Volume 1 - Resource Management
Chapter 16 - Enforcement

Policy 16.15 - Forfeiture of Timber, Chattels, Hay, etc.

Effective Date: 07-Jan-2005
Responsible Branch: Compliance and Enforcement Branch

Resource Management Volume Table of Contents | Amendment Log

Scope

This policy covers the seizure and forfeiture of timber, timber products, hay, and other chattels pursuant to section 67 of the Forest and Range Practices Act [the Act].

This policy does not cover seizure for prosecution of an offence under forestry legislation or the Criminal Code [Canada].

This policy does not cover forfeiture of livestock pursuant to section 68 of the Forest and Range Practices Act. See Ministry of Forests Policy 16.16 for Ministry policy on the seizure of livestock.

This policy rescinds and replaces previous Ministry Policy 16.15, dated October, 1997.

Purpose

To ensure that seizures of timber, lumber, veneer, plywood, pulp, newsprint, special forest products, wood residue and chattels on which the government has a lien under section 130 (1) (d) of the Forest Act; seed, hay, botanical forest products or any vehicle or vessel transporting these items:

  • are conducted in legally defensible and professional manner;
  • are conducted in a provincially consistent manner;
  • are conducted in a manner that can withstand public scrutiny, and
  • consider the public interest.

Definitions

For the purpose of this policy:

"Act" means the Forest and Range Practices Act.

"DCL" means District Compliance Leader.

"DDM" means a delegated decision-maker pursuant to the Act and the Ministry of Forests Delegation of Minister's Powers and Duties Matrix.

"DM" means District Manager.

"ERA" means the Enforcement Action, Administrative Review and Appeals system for tracking all suspected cases of non-compliance.

"goods" means timber, lumber, veneer, plywood, pulp, newsprint, special forest products, wood residue and chattels on which the government has a lien under section 130 (1) (d) of the Forest Act, seed, hay, or botanical forest products.

"person" includes a corporation, partnership, party, or individual.

"RCL" means Regional Compliance Leader.

"RSM" means Regional Staff Manager.

"seizing" means the actual taking away of certain goods from a person under authority of section 67 of the Act.

"seizing forest official" means the designated forest official exercising their legal authority and discretion to seize goods under section 67 of the Act.

"timber" means trees, whether standing, fallen, living, dead, limbed, bucked, manufactured into lumber or peeled, and includes special forest products.

Background

In order to seize timber, chattels, hay, etc. pursuant to the Act, a person must be a designated forest official as defined by the Act.

Policy

It is Ministry of Forests' policy that:

General

Forest officials have the discretion to seize goods pursuant to section 67 of the Act, and where seizure has occurred, to lift the seizure and release the seized goods pursuant to this policy and section 67 of the Act.

Subject to the discretion of the DCL and/or the RCL, no forest official will utilize his or her authority to seize without the proper training in and knowledge of section 67 of the Act, other legislation as deemed appropriate, and this Policy.

Purpose of Seizure

Seizures under section 67 of the Act are for administrative purposes only. A forest official may seize to return to the Crown what rightfully belongs to the Crown, to determine ownership, to make the Crown whole arising from theft, unauthorized harvest, or to collect for any outstanding debts to the Crown.

Except in circumstances where doing so may compromise the integrity of an investigation, the seizing forest official:

  • will notify in writing the person from whom the goods have been seized, and
  • will provide such notification as soon as possible and no later than 5 working days after the seizure.

The notification will:

  • describe the circumstances of the seizure;
  • provide the reasonable grounds for the seizure;
  • describe the quantity and type of the seized goods;
  • describe the basis of the forest official's authority to seize;
  • provide an opportunity for the person to provide any documentation and/or rationale to dispute the seizure or assert ownership; and
  • describe any further administrative processes that may arise from the seizure.

Where items are initially seized for an administrative purpose, and it is later determined that the seized items will be used for evidentiary purposes in support of the prosecution of an offence under forestry legislation, an Offence Act Form 1: Information to Obtain a Warrant to Search and Seize [Warrant], will be submitted to a Justice of the Peace and the Warrant will be served on the Ministry of Forests.

Discretion

Forfeiture is one of several enforcement actions available to deal with contraventions. It may not be appropriate to seize goods in every situation, regardless of whether a forest official has the authority to do so.

In deciding whether to seize goods, the designated forest official will:

  1. Determine with reasonable certainty that the goods to be seized fall into one of the categories enumerated in section 67 of the Act.
  2. Determine that seizing the goods involved is an appropriate option in the circumstances. In making such a determination the forest official will consider the following:
    • will failure to seize the goods result in a loss of evidence?
    • will failure to seize the goods result in the Crown losing possession of those goods?
    • will failure to seize the goods result in the loss of revenue due the Crown?
    • will seizure of the goods place a financial burden on the Crown that outweighs the loss of revenue to the Crown?
    • is seizure of the goods in the public interest?

A seizure that places a financial burden on the Crown that outweighs the loss of revenue to the Crown may still be in the public interest.

A vehicle or vessel transporting timber; timber products; seed; hay; or botanical forest products that is subject to seizure may also be seized. Any seized vehicle or vessel will be released once the seized goods have been transported to a secure location and removed from the vehicle or vessel.

All action taken and decisions made with respect to the disposition of any seized goods will be documented with a rationale.

Seizure Process

In seizing any goods, the forest official shall ensure that (other than where doing so may compromise the integrity of any investigation/s):

  • a Seizure Notice (FS 4) is attached in more than one conspicuous location on the goods being seized;
  • seized timber is conspicuously marked with a FS timber mark;
  • photographs of the seized goods, with the seizure notices attached, are taken from several angles;

Where the person from whom the goods are being seized is present, the forest official will inform that person that;

  • the seizure is authorized under section 67 of the Act, and where appropriate, will indicate the location to which the seized goods are to be transported,
  • the person has a right to dispute the seizure; and
  • formal notification will be provided within 5 working days.

The Seizure Report (FS 96A) will be completed upon return to the forest official's office.

Storage and Security of Seized Goods

The C&E program at each Ministry office will ensure that any seized goods are stored in a secure location, and will ensure the safekeeping of the seized goods.

Any decision on the disposition of the seized goods will be made in a timely manner with due consideration of the interests of the person from whom the goods were seized.

Lifting of Seizures

It may be appropriate for the seizing forest official to lift a seizure where the seizing forest official:

  • has determined that the seized goods are not Crown timber, hay or hay stored on Crown land, botanical forest product, or seed; or
  • has reasonable grounds to believe that the timber, hay, botanical forest product or seed was harvested under an authority; or
  • is satisfied with all of the scaling and transportation documents; or
  • is satisfied that the seizure does not serve the public interest; or
  • is satisfied that the seizure is no longer necessary to protect the Crown's interest, or
  • has reasonable grounds to believe that the seized goods are the property of the person from whom the goods were seized.

Where the seizing forest official has reasonable grounds to believe that the seized goods are the property of another person[s], and the person from whom the items were seized agrees in writing, the seizing forest official may lift the seizure and release the goods to the rightful owner of the goods.

Where the seizing forest official exercises his or her discretion, the seizing forest official will make an informed decision and the facts supporting that decision and the rationale for that decision along with copies of any relevant documentation, statements or other evidence will be recorded and placed on the appropriate file.

Seizure Fees

The Ministry of Forests does not have the authority to require the payment of a seizure fee in return for the release of items seized under the authority of section 67 of Act. Ministry of Forests' staff will not request or accept the payment of a seizure fee when releasing items seized.

A DDM and/or the DM may recover costs from the proceeds of the sale of seized goods and may only do so pursuant to sections 67 (5) and 67 (7) of the Act.

Disposition of Seized Goods by the Seizing Official

Where the seizing forest official believes it is appropriate to recommend the sale of seized goods, the forest official will forward a briefing note to the appropriate DDM [a RSM or a DM] with recommendations as to the disposal of the seized goods.

Any decision to recommend the sale of seized goods will be made in a timely manner and will balance the interests of the Crown and those of the person from who the goods were seized, as well as the interests of any third party claiming ownership of the seized goods.

Prior to making any recommendation to sell seized goods, the forest official will:

  • make all reasonable efforts to determine ownership;
  • will consider all third party claims; and
  • will make a reasonable effort to solicit supporting evidence of any claims to ownership.

District-based seizing forest officials will forward a briefing note recommending the sale of seized goods to DDMs other than their District Manager, except where

  • the District Manager will conduct concurrent hearings for the purpose of making a statutory determination of non-compliance and an administrative determination on the disposal of the seized goods, or
  • it is reasonable to anticipate that the District Manager will not be the DDM responsible for any determination that will involve the same person/s and arises from the same set of circumstances that initiated the seizure.

Any DDM who makes an administrative determination with respect to the sale of seized goods will not act as the DDM for any subsequent statutory determination that involves the same person/s and arises from the same set of circumstances that initiated the seizure.

The briefing note recommending disposition of seized goods will include but is not limited to including,

  • time and location of the seizure;
  • volume, and value (to the Crown and the owner of the goods if relevant) of the seized goods;
  • authority for the seizure;
  • the reasonable grounds for seizure;
  • copies of all information or documents provided by the owner [purported or otherwise] of the seized goods that may contest the seizure;
  • copies of all information or documents provided by any third party claimants to the seized goods.

The DDM may determine whether to sell, return the seized goods to the person from whom they were seized, or to instruct that the seized goods be delivered to another person at the direction of the person from whom the goods were seized, regardless of the final location of the seized goods.

Opportunity to be Heard

Prior to disposing of any seized goods, the person from whom the goods were seized will be offered an opportunity to be heard. This may be written or oral and is at the discretion of the DDM.

The DDM will offer an Opportunity to be Heard to any third party making a claim to the seized goods, regardless of whether the goods were seized from that person. This may be written or oral and is at the discretion of the DDM. However, it is not the role of the DDM to adjudicate between contrary claims of ownership other than to exercise the authority to sell the seized goods, return the goods to the person from whom they were seized, turn the goods over to another person at the direction of the person from whom the goods were seized or to turn the goods over to the jurisdiction of the courts.

A DDM's determination on the disposition of seized goods will be made within 30 days from the date of any Opportunity to be Heard.

Disposition of Seized Goods by a DDM

DDMs may dispose of any goods seized pursuant to sections 67 (1) (a), (e), (f) or (h) of the Act other than by public auction where there is a risk to forest health or where the quality, quantity, and or location of the seized goods reasonably precludes an expectation of public interest in the auction of the seized goods. In these circumstances, a regionally based DDM will consult with the DM on the disposition of seized goods located within a district.

Seized timber in a volume of greater than 500 cubic meters will be offered to a Timber Sales Manager prior to otherwise disposing of the seized timber.

Goods seized pursuant to sections 67(1) (b), (c), (d) or (g) of the Act will be sold at public auction.

Where the DDM is a District Manager, the DDM may elect to use a Forestry Licence to Cut pursuant to section 47.6 (2.1) of the Forest Act or a FS Form 1231, Sale of Seized Timber Agreement to dispose of the timber.

Where the DDM is a RSM, the RSM will use a FS Form 1231, Sale of Seized Timber Agreement to dispose of the timber.

Where a DDM disposes of seized goods other than by auction, the DDM will provide a rationale in writing for the manner in which the seized goods were disposed.

Recording Seizures

All seizure of timber will be recorded in ERA.

References