MORTGAGEBROKER mbabc.ca summer 2015 | 31
civilforfeiture
Criteria for Civil Forfeiture
Many pieces of legislation provide for
forfeiture of property, for example the
Criminal Code, the Controlled Drugs and
Substances Act, and the BC Civil Forfeiture
Act. Each piece of legislation applies in
different situations and has different criteria
which must be satisfied before forfeiture
can occur. We will be looking at forfeiture
under the BC Civil Forfeiture Act (the Act)
but this is not to minimize possibilities of
forfeiture under other legislation. Further,
we will be looking at the Act as it applies
to existing or past MGOs in relation to
mortgages; certainly it applies in many
other circumstances.
What is the rationale underlying civil
forfeiture? e underlying purpose of the Act
is to reduce unlawful activity by taking away
profits of engaging in it and taking away tools
used to engage in it.
What is civil forfeiture and when can it
happen? Forfeiture is when the government
chooses to exercise a right to take away
your property without paying you for it.
Civil forfeiture is when the government's right
comes from civil rather than criminal law.
e Act allows civil forfeiture to happen
if the property is something you own directly
or indirectly because of unlawful activity
(such as real estate paid for with money
generated by an MGO).
e Act allows civil forfeiture to happen
also if the property was obtained legitimately
but you used it for unlawful activity to make
a profit (such as legitimately owned real
estate being used to house an MGO).
If the person had an MGO outside of
B.C. in a jurisdiction where it was not lawful
to have an MGO, the government could
confiscate property purchased in B.C.
with the ill-gotten money.
e trigger for civil forfeiture is the
connection between the property and the
MGO, not whether anyone is charged with or
convicted of an offence. Forfeiture can occur
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