'The bad thing is staring us in the face': Data on controversial forfeiture program alarms critics

Part Two of a two-part series on administrative civil forfeiture. Read Part One here.

She doesn't have a criminal record, but police say that two years ago, her boyfriend was caught driving her car with close to 50 grams of methamphetamine packed for sale on the street.

And so the province went after the Vancouver woman's 2009 Toyota Venza, alleging she was just the "owner of convenience" and confiscating the vehicle through administrative civil forfeiture, court documents show.

She has not been charged with anything in connection to her boyfriend's arrest, and CBC has chosen not to name her.

Her car was one of 913 administrative civil forfeiture files opened in B.C. last year, according to data obtained by CBC through a Freedom of Information Request. The numbers reveal that in the vast majority of cases, no evidence of crime is ever presented to a judge.

For the B.C. Civil Liberties Association, the data suggest the civil forfeiture program has drifted far beyond its initial billing as a way to cut the profits from organized crime.

"None of the information that we're receiving about what's actually happening on the ground with these programs gives us any comfort whatsoever," BCCLA police director Micheal Vonn told CBC.

"Every government thinks that they would never do the bad thing. The bad thing is staring us in the face, so now is the time to grapple with it."

Civil forfeiture has existed in B.C. since 2006, allowing the province to confiscate people's property without any criminal charges attached.

Advocates like Vonn have been troubled by the program from the very beginning, arguing it gives the government too much power to seize private property without the due process protections of the criminal justice system.

But the head of the B.C. Civil Forfeiture Office defends the practice, arguing that his office needs to have strong evidence of a connection to illegal activity. The CFO's executive director, Phil Tawtel, pointed out that the courts have upheld the legality of the program time and again.

"It's been challenged at the Court of Appeal level, it's been challenged at the B.C. Supreme Court level. Time and time again, the courts have said that there is a proper place for civil forfeiture," Tawtel said.

Just 1/6 of claims are disputed

The same year civil forfeiture was introduced in B.C., then-solicitor general John Les defended the new system in a letter to the editor of the Victoria Times Colonist.

He wrote that "government must prove that the property was used in an unlawful activity, and that its use caused or could cause serious harm to a person. The act does not apply to legally acquired property or innocent property owners."

But the program has evolved significantly in the years since then.

In the early days of civil forfeiture, the government needed to prove every case in court. Administrative forfeiture took things a step further, removing the judicial system from the equation in most cases.

The administrative system accounts for a massive 80 per cent of all civil forfeiture cases in B.C.

Introduced in 2011, administrative forfeiture applies to property valued at under $75,000 that the government alleges is connected to illegal activities.

The Civil Forfeiture Office (CFO) simply needs to mail a notice to the owner, and if it isn't challenged within 60 days, the items are automatically forfeited.

Just one-sixth of the administrative claims filed last year were disputed, an analysis of the 2018 data shows.

That means that the province took in $2.54 million in Canadian and U.S. cash, 221 vehicles and 438 cellphones without having to show its evidence of a connection to crime.

Disputes were only filed against claims for $820,000 in cash, 67 vehicles and 63 cellphones. Not all of those ended up in court — in some cases, the CFO dropped the claim instead.

The province did not provide information on how many disputes were ultimately successful.

Some of the claims that went undisputed last year were for cash in amounts as small as $140.

According to Phil Tawtel, the CFO's executive director, claims that might seem relatively tiny are often related to investigations involving violence, guns, dangerous drugs like fentanyl, or people who have ongoing problems in their communities.

"In cases where an interest holder feels that it's unjust … that person can bring forward information, in addition to the dispute, to provide the director with information as to why the money is legitimate," he said.

'Everyone settles'

But Vonn argues these low-stakes files are a perfect illustration of the problem with administrative forfeiture.

"Even if you have a claim, it is almost impossible to justify it in terms of the cost of doing so," she said.

"Everybody settles, practically, because the difficulty in defending yourself is so formidable."

The Vancouver woman whose car was confiscated by police because of the alleged actions of her boyfriend disputed the claim, but ended up settling with the government, agreeing to accept 30 per cent of the proceeds when the CFO sold the vehicle.

The woman did not respond to requests for comment made through her lawyer.

Tawtel said it's not unusual for drug dealers to use vehicles registered in the names of their acquaintances to avoid the possibility of forfeiture.

"This technique has been employed for decades," he said.

Last year's files were overwhelmingly linked to the drug trade.

More than two-thirds of the cases opened in 2018 were connected, at least in part, to drug possession for the purpose of trafficking. It was cited in four times as many files as the second most commonly indicated illegal activity, possession of the proceeds of crime.

Charges not necessary

The CFO doesn't track the number of its files that have charges or convictions attached, but CBC analyzed a random selection of 50 administrative files opened last year to look for patterns.

Of those 50 files, 23 were associated with criminal charges available in B.C.'s online court registry, and that includes some police files that appear to be truly alarming.

One small seizure of $1,200 cash in Fort St. James is connected to a lost list of criminal charges against one man that included assault, uttering threats, possessing a prohibited firearm and illegally firing it, according to online court records.

Taken together, however, Vonn says the files suggest civil forfeiture is no longer about cutting into the profit margins of organized crime. Instead, its mandate seems to have shifted to lower-level illegal activities like drug dealing, often ensnaring people who are only incidental to a crime.

"We're not seeing the criminal courts used appropriately," she said. "We have an alternative method that doesn't involve the same legal protections for citizens — and that proved to be wildly lucrative for the government."

Tawtel estimates that $91 million worth of property has been forfeited since civil forfeiture began in 2006. The office is entirely self-funded, and about $42 million of the proceeds has gone to community grants focused on issues like domestic violence, sexual assault, human trafficking and restorative justice.

He strongly objects to the suggestion that civil forfeiture is a way to avoid the protections the criminal justice system provides to accused people.

"The courts expect that we will bring the evidence [of illegal activity] ... and the evidence has to be the best it can be," Tawtel said.