Ontario – Your Vehicle May be Impounded & Forfeited to the Province, if You Have Been Suspended Due to Drinking & Driving Offences Two or More Times in the Last 10 Years

Update: see previous posts January 5, 2010 Ontario Provincial Police R.I.D.E. Results for November 26 through to January 2, 2011 Inclusive, December 29, 2010 Impaired Driving – 1 in 4 Canadians Admit Doing It in Last Year, December 24, 2010 Toronto R.I.D.E Program 2010, November 25, 2010 Ontario – Laws & Consequences Surrounding Impaired Driving

see source, Ministry of the Attorney General

The Civil Remedies Act, 2001 (last amended on Dec.9/09) provides the Attorney General of Ontario with the legal ability to impound your motor vehicle and legally confiscate your vehicle (your property would be forfeited to the Province), unless, under certain conditions, a registered owner of the vehicle agrees to certain court-imposed terms and conditions.

On October 19, 2004 the Ontario government proposed Bill 128. On December 15, 2005 the Ontario Government passed Bill 128 (An Act to amend various Acts with respect to enforcement powers, penalties and the management of property forfeited, or that may be forfeited, to the Crown in right of Ontario as a result of organized crime, marijuana growing and other unlawful activities); the short title of this Act is the “Law Enforcement and Forfeited Property Management Statute Law Amendment Act, 2005.”

A couple years passed and amendments were made to the Civil Remedies Act, 2001, included in the Bill 203, Safer Roads for a Safer Ontario Act, 2007, which came into effect on February 20, 2008.

The Ontario Government further amended the Ontario Regulation 478/09 on December 9, 2009 made under the Civil Remedies Act, 2001 to include a number of other offences in which they can confiscate your vehicle (see 3.1 below).

Civil Remedies Act

Amendments to the Civil Remedies Act, included in the Bill 203, Safer Roads for a Safer Ontario Act, 2007, which came into effect on February 20, 2008, set a new standard for road safety by focusing on vehicles used by repeat drinking and driving offenders.

This law allows civil courts, at the request of the Attorney General, to impound and forfeit a vehicle, if the court finds:

  • That the vehicle was involved in, or is likely to be involved in, a drinking and driving offence, and
  • The vehicle is owned or driven by a person whose driver’s licence has been suspended for a drinking and driving offence two or more times in the preceding 10 years.

The civil court would also have the power to release a vehicle from “impound” before it is forfeited if the registered owner of the vehicle agrees to certain court-imposed terms and conditions including:

  • Fitting the vehicle with an ignition interlock device — an alcohol breath-screening device that prevents a vehicle from starting if it detects a blood alcohol concentration over a pre-set limit
  • Having the registered owner agree that the person whose actions resulted in the forfeiture application would not drive the vehicle.

This law also protects the interests of responsible vehicle owners who do, or have done, all they can to ensure that their vehicle is not being driven, or will not be driven in the future, by the person who continues to or is likely to continue to engage in a drinking and driving offence.

How Civil Vehicle Forfeiture Works

This law applies to automobiles, motorcycles, motor assisted bicycles and snowmobiles.

The process for civil forfeiture of vehicles involved in repeat drinking and driving offences begins when police or Crown prosecutors submit a case to the reviewing authority, an independent Crown counsel in the Ministry of the Attorney General.  That counsel decides whether the statutory criteria in the Civil Remedies Act have been met. Once that is confirmed, the case information is forwarded to the ministry’s Civil Remedies for Illicit Activities Office (CRIA), which is responsible for enforcing the Act.

CRIA lawyers bring proceedings to court on behalf of the Attorney General.  If they can prove that the vehicle was driven, or is likely to be driven, by someone who has committed or is likely to commit a drinking and driving offence, the court can issue orders forfeiting the vehicle to the Crown.

Generally, forfeited vehicles go to public auction and the proceeds deposited into a special purpose account. Direct victims of the unlawful activity associated with the forfeiture can submit a claim for compensation against the funds. Remaining funds may be disbursed for grants to support programs and initiatives that assist victims of unlawful activity or prevent victimization.

The Law

Civil Remedies Act:

UNLAWFUL ACTIVITIES RELATED TO ROAD SAFETY

Definitions

11.1 In this Part,

“approved ignition interlock device” has the same meaning as in section 41.2 of the Highway Traffic Act; (“dispositif de verrouillage du système de démarrage approuvé”)

“Director” means the Director of Asset Management – Civil appointed under section 15.1; (“directeur”)

“owner”, with respect to a vehicle, means,

(a) each person whose name appears on the vehicle portion and the plate portion of the permit, or

(b) if the vehicle is registered in a jurisdiction outside Ontario, each person whose name appears on the certificate of title or registration in that jurisdiction; (“propriétaire”)

“responsible vehicle owner” means an owner of a vehicle, or other person who has an interest in a vehicle, who has done all that can reasonably be done to prevent the vehicle from being used to engage in vehicular unlawful activity, including,

(a) promptly notifying appropriate law enforcement agencies whenever the person knows or ought to know that the vehicle has been, is being or is likely to be used to engage in vehicular unlawful activity,

(b) refusing or withdrawing any permission that the person has authority to give if the person knows or ought to know that such permission has facilitated, is facilitating or is likely to facilitate the vehicle being used to engage in vehicular unlawful activity, and

(c) denying access to the vehicle or to the keys to the vehicle if the person knows or ought to know that the other person is using, has used or is likely to use the vehicle to engage in vehicular unlawful activity, and does not include an owner of the vehicle or other person who has an interest in the vehicle who has given permission to another person to operate the vehicle if the owner or other person with an interest knows or ought to know that,

(d) the other person’s driver’s licence is suspended as a result of vehicular unlawful activity, or

(e) the vehicle is likely to be used to engage in vehicular unlawful activity; (“propriétaire de véhicule responsable”)

“vehicle” means,

(a) a vehicle within the meaning of the Highway Traffic Act, or

(b) a motorized snow vehicle within the meaning of the Motorized Snow Vehicles Act; (“véhicule”)

“vehicular unlawful activity” means an act or omission that,

(a) is an offence under section 253, 254 or 255 of the Criminal Code (Canada) or another provision of the Criminal Code (Canada) that is prescribed by the regulations made under this Act,

(b) is an offence under subsection 53 (1.1) of the Highway Traffic Act or another provision of the Highway Traffic Act that is prescribed by the regulations made under this Act, subject to the conditions or in the circumstances prescribed by the regulation, or

(c) is an offence under an Act of a jurisdiction outside Ontario, if a similar act or omission would be an offence described in clause (a) or (b) if it were committed in Ontario,

whether the act or omission occurred before or after this Part came into force. (“activité illégale liée à l’utilisation d’un véhicule”) 2007, c. 13, s. 32.

Forfeiture Order

11.2 (1) In a proceeding commenced by the Attorney General, the Superior Court of Justice shall, subject to subsection (4) and except where it would clearly not be in the interests of justice, make an order forfeiting a vehicle to the Crown in right of Ontario if the court finds that the vehicle,

(a) was or is likely to be used to engage in vehicular unlawful activity; and

(b) is owned by or is in the care, control or possession of a person whose driver’s licence has been suspended under the Highway Traffic Act for vehicular unlawful activity two or more times in the preceding 10 years. 2007, c. 13, s. 32.

Action or Application

(2) The proceeding may be by action or application. 2007, c. 13, s. 32.

Vehicle Sold, Disposed Of

(3) Where a vehicle that is the subject of a proceeding under this section is sold or otherwise disposed of after the proceeding has been commenced but before an order is made under subsection (1), the proceeding shall be continued in respect of any other vehicle or vehicles owned or in the care, control or possession of a person who, before the sale or other disposition of the original vehicle, owned or had the care, control or possession of the original vehicle and, if the original vehicle would have been found to be subject to an order under subsection (1), the court shall make an order against the other vehicle or vehicles under subsection (1). 2007, c. 13, s. 32.

Responsible Vehicle Owners

(4) If the court would make an order against a vehicle under subsection (1) and a party to the proceeding proves that he, she or it is a responsible vehicle owner of the vehicle, the court, except where it would clearly not be in the interests of justice, shall make such order as it considers necessary to protect the responsible vehicle owner’s interest in the vehicle. 2007, c. 13, s. 32.

Same

(5) Without limiting the generality of subsection (4), an order made under subsection (4) may,

(a) sever any interest in the vehicle or require any interest in the vehicle to be sold or otherwise disposed of, to protect a responsible vehicle owner’s interest in the vehicle; or

(b) provide that the Crown in right of Ontario takes the vehicle subject to the interest of a responsible vehicle owner. 2007, c. 13, s. 32.

No Limitation Period

(6) There is no limitation period for a proceeding under this section. 2007, c. 13, s. 32.

Interlocutory Order for Preservation, Impounding, Modification or Disposition of Vehicle

11.3 (1) On motion by the Attorney General in a proceeding or intended proceeding under section 11.2, the Superior Court of Justice may make any or all of the following interlocutory orders for the preservation, impounding, modification or disposition of any vehicle that is the subject of the proceeding:

1. An order restraining the disposition or encumbrance of the vehicle or its use as collateral under the Personal Property Security Act or otherwise.

2. An order for the vehicle to be impounded by the Director and for the vehicle to be released only on a further order of the court.

3. An order for the possession, delivery or safekeeping of the vehicle.

4. An order requiring that the vehicle be equipped with an approved ignition interlock device.

5. An order for the sale or other disposition of the vehicle.

6. An order that any proceeds of sale or other disposition of the vehicle be paid into court pending the conclusion of the proceeding under section 11.2.

7. An order to sever any interest in the vehicle or to require any interest in the vehicle to be sold or otherwise disposed of.

8. An order giving the Crown in right of Ontario a lien for an amount fixed by the court on the vehicle to secure performance of an obligation imposed by another order made under this subsection.

9. An order requiring the owner or owners to agree, as a condition of the vehicle not being impounded or as a condition of the release of the vehicle from impoundment, that the vehicle shall not be operated by a person whose driver’s licence is suspended as a result of vehicular unlawful activity or has been suspended two or more times in the preceding 10 years as a result of vehicular unlawful activity.

10. An order for the vehicle to be impounded by the Director if an owner of the vehicle fails to comply with an order made under paragraph 4, 5, 6 or 9 or an order made under paragraph 11 relating to the operation of the vehicle, and for the vehicle to be released only on a further order of the court.

11. Any other order relating to the vehicle that the court considers just. 2007, c. 13, s. 32.

Same

(2) The court shall make an order under subsection (1) if the court is satisfied that there are reasonable grounds to believe that the vehicle is owned by or is in the care, control or possession of a person whose driver’s licence has been suspended under the Highway Traffic Act for vehicular unlawful activity two or more times in the preceding 10 years and that the vehicle,

(a) is impounded under the Highway Traffic Act as a result of vehicular unlawful activity; or

(b) was or is likely to be used to engage in vehicular unlawful activity. 2007, c. 13, s. 32.

Vehicle Sold, Disposed Of

(3) Where a vehicle that is the subject of a proceeding or intended proceeding under section 11.2 is sold or otherwise disposed of, a motion under this section may be continued or brought in respect of any other vehicle or vehicles owned or in the care, control or possession of a person who owned or had care, control or possession of the original vehicle and, if the court would have made an order under subsection (1) in respect of the original vehicle, the court shall make an order under subsection (1) in respect of such other vehicle or vehicles. 2007, c. 13, s. 32.

Release of Impounded Vehicle

(4) A vehicle ordered released under subsection (1) shall not be released,

(a) if it is still subject to impoundment under the Highway Traffic Act;

(b) if all of the costs incurred by the Crown relating to a proceeding or intended proceeding under this Part with respect to the preservation, impounding, modification or storage of the vehicle have not been paid; or

(c) if the impound costs have not been paid to the operator of the impound facility. 2007, c. 13, s. 32.

Motion made without notice

(5) An order under subsection (1) may be made on motion without notice for a period not exceeding 30 days. 2007, c. 13, s. 32.

Extension

(6) If an order under subsection (1) is made on a motion without notice, a motion to extend the order may be made only on notice to every party affected by the order unless the court is satisfied that because a party has been evading service or because there are other exceptional circumstances, the order ought to be extended without notice to the party. 2007, c. 13, s. 32.

Same

(7) An extension may be granted on a motion without notice for a further period not exceeding 30 days. 2007, c. 13, s. 32.

Liens on Vehicles

(8) If an order under paragraph 8 of subsection (1) gives the Crown a lien on a vehicle,

(a) the Personal Property Security Act applies with necessary modifications to the lien, despite clause 4 (1) (a) of that Act;

(b) the lien shall be deemed to be a security interest that has attached for the purposes of the Personal Property Security Act; and

(c) the Attorney General may perfect the security interest referred to in clause (b) for the purposes of the Personal Property Security Act by the registration of a financing statement under that Act. 2007, c. 13, s. 32.

Costs

(9) The costs associated with the forfeiture, preservation, impounding, modification, storage or disposition of a vehicle under this Part, including the costs of equipping the vehicle with an approved ignition interlock device, incurred by the Crown or any person are a debt due by the owner of the vehicle at the time the order was made to the Crown or person who incurred the costs, and the debt may be recovered in any court of competent jurisdiction. 2007, c. 13, s. 32.

Assignment of Duties to Director

(10) When the Attorney General requests it, the court making an order under subsection (1) shall assign any duties in respect of the vehicle to the Director. 2007, c. 13, s. 32.

Special Purpose Account

11.4 (1) If a vehicle forfeited to the Crown in right of Ontario under this Part is converted to money, the money shall be deposited in a separate, interest bearing account in the Consolidated Revenue Fund. 2007, c. 13, s. 32.

Same

(2) For the purpose of the Financial Administration Act, money deposited under subsection (1) shall be deemed to be money paid to Ontario for a special purpose. 2007, c. 13, s. 32.

Payments Out of Account for Crown’s Costs

(3) If money is deposited in an account under subsection (1), the Minister of Finance shall make payments out of the account, at the request of the Director and in the amounts determined by the Director under subsection (8), to compensate the Crown in right of Ontario for its costs incurred,

(a) in conducting the proceeding under this Part;

(b) in determining whether the proceeding under this Part should be commenced;

(c) in preserving, impounding, modifying, storing, forfeiting or disposing of the vehicle under this Part; and

(d) in enforcing or complying with orders made under this Part in respect of the vehicle. 2007, c. 13, s. 32.

Other Payments Out of Account

(4) Subject to the regulations made under this Act and after making the payments, if any, out of the account under subsection (3), the Minister of Finance may make payments out of the account described in subsection (1) for the following purposes:

1. To compensate persons who suffered pecuniary or non-pecuniary losses, including losses recoverable under Part V of the Family Law Act, as a result of the vehicular unlawful activity that gave rise to the forfeiture.

2. To assist victims of vehicular unlawful activities or to prevent vehicular unlawful activities that result in victimization.

3. To compensate the Crown in right of Ontario for costs incurred in respect of any proceeding under this Part other than the costs described in subsection (3), and for pecuniary losses suffered as a result of the vehicular unlawful activity that gave rise to the forfeiture, including costs incurred in remedying the effects of that vehicular unlawful activity.

4. To compensate a municipal corporation or a public body that belongs to a class prescribed by the regulations made under this Act for pecuniary losses that were suffered as a result of the vehicular unlawful activity that gave rise to the forfeiture and that are costs incurred in remedying the effects of that vehicular unlawful activity.

5. If, according to the criteria prescribed by the regulations made under this Act, the amount of money in the account is more than is required for the purposes referred to in paragraphs 1 to 4, such other purposes as are prescribed by the regulations. 2007, c. 13, s. 32.

Director’s Election to Give Priority to Persons who Suffered Loss

(5) The Director may elect not to request payment out of the account under subsection (3) if, in his or her opinion, all or substantially all of the money in the account is needed to compensate the persons who are entitled to compensation under paragraph 1 of subsection (4). 2007, c. 13, s. 32.

Payment for Crown’s Costs after Payment to Persons who Suffered Loss

(6) If the Director elects not to request payment under subsection (3), the Minister of Finance shall, at the request of the Director and in the amounts determined by the Director under subsection (8), make payments to compensate the Crown in right of Ontario for its costs incurred as described in subsection (3) out of the account, after the payments are made to compensate the persons who are entitled to compensation under paragraph 1 of subsection (4). 2007, c. 13, s. 32.

Payment for Crown’s Costs Out of Other Accounts

(7) If the amount of money in the account is insufficient to satisfy the Crown’s costs pursuant to a request made by the Director under subsection (3) or (6), the Minister of Finance shall make payments to compensate the Crown in right of Ontario for its unsatisfied costs out of another account into which money is deposited under subsection (1) as a result of another proceeding, after payments have been made out of that account to compensate the persons who are entitled to compensation out of that account under paragraph 1 of subsection (4) and to compensate the Crown for its costs incurred in respect of that account. 2007, c. 13, s. 32.

Determination of Crown’s Costs

(8) The amount of the Crown’s costs under subsection (3) or (6) shall be determined by the Director on any basis, or combination of them, that he or she considers appropriate in the circumstances, including,

(a) a flat rate for every forfeiture;

(b) a flat rate for every step taken;

(c) an hourly rate;

(d) the actual costs; or

(e) a percentage of the value of the vehicle forfeited. 2007, c. 13, s. 32.

Related Vehicles

(9) If money is required to be deposited under subsection (1) in respect of two or more vehicles and the Minister of Finance is of the opinion that the vehicles are related, the money may be deposited into a single account and, for the purpose of payments out of the account, a reference in subsection (3), (4) or (8) to “the vehicle” shall be deemed to be a reference to any of the vehicles. 2007, c. 13, s. 32.

The Ontario Government further amended the Ontario Regulation 478/09 on December 9, 2009 made under the Civil Remedies Act, 2001 to include a number of other offences in which they can confiscate your vehicle (see 3.1 below).

2. The Regulation is Amended by Adding the Following Section:

Prescribed Offences Constituting Vehicular Unlawful Activity (Section 11.1 of the Act)

Prescribed Offences, Criminal Code (Canada)

3.1 Offences under the following provisions of the Criminal Code (Canada) are prescribed offences for the purposes of clause (a) of the definition of “vehicular unlawful activity” in section 11.1 of the Act:

1. Sub-section 249.1 (3) (Flight causing bodily harm or death).

2. Section 249.2 (Causing death by criminal negligence (street racing)).

3. Section 249.3 (Causing bodily harm by criminal negligence (street racing)).

4. Section 249.4 (Dangerous operation of motor vehicle while street racing).

5. Subsection 259 (4) (Operation while disqualified).

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