Non-Conviction Based Forfeiture in Canada: The Example of Three Outlaw Motorcycle Gang Clubhouses

• Date: 25 May 2023
• Year: 2023
• Author: Jeffrey Simser
• Pages: 108
• DOI: https://doi.org/10.30709/eucrim-2023-009

I How Does Non-Conviction Based Forfeiture Work in Canada?

Non-conviction based (NCB) forfeiture, called civil forfeiture in Canada, is a remedial statutory device designed to recover the proceeds and instruments (property used to facilitate crime) of unlawful activity. Canada first adopted NCB forfeiture in 2001, and there are now nine jurisdictions in Canada that have such laws: the constitutional division of powers assigns civil law authority to subnational jurisdictions. Canada adopted the American in rem approach, meaning that proceedings are brought before civil court against the object of forfeiture, not against the person associated with the property. As a result, Canadian court cases may have unusual names like Ontario (Attorney General) v. $232,405 in Canadian Currency.¹ NCB cases operate independently of criminal law cases, which are brought against individuals; the criminal law matches a prohibition with an appropriate penalty to enable a criminal charge to be brought against an individual. Canada has conviction-based forfeiture provisions in its criminal law.

In 2009, Canada’s highest court ruled that the Canadian NCB laws were constitutional, finding their dominant purpose a civil one: making crime unprofitable by capturing the fruits of crime and making resources unavailable to fund future crime.² This ruling addressed a proceeds case. In an NCB case, property with an unlawful provenance is a proceed. Illicit narcotics are exchanged for cash on the street, and that cash is a proceed. NCB cases are brought before a civil court, where the judge is asked to inquire into the title. If the title was generated through crime, the court is empowered by statute to extinguish that title. In the common law world, property law despises a void. NCB law prevents a void by allowing the court to forfeit the property to the state, where it can be made available for, amongst other things, victim compensation. Instruments can also be forfeited, although the court has a slightly different ground for their forfeiture. An instrument is a piece of property that makes the labour of crime possible. The court must examine the use of the property: if this property is not forfeited, will it be used again? As a safeguard, NCB statutes confer on the court a jurisdiction to refuse to issue an order that would clearly not be in the interest of justice. If the state makes out all technical elements required for a case, the court can still refuse or limit forfeiture if the outcome would be manifestly harsh or inequitable. For example, a very valuable property could be implicated in a minor crime and the court could refuse to issue an NCB forfeiture order.³ In a recent outlaw motorcycle gang case, the appellate court in British Columbia examined the constitutionality of Canada’s NCB instrument provisions.⁴

II. Outlaw Motorcycle Gangs and Organized Crime

In 2007, a case was brought against a clubhouse in Nanaimo, British Columbia, which belonged to the Hells Angels’ Motorcycle Club (HAMC), a notorious outlaw motorcycle gang. Two other HAMC clubhouses, in Vancouver and Kelowna, were later added to the proceedings. In British Columbia, NCB cases are initiated by the director of civil forfeiture (hereinafter: “the Director”). At trial in the above-mentioned case, the director adduced evidence about the HAMC. At the time of trial, there were 463 HAMC chapters with roughly 6000 members in 56 countries. Canada has 34 active chapters. HAMC chapters must comply with international membership rules (as well as Canadian and local rules), pay dues, participate in “motorcycle runs,” and organize shifts to ensure that the clubhouse buildings are always occupied. Chapters have weekly member-only meetings and have relative independence within the broader HAMC world. Promotion to “full member” must be approved by all members of the chapter. Undesirables, including “snitches, junkies, cops or ex-cops” are prohibited. Anyone who has joined or chosen to work with any law enforcement agency is ineligible for membership. At regional, national, and international meetings, members discuss organized crime proceedings and the activities of rival outlaw motorcycle gang clubs. Members also exchange information about the existence and investigation of potential “snitches” and contribute to...