Cash, cars and computers: How B.C. confiscates millions without showing evidence of crime
A year's worth of data shows just 16% of administrative civil forfeiture claims are disputed
Part One of a two-part series on administrative civil forfeiture. Read Part Two here.
Tony Tocaj doesn't have a criminal record, but seven of his cars have been taken by the B.C. government and another four could soon be lost — all because of alleged crimes committed by his customers.
The problem is that several people who've been caught dealing drugs or breaking into homes in Surrey were driving vehicles rented from Tocaj's Vancouver business, according to claims filed by the Civil Forfeiture Office (CFO), a provincial agency.
The government office says Tocaj was, at the very least, "wilfully blind" about how his cars were being used. He insists he had no way of knowing and says he's been left with heavy debt from fighting to get his property back.
The 55-year-old father of four fired his lawyer, unable to pay his legal fees.
"I can't pay [him] anymore…. These people have all the money in the world to fight — they have the government's money to fight you," said Tocaj.
"We're not rich. We're just hardworking people, trying to make a living."
Each of the seven vehicles he's lost and the four still in litigation were claimed through a system known as administrative civil forfeiture.
It's an extension of the basic civil forfeiture program that the B.C. government introduced in 2006. The original program was marketed as a new tool to fight organized crime by cutting into gangsters' profits, and it required the province to file a claim for forfeiture in court.
Administrative civil forfeiture is a fast-track version of that. Introduced in 2011, it allows the province to claim property valued at under $75,000 without going through the courts in most cases, and without securing criminal convictions or charges.
The province says it's an important way to make crime less profitable — and to remove the tools used to commit crime.
But civil liberties advocates argue it's an end run around the criminal justice system, giving the government too much power to seize private property without due process or any presumption of innocence.
"The entire scheme is one of lowering protections against people who are accused," said Micheal Vonn, policy director of the B.C. Civil Liberties Association.
'Simply an unjustifiable system'
According to data obtained through a Freedom of Information request, the province made 913 administrative forfeiture claims last year, amounting to $3.36 million in cash, 288 vehicles, 501 cellphones, 56 computers and a slew of other items including electronics, jewelry and a Wayne Gretzky rookie card.
These administrative claims don't usually get a lot of press, but they account for a whopping 80 per cent of B.C.'s civil forfeiture files, according to the CFO.
That statistic was shocking, but not surprising to Vonn.
"It is simply an unjustifiable system," she told CBC.
Vonn contends that while many ordinary British Columbians may support using civil forfeiture to kneecap organized crime by confiscating the proceeds and tools of illegal activity, they might feel differently about cases like Tocaj's.
"You wouldn't be in support of citizens who have no moral culpability [being] swept into a program to provide cash to the government on the basis of a system in which it doesn't make any sense for them even to attempt to defend themselves," Vonn said.
When the CFO opens an administrative file on property allegedly linked to illegal activity, it must mail a notice to the owner. The owner then has 60 days to file a dispute if they plan to fight the forfeiture; otherwise, their belongings automatically become the property of the government.
The province only has to show its evidence connecting the owner to a crime when someone files a dispute, like Tocaj did, and the claim proceeds to B.C. Supreme Court.
In 2018, just 16 per cent of the 913 administrative files were disputed.
'Our actions are against property, not people'
B.C. was the first province to implement administrative forfeiture, but other provinces have since followed suit, including Saskatchewan and Manitoba.
The administrative system was brought in as a cost-saving measure for the government, according to Phil Tawtel, the CFO's executive director. During the first few years after civil forfeiture was introduced in 2006, most owners of less valuable property were not showing up in court to offer a defence, he said.
"When that happens, the director still has to go back into court, still has to serve documents and still has to run up legal costs to obtain forfeiture," he told CBC in a recent interview.
"The program is a self-funding program. In order to make the program efficient and as effective as possible, administrative forfeiture was brought in."
Tawtel described the program as "tremendously successful" so far and dismissed Vonn's criticisms that it eliminates protections for accused people.
"Our actions are against property, not people. We are not bringing someone to face charges that might result in them going to jail. We are bringing evidence in front of a court that says this cash next to this bag of fentanyl was associated to unlawful activity," he said.
RCMP urge businesses to 'shore up their practices'
In Tocaj's case, the province alleges that he knew or should have known that his cars were being used to commit crimes. He says that's not true, and he's never been charged in relation to any of those crimes.
"I'm here from 8 in the morning until 6 p.m. in my office. I don't move. I don't do anything illegal. All I do: I rent cars to people — from U.S., from Australia, from Europe, from China, from Asia, from any place," he said.
Tocaj argues he has been unfairly targeted by the Surrey RCMP, claiming drug dealers frequently rent cars from big, multinational companies as well as his independent business
"They have big lawyers, these corporations, but you're coming to me because I'm the small guy," he said.
Surrey RCMP spokesperson Cpl. Elenore Sturko told CBC she couldn't answer questions specific to Tocaj's case because of ongoing court proceedings involving the forfeitures.
"We are aware that property from other businesses, including corporate rental agencies, have been used as instruments of unlawful activity," Sturko wrote in an email.
She said the RCMP asset forfeiture team generally speaks to the rental agency involved about how to stop their cars from being used by criminals, but she would not say whether that happened in Tocaj's case.
"The majority of businesses and lending agencies shore up their practices to minimize the potential for further unlawful activity. Where no preventative measures are carried out, a referral to the CFO may take place."
See the data: 2018 B.C. administrative forfeiture files (PDF KB)
See the data: 2018 B.C. administrative forfeiture files (Text KB)CBC is not responsible for 3rd party content