative forfeiture law ripe for abuse, something well-documented in the United States even before BC passed the law a decade ago.

Administrative forfeiture was “brought in to deal with the cost side while at the same time maintaining the safeguards of judicial case forfeiture,” said Tawtel. “We’re not tying up the courts, and there’s more money for grants.”

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Whysall questioned the need for administrative forfeiture at all, noting that mechanisms already exist in the Criminal Code and the Controlled Drugs and Substances Act that allow authorities to claim property as the proceeds of crime. He said getting rid of administrative forfeiture “would force the civil forfeiture office to always have judicial oversight,” something that only happens now if someone files a dispute.

“What does it serve,” he asked of the law, “but efficiency and under-serving the poor?”

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Read Part 1: Can’t justify a criminal charge? Take their stuff, instead. Society’s poor and addicted hardest hit by BC forfeiture laws
Read Part 3 on Monday:
How police can profit from what they seize

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