TD Bank Canada Trust.indd 1 14-10-14 3:16 PM
MORTGAGEBROKER mbabc.ca summer 2015 | 33
civilforfeiture
without charges ever being laid and even if the
person has been acquitted. at said, a charge
or a conviction makes the case for forfeiture
that much stronger.
Forfeiture can be triggered not only if you
were a significant participant in the offence but
if you were simply a participant in the offence.
Once the Court finds on a balance of
probabilities that the property or interest in
the property is a proceed of unlawful activity
or an instrument of unlawful activity, it must
order that the property is forfeited to the
government. e exception is relief from
forfeiture, as discussed below.
e government has 10 years from the
date on which the unlawful activity occurred
to commence legal proceedings for forfeiture;
presumably this would be 10 years from the
day the MGO is dismantled.
Relief from Forfeiture
What does a person have to show to be
relieved from forfeiture? To be relieved from
their property being forfeited, the person must
show it is clearly not in the interest of justice
for the property to be forfeited.
e Court may refuse to issue a forfeiture
order, limit the forfeiture order, or impose
conditions on the forfeiture order. For
example, in 2014 the BC Supreme Court was
faced with a situation where a 77 year old
person had owned the property for 26 years.
ere was no evidence of unlawful activity
for most of those years. Although the property
was clearly used for the unlawful activity
of trafficking a controlled substance, it was
clearly not in the interests of justice to require
forfeiture of all of the person's interest in the
property. e Court ordered 50 per cent
of the interest forfeited.
If the forfeiture is based on the person
using legitimately owned property for
unlawful activity, the person must show they
did not acquire the property as a result of
unlawful activity they committed and one
of the following:
• He or she rightfully owned the property
before the unlawful activity occurred
and was deprived of possession or control
of the property by means of the unlawful
activity;
• ey acquired the property for fair value
aer the unlawful activity occurred and could
not reasonably have known when the property
was acquired that the property was a
proceed of unlawful activity; or
• ey acquired the property from a person
who was in either of the two positions
described above.
If the person has an interest in the
property but did not engage in the unlawful
activity, including not having knowledge of
the unlawful activity or receiving a benefit
from it, then the person is an uninvolved
interest holder. e Court is required to
protect the interests of an uninvolved interest
holder unless it would clearly not be in
the interests of justice to do so. is could
perhaps include a lender.
