Property, Civil Forfeiture and the Charter

This paper seeks to address the issue of how evidence obtained in violation of a Charter-protected right is to be dealt with in civil forfeiture proceedings. In arriving at the answer, the governing jurisprudence in this area of the law will be canvased to provide a contextual background that informs the parameters of this discussion. However, it will ultimately become clear by the end of this paper that evidence obtained in violation of a Charter-protected right should be dealt with by way of section 24(2) of the Constitution Act, 1982, and the use of a modified Grant test. Civil forfeiture is the process by which the state commences legal action to obtain property that was seized as an instrument or proceed of unlawful activity. Although property can be forfeited through a number of different mechanisms, the scope of this paper is limited to forfeiture proceedings commenced by way of civil action under provincial legislation with a focus on British Columbia. The case law presented in this paper will focus primarily on appellate court decisions from across the country due to the scarce attention this area of the law has received. These cases will highlight the endeavours of litigants who sought to undermine civil forfeiture proceedings through the use of common law principles and the Charter. Finally, commentary will be provided on the direction future research in this area of the law should take.