On Monday Bill 11: Civil Forfeiture Amendment Act, 2019 was up for debate at second reading.  This bill amends the Civil Forfeiture Act brought in by the BC Liberals in 2005. It further targets the proceeds of crime by enhancing the civil forfeiture office’s ability to seize property and assets, and the rationale for doing this is so that the criminal assets can be seized before they can be actually liquidated or transferred out of province.

Below I reproduce the text and video of my cautiously supportive comments on this bill. As I point out, it’s ironic that the BC NDP, while in opposition, expressed significant concern regarding the powers granted to the Civil Forfeiture Office under the existing legislation. Yet now, the BC NDP propose a substantive increase these very same powers.

As I was the last speaker on Monday, March 25 before the house rose, my speech will be broken into two parts. I updated this post on April 3 with the remainder of my second reading speech.

Videos of Speech

Text of March 25 Speech

A. Weaver: Thank you, hon. Speaker, and thank you for giving me the opportunity to rise to speak to Bill 11, Civil Forfeiture Amendment Act, 2019.

This bill aims to target the proceeds of crime by enhancing the civil forfeiture office’s ability to seize property and assets, and the rationale, of course, for doing this is so that the criminal assets can be seized before they can be actually liquidated or transferred out of province.

This bill is, I would suggest, somewhat controversial. The idea here is that some of the time taken to actually move forward with other civil forfeiture applications meant that some criminals were able to liquidate their assets or move them out of province before they were targeted.

The bill allows the civil forfeiture office to make preliminary orders to preserve the value of property or proceeds linked to unlawful activity; i.e., it’s intended to freeze accounts from being transferred or sold before a court proceeding starts, to ensure that the source of any claim actually remains in place before court proceedings have concluded.

Second, this bill also shifts the onus to the defendant to prove that an asset is not an instrument or proceed of unlawful activity. Herein lies some of the controversy. For example, vehicles with a hidden compartment, say a drug hatch, or large amounts of cash near a prescribed substance, say opioids, are now considered proof of unlawful activity.

The civil forfeiture office would still have to provide the court with sufficient evidence to link the asset or proceeds to crime. However, the fact that the burden of proof is now moving to the defendant suggests some concerns from my part, as well as other NGOs and third-party organizations — in particular, the B.C. Civil Liberties Association, which we’ll come to shortly.

Third, the bill allows the civil forfeiture office to apply for a court order to compel financial institutions to give limited financial information of a suspect, e.g., a suspect’s bank account number.

The first part of the bill is the most controversial of all of these — the second and third parts to a lesser extent.

My notes have this initially being brought in in 2005. It may have actually received royal assent in 2006. The bill was not actually new. It followed other examples that were built and put in place in places like the United Kingdom, Ireland, Australia. In fact, British Columbia in 2005 was the fifth province, following Ontario, Manitoba, Saskatchewan and Alberta, to bring in a civil forfeiture office.

You know, the idea was a way for the province to combat organized crime, separate from the criminal law, by using civil law processes to go after property or assets that were purchased as a result of unlawful activity. It was a way to increase the province’s jurisdiction into preventing crime. Civil law, crime prevention and public safety all fall within the provincial jurisdiction. Under the Civil Forfeiture Act, cash or property acquired from an unlawful activity was now subject to forfeiture by a civil court order.

Now, here lies the problem. If we go back in time, the B.C. Civil Liberties Association saw the use of the civil forfeiture proceedings as an abusive legislation that circumvented due process. To quote the now Attorney General — he said this back in, I believe, 2011: “It’s very concerning that they would pursue forfeiture in a situation where they were unable to get a criminal conviction.”

He further said: “It means that even if you win your criminal trial now, you are still not out of the woods. To defend yourself on a civil forfeiture application can cost thousands of dollars.” He further said, and I believe these words are very salient: “Civil forfeiture was sold to the public as going after gang members. But we are increasingly seeing it go down a slippery slope where it is being used for everything from speeding offences to situations where people haven’t been convicted of any crime at all.”

Those are the sage words of our now Attorney General back in 2011, when he was representing the B.C. Civil Liberties Association. The key words in that were the following: “Civil forfeiture was sold to the public as going after gang members.” That is precisely the way it is being sold now as well. So let us hope that, indeed, it is used wisely to do just that, rather than becoming a means and ways to generate revenue through somewhat un-tempered application in all sorts of odd conditions.

In 2014, the Globe and Mail published a lengthy report raising questions about the fairness, public interest and transparency of B.C.’s civil forfeiture law. At the time, media reports highlighted problems where innocent people or people with minor criminal activities — speeding offences, for example — got caught up in what appeared to, at times, be an overzealous civil forfeiture office. This is what was being referred to by the B.C.’s Civil Liberties Association.

At this time, the B.C. NDP opposition started to call for a review of the civil forfeiture office. Now, in fact, they have the power do so. But they have chosen not to do so and, instead, brought forward legislation in the absence of such a formal review.

Here are some quotes from former B.C. NDP MLAs while serving in opposition. This is Kathy Corrigan, who’s no longer with us — served until the last election. In 2014, she said the following: “I think the government has to answer some serious questions about….”

She’s still with us, but no longer with us in this chamber here today. This is what she had to say. “I think the government has to answer some serious questions about the scope of the office.” She referred to the office as a “cash cow” and said: “assigning a budget target it must meet creates a real danger that cases that don’t meet a high standard will be accepted.”

In February of 2014, Robin Austin, the former member from Skeena area, said this. “I think what we’re concerned about in some instances where people are not charged and convicted…. We’re concerned there’s not enough transparency and oversight.”

Wally Oppal in 2014 — the province’s former Attorney General — agreed and suggested that a review of the existing 2005-06 civil forfeiture law was warranted. At the time — we’re now in 2014 — both the official opposition as well as Mr. Oppal, the province’s former Attorney General, are agreeing that a review was necessary, as was also articulated by the official opposition critic who suggested that it had been some time since this bill has had some check over from its initial implementation.

In 2016, a B.C. judge ruled that the civil forfeiture office could not seize assets unless they are tied to unlawful activity. Previously, the office had been targeting assets purchased with legitimate income if the suspect had engaged in unlawful activity.

That ruling was pretty important — again, would have suggested that we might have had a reflection upon and a review of what was done prior to introducing this new legislation. This was seen at the time as precedent-setting on what the civil forfeiture office could go after. And as I’ve said, there have been no reviews of if the civil forfeiture office is doing its job and if it’s doing so in a manner consistent with its mandate.

I’m quite surprised, in light of the fact that the present government has done so many reviews. In fact, it seems like every time you open the newspaper, the NDP have issued another two or three reviews of something. Yet here we have a piece of legislation, which has been in place since 2006 — an important piece of legislation — where the NDP, when in opposition, as well as the former Attorney General, called specifically for a review. We’re getting legislation in the absence of said review.

You know, in 2019, we see that new changes are being enhanced in this, but also we’re seeing this legislation being brought in when money laundering is clearly a huge problem in our province. The civil forfeiture office is now actively targeting money-laundering suspects as we speak.

So here are some of the problems with the civil forfeiture legislation as it stands. It incentivizes oddities: 50 percent to 60 percent of the proceeds of the civil forfeiture office go towards the funding of the office. This creates an incentive. The more successful the civil forfeiture office is, the more money they get and the more money they have to spend on their operations and the more people they hire and the bigger bonuses they can get. The question I have there is: are there targets that the office should be meeting? Or what determines whether a case is brought forward or not?

Of the $87 million that’s been recovered since 2006, less than $2 million has actually been given to victims of crime, while $37½ million has gone to crime prevention initiatives — whatever they might be. The rest has gone to legal counsel and office operations.

The NDP, for many, many years, called the civil forfeiture office a cash cow, so I’m wondering how they’re viewing this differently now. Hopefully, during committee stage, we’ll get some insight into that. We’d like to look at changing the incentive structure in the future or at least doing a review to make sure that the incentive structure isn’t creating a situation of unfairness, of incentivizing the application of civil forfeiture to cases that may be not so clear-cut.

A second problem is there appears to be very little oversight in the civil forfeiture office. The checks and balances simply are not clear. It’s not clear that the civil forfeiture office is actually deterring crime. We’ve not taken the time to see if the office is meeting its goals or deterring illegal acts and compensating victims accordingly.

This is precisely why we would have expected government to initiate a review, to actually determine whether the civil forfeiture office is actually doing what it’s supposed to do — meeting targets it’s supposed to meet — and by what metrics is it being judged. We don’t have the benefit of that. We have legislation before us — somewhat controversial legislation — taking the civil forfeiture to a whole new level.

The Globe and Mail has recently raised the issue of civil forfeiture and innocent people being targeted by the offices across Canada and here in B.C. Here’s a couple of examples.

Example one: in 2012, a 74-year-old woman named Ellen New had the charges against her staid. The charge was for possession of cocaine for the purpose of trafficking, but her home was ordered forfeited in 2013. Think about that. In 2012, her charges were staid, but her home was ordered forfeited in 2013. There’s a problem with the application there.

The second example was in 2007. Police showed up at David Lloydsmith’s house. They entered without a warrant, found a couple of pot plants, and despite no charges being laid, the civil forfeiture office sued to seize his home in 2011 — four years after the initial RCMP raid. In 2015, eight years after the initial raid, the B.C. Supreme Court ruled that his rights were violated. Again, I can only imagine the undue hardship that poor Mr. Lloydsmith faced over years of uncertainty as the civil forfeiture office went after his home.

In example three, we have, in 2015…. Mumtaz Ladha sued the provincial civil forfeiture office and the RCMP for pushing a false narrative and relentlessly trying to take her home. In this case, the police allegedly ignored witness testimony problems and pushed a false narrative of Ms. Ladha being linked to human trafficking. The CFO — that’s the civil forfeiture office — then tried to take her multi-million-dollar home. The RCMP had since issued an apology, and the claim has been settled.

These examples are important because they demonstrate about the potential problematic nature of the application of the Civil Forfeiture Act. Many of these examples are but needles in a haystack.

The minister has said that some of these problems can be attributed to growing pains and that it’s important that civil forfeiture is used in the spirit it was intended, which is organized crime and gang crime. Again, I come right back to what I outlined early on in this brief speech. According to, in 2011, the now Attorney General, “civil forfeiture was sold to the public as going after gang members, but we increasingly see it go down a slippery slope where it’s being used for everything from speeding offences to situations where people haven’t been convicted of any crime.” I fear that perhaps, while the intentions may be good, we have no control, and there’s no oversight provided us here as to how we might see this forward.

I do note the time, and I move adjournment of the debate and reserve my right to continue the debate at the next sitting of the House that this debate occurs.

A. Weaver moved adjournment of debate.

Motion approved.

Text of Remainder of Speech on April 3

A. Weaver: I rise to take my place and continue my second reading speech on Bill 11, Civil Forfeiture Amendment Act.

When I left off last week, I’d just completed articulating three specific examples wherein the application of civil forfeiture in the province of British Columbia had led to some issues that require some critical oversight as to how civil forfeiture operates. The first example I raised — just to bring some continuity to the speech — was with respect to a 74-year-old, Ellen New, who had the charges against her stayed. Those were charges for possession of cocaine for the purpose of trafficking. But nevertheless, her home was ordered forfeited in 2013.

Another example of inadvertent consequences with respect to the application of civil forfeiture in British Columbia was the example of David Lloydsmith’s house. There, police showed up at his house and entered without a warrant. They found a couple of pot plants, and despite no charges being laid, the civil forfeiture office sued to seize his home in 2011, four years after the initial RCMP raid. In 2015, eight years after the initial raid, the B.C. Supreme Court ruled that the rights of Mr. Lloydsmith were, in fact, violated.

The third example I outlined was in the case of Mumtaz Ladha, who sued the provincial civil forfeiture office and the RCMP for pushing a false narrative and relentlessly trying to take her home. In this case, the police allegedly ignored the witness testimony problems and pushed a false narrative of Ms. Ladha being linked to human trafficking in British Columbia, so the civil forfeiture office then tried to take her multi-million-dollar home. The RCMP issued an apology, and the claim has been settled.

The reason why I outlined these three examples is to provide a cautionary tale as to the application of civil forfeiture in British Columbia. As it stands today, we have some of the strongest laws in the country, and before us, Bill 11 purports to bring forward even stronger laws. While much of this bill is not controversial, certainly aspects of it are, with respect to putting the onus of proof onto the defendant as well as some of the timeliness issues with respect to how fast civil forfeiture can move.

The examples were deeply problematic, because they showed that the scope of the civil forfeiture office is sometimes overreaching in its powers. We don’t know for sure, but I suspect that there are other examples than what we’re hearing about. It may be a needle in a haystack.

The minister has said that some of these problems can be attributed to growing pains and that it’s important that the civil forfeiture office is used in the spirit it was intended, which is organized crime and gang crime. You’ll get no argument from us here that it is important to ensure that civil forfeiture is used for the purposes that it was introduced for, in particular for organized crime and gang crime.

However, this bill does not seem to do anything to ensure that civil forfeiture is used for organized and gang crimes specifically and not applied in broader cases. In that case, I raise again the issue of the B.C. Civil Liberties Association, and the Canadian Constitution Foundation as well. They raised some concerns, I would suggest valid concerns, and the Attorney General, obviously, has spent some time working in the former organization and would recognize that he, too, raised similar concerns when he was there.

I bring these forward not in speaking in opposition against the bill but purely as a cautionary note. We already know we have one of the most aggressive forms of civil forfeiture in the country, and we’re proposing to make it stronger, with increasing powers. We also…. Again, I put that in the context of British Columbia. It has an outrageous money laundering problem, and frankly, we have not yet got to the bottom of it. So I bring these concerns, and I raise them mainly as a cautionary note.

The B.C. Green caucus is supportive of the province taking measures to go after those responsible for money laundering and organized crime. But we need, at the same time, to ensure that innocent British Columbians are not also targeted. We’d recommend that the Auditor General review how the office is operating and if it is achieving its objectives, particularly in light of these increased powers.

I articulated in the previous speech last week a number of calls for review by members in government caucus, as well as external agencies, as to how civil forfeiture is operating, and I would hope we’d have an ongoing assessment as to the effectiveness of that office, not with any punitive goal in mind but more to ensure that it’s targeting that which should be targeted, which is organized crime and gang activities.

As I’ve said, we have a couple of concerns in the bill. We look forward to hearing government’s explanations. The most notable will be section 14, where the burden of proof changes. In section 14, if a suspect has an after-market compartment in their vehicle, for example, certain equipment or cash over $10,000, this is now considered to be proof of being an instrument or a proceed of illegal activity.

Heaven forbid that you be a type of person who likes to buy things in cash, and there frankly are people who do that — people from my father’s, my mother’s, my in-law’s generation, where cash is king. The notion of paying with cash is king. It would not be uncommon with some people who hold that belief to actually pay for things in cash, and having $10,000 is not all that much these days, in cash. Certainly, in many cases, it would not be indicative of it being proof that a crime has been committed and this is an instrument of crime. So we express some caution there.

While I personally have never carried around $10,000, I do know people who have carried around $10,000, specifically to pay for cars, where they paid cash for cars, and the car was over $10,000. You might have ask the question: “Why are you paying cash?” That’s a legitimate question to ask, but it does happen, and certainly it was not money that comes from the proceeds of crime.

Not only does the burden of proof change…. In what was already a regime that simply needed the balance of probability, it also means that the defendant might have to implicate themselves to produce evidence to counter the evidence of the civil forfeiture office. For example, an after-market compartment in a vehicle — that’s like a hidden compartment in a vehicle — might have nothing to do with trafficking drugs. You might have bought a car from somebody who had the compartment. You may not be aware of it. You probably are, but you may not. You may just ignore it — whatever.

But the reality is that can now be considered as proof of illicit activities, and it’s not clear that, in fact, the burden should have to go onto the owner of the vehicle to prove that the existence of that after-market compartment is proof of illicit activity.

Maybe, for example, there’s somebody who lives in their car. We know this is more and more common. We have students living in their cars. We have senior citizens living in their cars. Maybe, in their cars, they might want to have a space where they protect their valuables, a locked or secret compartment where they put their credit cards, their birth certificate, their driver’s licence, maybe some other valuable goods, some jewelry.

That might be out of necessity. That’s certainly not evidence that the car or anything in the car has been acquired as an instrument or proceed of illegal activity. So I would suggest that we must be cautious in putting the onus of proof on the individual as opposed to the actual accuser. It’s potentially problematic. We look forward…. I’m sure members opposite will also be exploring this further at committee stage. I would suggest that that is probably the most controversial aspect of this bill.

Of course, there’s also the regulation-making authority. Quite a number of items in this bill…. As is common in all bills that government brings forward, a lot of what will be done is left up to regulation. One, for example, is the ability to prescribe what would be considered a piece of equipment relating to trafficking. What does that mean? Who’s going to make the determination? Cabinet, based on advice, I suppose. I would have thought that we would have thought this through a little more before bringing it to the floor. Nevertheless, this bill, we believe, is something that is worthy of support, and we look forward to exploring this at committee stage.

To summarize my remarks on this…. Clearly, as you will know from question period, we have been raising this issue. We are profoundly troubled about what’s been going on and the issue of money laundering. We are now labelled a nation of money laundering by U.S. officials. This is not a terribly flattering label to be given. Our caucus is profoundly troubled by this, so we are supportive of the inclusion and addition of more tools to prosecute criminals in British Columbia. We hope that this bill is used accordingly.

While no one should benefit from the proceeds of crime, it’s also important that we are vigilant in protecting the rights of Canadians and the freedoms of Canadians as well. In particular, we must be very wary of the potential abuse of power that this legislation instills upon the civil forfeiture office. You know, they’ve sought to obtain property from innocent British Columbians in the past. We need to ensure that this does not happen moving forward and that British Columbians are protected in the case that inappropriate civil forfeiture attempts are moved forward.

Our caucus has heard from civil rights organizations. We’ve heard from constituents about the concerns with regard to the issues that are raised here in the legislation. The government, when they were in official opposition, also had similar and strong concerns about the civil forfeiture office. Ironically, one might say, we’re moving to increase its powers.

With that said, though, I suspect that the government — now moved from a position of opposition to a position of government — opened the books on the money laundering and realized just how serious this issue is. From the answers we’ve been getting from the Attorney General over the last couple of weeks, we are convinced that he’s taking this issue very seriously. We’re convinced that he finds this to be a very troubling issue and that he’s hoping to ensure that more and more tools are brought forward to allow his office and the province of British Columbia to get to the bottom of what’s been going on in money laundering.

It is inappropriate. It is not right. It is something that British Columbians do not support — people using the proceeds of crime to build monster homes, leave that money there and have there be no accountability. So we recognize that, in fact, this bill does potentially give police and others more power to actually go after those who’ve committed criminal activities.

We’ve also heard, as I mentioned, from others about this legislation. We’ve recognized that there is some concern. But we are supportive. We’re going to look forward to exploring this in committee phase, and I look forward to the questions and continued debate from members opposite. We believe that, right as it stands, there is reasonable justification for the changes being made, but we hope to canvass this further at committee stage. I look forward to listening to the further speeches at second reading.