Difference between pages "Conditional Sales Contracts and Security Agreements (11:VI)" and "Missing Persons and Abductions (4:IX)"

Revision as of 03:16, 3 November 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 30, 2021.

According to the National Center for Missing Persons and Unidentified Remains (NCMPUR), British Columbia records the highest number of missing persons in the country, accounting for more than 40% of the countries 29,645 cases in 2020 .

NCMPUR categorizes probable cause for missing persons into the following categories:

Abduction by stranger
Accident
Wandered Off
Parental Abduction with Custody Order
Parental Abduction without Custody Order
Abducted by Relative
Runaway
Presumed Dead
Human Trafficking
Unknown

In British Columbia, there is no waiting period to report someone missing and anyone can make a report. Furthermore, you do not need to be a member of the missing persons immediately family to make a report. Before contacting police, you may want to reach out to family members, friends, loved ones and next of kin prior to filing a report. However, if these attempts at gaining information on an individuals whereabouts are unsuccessful, reporting to police is the best next step. You can expect the following from police when making a report :

Report will be taken seriously, and investigation started without delay.
Conducting a thorough investigation, including risk assessment, focused on the safety and wellbeing of the missing person
Offer information about supports or resources that may be available, designate a contact person within the police force to support ongoing communication, and keep you updated on the investigation, as appropriate
Consult with the family or reportee before releasing information or photographs of the missing person to the media, unless doing so would jeopardize the missing person or the investigation, for example by creating delays.
When a missing person has been found, attend the location in person to confirm their identity and wellbeing. To balance respect for privacy with police duty to investigate safety concerns, this may be handled differently in some circumstances.
Not close a file until the missing person has been located and their identity has been established.
Not share information about the location of a found missing adult without their permission. Police may also keep this information confidential in certain cases involving minors, depending on the circumstances.
Where appropriate, work with other agencies to promote a found missing person’s ongoing safety and limit recurring reports involving the same person, or to prevent others from going missing in similar circumstances.

A. Governing Legislation and Resources

1. Legislation

The Missing Persons Act (the Act) came into force June 9, 2015, setting out the provisions for accessing records that will help find missing persons, including special provisions for people who are vulnerable, youth and persons at risk.

The Act allows a member of a police force to apply to the court for records to help find a missing person. When there is a risk of serious harm to a missing person or a concern that records could be destroyed, the Act authorizes officers to make an Emergency Demand for Records without going through the court. Section 18 of the Act requires that a report on the use of Emergency Demands for Records must be submitted to the Minister or his or her designate on an annual basis and must be made public.

The Act defines a missing person as an individual whose whereabouts are unknown despite reasonable efforts to locate the individual and:

1. who has not been in contact with those persons who would likely be in contact with the individual or;

2. whose safety and welfare are feared for given:

   i) the individuals age 
   ii) the individual’s physical or mental capabilities, or
   iii) the circumstance surrounding the individuals absence

2. Resources

a. The National Centre for Missing Persons and Unidentified Remains (NCMPUR)

NCMPUR is Canada's national centre that provides law enforcement, medical examiners and chief coroners with specialized investigative services in support of missing persons and unidentified remains investigations.

One of the NCMPUR’s responsibilities is managing the national public website to provide information on selected cases to the public for the purposes of seeking tips on investigations.

The Canadasmissing.ca website features profiles of missing persons and unidentified remains that have been published at the request of the primary investigator from either police, coroner or medical examiner agency. Furthermore, resources are provided that instruct individuals on how to submit tips, specialized services, and fact sheets.

b. Travel Reunification Services

This is a program designed to assist a parent or a legal guardian who cannot afford to return the abducted child to or within Canada, once the child is located. In order to be eligible for travel assistance, the following guidelines must be met:

1. The request for transportation must come from the investigating Police Agency or the Central Authority from the child's home province:

A law enforcement agency investigating a child abduction complaint;
A representative of a Canadian Central Authority pursuant to the Hague Convention on the Civil Aspects of International Child Abduction; or
An agency designated by NCMPUR Operations.

2.The requesting agency is responsible for assessing the financial status of the family and determining if transportation should be provided. (For example: whether the requesting parent's financial circumstances would make paying for the child and/or parent's transportation prohibitive).

3.Assistance will be limited to child abduction situations, including situations where the child is abducted by parent or legal guardian.

4.Assistance will be provided to transport:

In the case of older abducted children, home; and
In the case of younger children, enable the left behind parent or legal guardian to travel to the jurisdiction where the child is and return home.

5.In some cases, it may be appropriate for a person other than the left behind parent or legal guardian to retrieve the child and accompany the child home.

6.If the left behind parent is travelling to retrieve the child, the requesting authority must make every reasonable effort to confirm/ensure that the parent will be able to obtain legal physical custody of the child. For example, consideration should be given to whether a return order is pending or under appeal, the child's whereabouts are known, there are legal impediments to the child's removal, etc.

7.The requesting agency must ensure that the parent or legal guardian has all the necessary documents in order to retrieve the child. For example: child's birth certificate; custody order; passport and any other necessary travel documents.

8.Assistance will not be provided to transport the abductor, even if he or she is the person able to accompany the child home.

@@ Line 1: / Line 1: @@
-{{REVIEWED LSLAP | date= August 8, 2021}}
+{{REVIEWED LSLAP | date= June 30, 2021}}
-{{LSLAP Manual TOC|expanded = consumer}}
+{{LSLAP Manual TOC|expanded = victims}}
+According to the National Center for Missing Persons and Unidentified Remains (NCMPUR), British Columbia records the highest number of missing persons in the country, accounting for more than 40% of the countries 29,645 cases in 2020 .
-The ''Personal Property Security Act'', RSBC 1996, c 359 [PPSA] governs conditional sales agreements (e.g. the contract is subject to some condition to be fulfilled later) and security contracts. The ''PPSA'' established a new unified system for the registration, priority, and enforcement of transactions where collateral is given to secure payment or the performance of an obligation. The main purpose of the ''PPSA'' is to offer lenders or creditors a system of priority vis-à-vis other creditors where it is necessary for the lender or seller to take an interest in personal property to ensure the obligations of the borrower or purchaser are met. The legislation effectively creates a system for the registration and enforcement of a security interest against personal property.
+NCMPUR categorizes probable cause for missing persons into the following categories:
-Under s 2, the ''PPSA'' governs every transaction that creates a security interest, regardless of the form of the agreement, even in agreements that do not appear to be security agreements, so long as it is creating a security interest in substance. A “'''security interest'''” is defined in s 1(1) as an interest in goods that secures payment or the performance of an obligation.
+*	Abduction by stranger
+*	Accident
+*	Wandered Off
+*	Parental Abduction with Custody Order
+*	Parental Abduction without Custody Order
+*	Abducted by Relative
+*	Runaway
+*	Presumed Dead
+*	Human Trafficking
+*	Unknown
-:'''NOTE:''' For the purposes of this section, goods is used to define security interests. However, the actual definition is broader than that. For more information, see ss 1(a) and ss 1(b) “security interest”.
-[[Introduction to Creditors%27 Remedies (10:I) | Chapter 10: Creditors’ Remedies and Debtors’ Assistance]] has a discussion on the protection offered to a consumer by the ''PPSA'', including the requirements of enforceable security. The ''PPSA'' has some special considerations applicable if the goods in which the collateral was taken were consumer goods. '''Consumer goods''' are defined in s 1(1) as goods that are acquired primarily for personal, family, or household purposes.
+In British Columbia, there is no waiting period to report someone missing and anyone can make a report. Furthermore, you do not need to be a member of the missing persons immediately family to make a report. Before contacting police, you may want to reach out to family members, friends, loved ones and next of kin prior to filing a report. However, if these attempts at gaining information on an individuals whereabouts are unsuccessful, reporting to police is the best next step. You can expect the following from police when making a report :
-== A. Creditor’s Remedies Against the Debtor ==
+*	Report will be taken seriously, and investigation started without delay.
+*	Conducting a thorough investigation, including risk assessment, focused on the safety and wellbeing of the missing person
+*	Offer information about supports or resources that may be available, designate a contact person within the police force to support ongoing communication, and keep you updated on the investigation, as appropriate
+*	Consult with the family or reportee before releasing information or photographs of the missing person to the media, unless doing so would jeopardize the missing person or the investigation, for example by creating delays.
+*	When a missing person has been found, attend the location in person to confirm their identity and wellbeing. To balance respect for privacy with police duty to investigate safety concerns, this may be handled differently in some circumstances.
+*	Not close a file until the missing person has been located and their identity has been established.
+*	Not share information about the location of a found missing adult without their permission. Police may also keep this information confidential in certain cases involving minors, depending on the circumstances.
+*	Where appropriate, work with other agencies to promote a found missing person’s ongoing safety and limit recurring reports involving the same person, or to prevent others from going missing in similar circumstances.
-=== 1. Control by the Creditor ===
-Under s 58, the ''PPSA'' provides that, where the debtor defaults on a security agreement, the creditor can take control of the collateral item through any method authorised by law with a few select exceptions (s 56). Where, however, the collateral is a consumer good and the debtor has paid two-thirds of the total amount secured, the creditor may '''not''' seize the goods without an application to the court (s 58(3))
+== A. Governing Legislation and Resources ==
-=== 2. Action by the Creditor ===
+=== 1. Legislation ===
-A creditor (lender) can sue the debtor (borrower) for breach of contract and seek repayment of the monies owed. Additionally, the creditor can enforce their interest in the collateral by seizure (s 58) or possession (s 61). Generally, the secured party (lender) can seize '''and''' sue for any deficiency. However, when consumer goods form all or merely a portion of the collateral, the secured party must elect to '''seize or sue''', subject to s 58(3).
+The Missing Persons Act (the Act) came into force June 9, 2015, setting out the provisions for accessing records that will help find missing persons, including special provisions for people who are vulnerable, youth and persons at risk.
-=== 3. Acceleration Clauses ===
+The Act allows a member of a police force to apply to the court for records to help find a missing person. When there is a risk of serious harm to a missing person or a concern that records could be destroyed, the Act authorizes officers to make an Emergency Demand for Records without going through the court. Section 18 of the Act requires that a report on the use of  Emergency Demands for Records must be submitted to the Minister or his or her designate on an annual basis and must be made public.
-A security agreement provides that a creditor may accelerate payment (or performance) by the debtor if the creditor, in good faith, believes and has commercially reasonable grounds to believe that the prospect of payment or performance is about to be impaired or that the collateral is or is about to be placed in jeopardy (s 16).
+The Act defines a missing person as an individual whose whereabouts are unknown despite reasonable efforts to locate the individual and:
-== B. Restrictions on the Creditor’s Right to Dispose ==
+. who has not been in contact with those persons who would likely be in contact with the individual or;
-Under s 59 of the ''PPSA'', a creditor cannot sell the seized goods before the expiration of the '''20-day''' notice period, as every party entitled to notice under ss 59(6) or ss 59(10) via approved methods outlined in s 72 may '''redeem''' the collateral by fulfilling the obligations secured in the security agreement (s 62). Where the collateral is a consumer good, the redeeming party need only pay the amount in arrears (i.e. debt owing to date) plus reasonable seizure fees (s 62(1)(b)). This is known as the '''right of reinstatement'''. It cannot be used more than twice in a 12-month period (s 62(2)).
+. whose safety and welfare are feared for given:
+    i) the individuals age
+    ii) the individual’s physical or mental capabilities, or
+    iii) the circumstance surrounding the individuals absence
-== C. Disqualification from “Seize or Sue” Provisions ==
+=== 2.	Resources ===
-A party with a security interest in consumer goods may avoid the “seize or sue” restriction where:
+==== a. The National Centre for Missing Persons and Unidentified Remains (NCMPUR) ====
-* a) The debtor (borrower) is a company, a partnership of corporations, or a joint venture of corporations (s 55(4)(a));
-* b) The debtor has engaged in wilful or reckless acts or neglect which have caused substantial damage or deterioration to the goods, and the secured party may seek a court order pursuant to s 67(9) disqualifying the debtor from the rights and remedies ordinarily available under
-ss 67(1) – (7); or
-* c) The secured party discovers after seizure that an accession that was collateral has been removed and not replaced by other goods of equivalent value and free from prior security interests; a claim may be advanced against the debtor for the value of the accession (s 67(8)).
-:'''NOTE:''' Accession means goods that are installed in or affixed to other goods. For example, a shovel attached to a truck. See ss 38 and 1(1) for more information about accessions.
+NCMPUR is Canada's national centre that provides law enforcement, medical examiners and chief coroners with specialized investigative services in support of missing persons and unidentified remains investigations.
-The seizure of consumer goods generally extinguishes the debt in relation to the security agreement. However, there are exceptions under s 67:
+One of the NCMPUR’s responsibilities is managing the national public website to provide information on selected cases to the public for the purposes of seeking tips on investigations.
-* If the creditor (lender) returns the consumer goods within 20 days after the seizure, that will revive the debt;
-* If the security agreement is a mortgage or an agreement for sale and the consumer goods are part of this security, in the case that the lender exercises their rights under the mortgage or agreement of sale but does not seize the goods, the debt is '''not''' extinguished; or
-* If the creditor (lender) has a purchase money security interest in the seized consumer goods and other consumer goods, the debt is extinguished to the extent identified in the security instrument as relating to the seized consumer goods.
-These qualifications also apply in the event of a voluntary foreclosure and a voluntary surrender of consumer goods rather than a seizure.
+The Canadasmissing.ca website features profiles of missing persons and unidentified remains that have been published at the request of the primary investigator from either police, coroner or medical examiner agency. Furthermore, resources are provided that instruct individuals on how to submit tips, specialized services, and fact sheets.
-For consumer goods only, if the creditor (lender) chooses not to enforce their interest in the collateral and chooses to seek judgement instead, the security interest in the collateral is also extinguished (s 67(10)(a)).
+==== b. Travel Reunification Services ====
-== D. Third Party Purchaser’s Rights ==
+This is a program designed to assist a parent or a legal guardian who cannot afford to return the abducted child to or within Canada, once the child is located. In order to be eligible for travel assistance, the following guidelines must be met:
-Under ss 30(3) and 30(4), where a third-party purchases collateral in the form of consumer goods worth less than $1,000, and the third party does not have knowledge of the security agreement between the vendor and the creditor, the third party takes the item free of the creditor’s interest, even if registered. This is known as the “garage sale” defence. The purchaser is known more commonly as a ''bona fide'' '''purchaser for value without notice'''.
+. The request for transportation must come from the investigating Police Agency or the Central Authority from the child's home province:
+*A law enforcement agency investigating a child abduction complaint;
+*A representative of a Canadian Central Authority pursuant to the Hague Convention on the Civil Aspects of International Child Abduction; or
+*An agency designated by NCMPUR Operations.
-The third party’s priority over the creditor ends if there is knowledge of the pre-existing security interest. Under s 1(2), “knowledge” is judged '''objectively''' rather than subjectively (i.e. would a reasonable person know?).
+.The requesting agency is responsible for assessing the financial status of the family and determining if transportation should be provided. (For example: whether the requesting parent's financial circumstances would make paying for the child and/or parent's transportation prohibitive).
-:'''NOTE:''' If the creditor’s interest in the collateral does not continue because the third-party purchaser takes title free of that interest, the creditor’s interest will continue in the proceeds of the sale of the security (collateral) by the debtor (borrower) to the ''bona fide'' purchaser if the original collateral is continuously perfected under s 28(2) or the proceeds are perfected within 15 days under s 28(3), unless the creditor authorized the deal. For more information on perfection and attachment, see s 19 and s 12, respectively.
+.Assistance will be limited to child abduction situations, including situations where the child is abducted by parent or legal guardian.
-Security is perfected when the requirements under the ''PPSA'' are met and has attached, meaning that the collateral has come into existence (i.e. if security has not attached, then there is no collateral). Under s 12, a security interest attaches when:
+.Assistance will be provided to transport:
-* a) Value is given;
+*In the case of older abducted children, home; and
-* b) The debtor has rights in the collateral; and
+*In the case of younger children, enable the left behind parent or legal guardian to travel to the jurisdiction where the child is and return home.
-* c) There is an enforceable security interest (see s 10 for writing requirements for security agreements) unless the parties specifically agree to postpone the time of attachment, in which case the security interest attaches at that specified date.
-Generally, once security is perfected, the creditor’s interest has priority over the interests of third parties, whereas unperfected security takes a lower priority (s 19). However, as described above, one exception to s 19 is in s 30 where a creditor’s interest in the collateral does not continue because of a ''bona fide'' purchaser’s interest, but the creditor’s interest will continue in the proceeds.
+.In some cases, it may be appropriate for a person other than the left behind parent or legal guardian to retrieve the child and accompany the child home.
-== E. Application of PPSA to Leases ==
+.If the left behind parent is travelling to retrieve the child, the requesting authority must make every reasonable effort to confirm/ensure that the parent will be able to obtain legal physical custody of the child. For example, consideration should be given to whether a return order is pending or under appeal, the child's whereabouts are known, there are legal impediments to the child's removal, etc.
-Many consumers lease cars instead of buying on credit under a financing agreement. A lease '''can''' qualify as a security agreement: see [https://www.canlii.org/en/bc/bcca/doc/2007/2007bcca144/2007bcca144.html?autocompleteStr=Daimler%20chr&autocompletePos=3 ''Daimler Chrsyler Services Canada Inc. v Cameron'', 2007 BCCA 144] for factors and [https://www.canlii.org/en/bc/bcsc/doc/1995/1995canlii3263/1995canlii3263.html?resultIndex=3 ''Re Bronson'' (1995), 34 CBR (3d) 255 (BCSC)]. Therefore, if they default and the car is repossessed, the “seize or sue” restriction may apply, but the situation is not always clear-cut. LSLAP clients should be referred to a lawyer.
+.The requesting agency must ensure that the parent or legal guardian has all the necessary documents in order to retrieve the child. For example: child's birth certificate; custody order; passport and any other necessary travel documents.
-== F. Bills of Exchange Act ==
+.Assistance will not be provided to transport the abductor, even if he or she is the person able to accompany the child home.
-Under Part V of the ''Bills of Exchange Act'' [''BEA''], a bill of exchange or a promissory note (i.e. an “I owe you”) given for a consumer purchase must be clearly marked “Consumer Purchase” (s 190(1)), and where it is marked, the rights of an assignee of the bill or note are subject to any defence the purchaser would have against the vendor (s 191). Where it is not marked, it is void except in the hands of a holder in due course without notice (s 190(2)). The purpose of Part V is to codify the rule in [https://www.canlii.org/en/on/onca/doc/1962/1962canlii124/1962canlii124.html?resultIndex=1 ''Federal Discount Corp v St Pierre'' (1962), 32 DLR (2d) 86.]
-Part V does not cover private sales (where the seller is not engaged in the business of selling the goods in question), or sales to small businesses or corporations of items to be used in their business. Nor does it cover a purchaser’s loan (i.e. a loan from a lender to a person to enable that person to buy goods and/or services from a seller), subject to s 189(3) below.
+{{LSLAP Manual Navbox|type=chapters1-7}}
-A consumer bill is defined in s 189(1), and a consumer note is defined in s 189(2). A '''consumer bill''' or note is conclusively presumed if (s 189(3)):
-# The consideration for its issue was the lending of money, etc. by a person other than a seller, to enable the purchaser to make a consumer purchase; and
-# The seller and the person who lent the money, etc. were, at the time the bill or note was issued, not dealing with each other at arm’s length within the meaning of the ''Income Tax Act''.
-If an instrument meets the definition of a consumer note, any defence that the consumer would have for an action against them by the seller would also be available against subsequent noteholders (the seller sells a good to the consumer and, in exchange, receives a note from the consumer, which is like an “I owe you” or a promise to be paid back). Therefore, if the consumer does not get what they have paid for, the consumer may not be required to pay the loan back when pressed for payment by the lender’s assignee. Also, if the seller does not fulfil obligations under a warranty, the consumer will be able to resist payment (''Canadian Imperial Bank of Commerce v Geldart'', [1985] BCJ No 1973 and ''Canadian Imperial Bank of Commerce v Kabatoff'', [1986] BCJ No 942).
-{{REVIEWED LSLAP | date= August 8, 2021}}
-{{LSLAP Manual Navbox|type=chapters8-14}}