Environment and wildlife new areas for B.C. civil forfeitures

Three years ago, the provincial government quietly began using the controversial practice of civil forfeiture in select cases concerning natural resources.

Since 2012, referrals by the Ministry of Environment have resulted in asset seizures in three cases worth $70,000, ministry spokesperson David Karn told the Straight. He added that a number of additional files are under review at the Ministry of Justice’s Civil Forfeiture Office (CFO).

The issue was brought to the Straight’s attention via a June 2013 policy memo recently posted online in response to a freedom-of-information request. The document presents a review of the Environment Ministry’s Conservation Officer Service (COS), which is tasked with enforcing resource and wildlife laws.

“The COS is also exploring the use of civil forfeiture for assets and property used in the commission of environmental and forest crimes through the Civil Forfeiture Office of the Ministry of Justice and Attorney General,” the document reads.

No one the Straight contacted at West Coast Environmental Law, EcoJustice, the David Suzuki Foundation, or the University of Victoria’s Environmental Law Centre was aware the government is using civil forfeiture in cases concerning natural resources.

The Ministry of Environment referred further questions to the Ministry of Justice, which did not make a representative available for an interview.

A government website describes civil forfeiture as a process whereby the Ministry of Justice seizes property and assets “believed to be the instruments or proceeds of unlawful activity”. Forfeiture does not require that a person be convicted of—or even charged with—a crime.

The $70,000 in assets forfeited for environmental reasons is a small part of the total for that three-year period. According to the Ministry of Justice, the value of all property seized since 2012 stands at $40.6 million. Still, Vancouver environmental lawyers responded with cautious optimism to news that civil forfeiture is being used to protect natural resources.

Andrew Gage, a staff lawyer with West Coast Environmental Law, said he’s in favour of having forfeiture available as an option. But he added he worries that the lower bar set for forfeiture could mean investigators are tempted to forgo tougher convictions that carry more severe punishments.

“I think that civil forfeiture is a useful tool and one that could be used very effectively to create a deterrent and stop reoffence,” he said in a telephone interview. “But to replace criminal prosecutions or administrative penalties, that is probably the wrong way to use it.”

For 35 years, John Cliffe worked for the federal Crown prosecutors’ office, acting on cases referred by Environment Canada and the Department of Fisheries and Oceans (now Fisheries and Oceans Canada). On the phone from his private practice in Vancouver, Cliffe told the Straight that investigators already operate with a high degree of discretion, which means there should be assurances civil forfeiture is only recommended in cases where it’s warranted.

“A lawful seizure and a lawful forfeiture action, if principled, would add to the quiver of enforcement options that a designated environmental investigator can use to protect the environment,” he said. “It would be an added tool that would allow them to more effectively do their work.”

Civil forfeiture has attracted criticisms across Canada for inflicting a legal punishment against individuals who may not be guilty of a crime.

Joshua Krane provided legal counsel to the Canadian Civil Liberties Association in the most recent forfeiture case heard by the Supreme Court of Canada. On the phone from Toronto, he told the Straight that provincial governments are increasingly expanding the scope of legal areas to which forfeiture penalties are applied.

“These laws were initially enacted to combat organized crime and weren’t really intended to deal with regulatory matters,” Krane said. “It’s hard to know how these should apply. Is the province going to assume environmental liabilities with the assets that it confiscates? Who is going to be responsible for that?”

Krane noted that of the seven provinces with forfeiture laws on the books, the government of B.C. has proven itself noticeably aggressive.

“B.C. has a particularly high settlement rate,” he explained. “The law is being applied in a way that leaves very little opportunity for property owners to defend themselves.”