As P.E.I. ponders new seizure powers for police, here are 2 views

With Charlottetown and Summerside asking the province to give police new power to seize property, Island Morning asked two experts for their opinions on how that might work.

It's known as civil forfeiture, and it allows property believed to be used for or gained through criminal activity to be seized, even in the absence of a criminal conviction or charge.

P.E.I. and Newfoundland and Labrador are the only two provinces that do not have civil forfeiture legislation.

The civil route for seizing property has been an option in British Columbia for 14 years. Phil Tawtel, executive director of B.C.'s Civil Forfeiture Office, said use of civil forfeiture has been growing steadily.

"The majority of the files that we see that are referred from police departments relate to drug trafficking and organized crime," said Tawtel.

"These files, some of them will find their way into criminal forfeiture stream and some of them will find their way into the civil forfeiture stream."

'No fast track'

Civil forfeiture works on a different standard of proof from criminal forfeiture. Rather than having to prove a case beyond a reasonable doubt, a case need only be proven on a balance of probabilities.

Tawtel said that does not mean police do not have to be as thorough.

"There is no fast track and no shortcut," he said.

"The investigation they would normally do, or their own criminal investigation, is the same investigation."

Bibhas Vaze, a B.C. lawyer who has defended people in civil forfeiture cases, said while in many instances police will follow criminal investigation practices, the problem with the law in B.C. is they don't have to.

"In Charlottetown there's this concern over drug houses. So normally what would happen is if you want to investigate what you think is a drug house you've got to go before a judge or JP, get a warrant," said Vaze.

"You have to have some basis to get that warrant and then you can enter the house. Now that's not to say that they don't do that sometimes in civil forfeiture proceedings, but the problem is that they're not required to do that."

Casting a wide net

This can be a particular issue for landlords as well, Vaze said.

If someone renting from you is running a drug house, a civil forfeiture office does not have to prove beyond a reasonable doubt that you didn't know, only that you probably did.

Tawtel said his office will look closely at the evidence and will only involve a landlord if it is clear they were involved or wilfully turned a blind eye.

He said his office follows a careful process before proceeding with a forfeiture.

"We look at the public interest and whether there's a high public interest associated with the unlawful activity and the assets being referred. We look at the interests of justice: does the consideration of forfeiture, in terms of its fairness and proportionality, is it something that makes sense to pursue," said Tawtel.

"Finally we look at the cost and the benefit, since we're a self-funding program and we cover all of our own costs. We certainly look at the value of the file to see whether it makes sense to pursue with all the factors considered."

In addition to funding itself, Tawtel said his office has provided $45 million to crime prevention projects in the last 14 years.

Costly process

In addition to a different burden of proof, Vaze said there is another problem for people defending themselves from civil forfeiture. It's expensive.

Legal aid is not typically provided for civil cases, only for criminal ones. That means people are on the hook for their own lawyer's fees as they try to hold on to their house or car.

For Vaze, one key question is whether civil forfeiture is even necessary, because it is already possible through the Criminal Code or the Controlled Drugs and Substances Act to seize property.

"We have criminal laws to address that," said Vaze.

"I don't see any evidence that as civil forfeiture has gone along and barreled along that that there's been a decrease in actual drug crimes."

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