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Concern over Canadian civil liberties
By Hempology | September 6, 2007
Globe and Mail, CN
03 Sep 2007
THE UNFAIRNESS OF THE FORFEITURE LAW
Over the past four years, police in Ontario have seized $3.6-million and frozen another $11.5-million in assets under the province’s civil forfeiture law. Michael Bryant, the provincial Attorney-General, is proud that this has happened under his government. He shouldn’t be.
The notion of civil forfeiture, which is used to go after property and funds directly tied to criminal activity, has a certain populist
appeal. In Ontario, legislation brought in by the previous Conservative government allows civil courts to freeze, take possession of and forfeit to the Crown assets acquired through or likely to be used for criminal activity. The assets may then be distributed to individuals or communities victimized by crime.
It sounds like a win-win – criminals losing their assets while their victims are compensated for their hardship. But in a justice system that revolves around presumed innocence, civil forfeiture changes the rules. It enables the Crown to take suspected criminals to a civil court when the evidence is not strong enough to hold up in a criminal one. There, the Crown doesn’t need to prove their guilt beyond a reasonable doubt; it needs only to establish its case on a balance of probabilities. Even before it achieves that minimal standard, the province is able to freeze property until the court date, potentially bankrupting individuals before demonstrating that the assets it has seized were ill-gotten.
Take the case of Robin Chatterjee, sure to give pause to anyone concerned with civil liberties. In 2003, Mr. Chatterjee was stopped by police while driving a car missing its front licence plate. It turned out he had breached bail conditions. Police searched his car and found $29,020 in cash along with materials commonly used in marijuana grow-ops. What they did not find was any marijuana, meaning there were no grounds on which to lay criminal charges. So instead, the provincial Attorney-General took away the car’s contents – Mr. Chatterjee’s property – under the civil forfeiture law.
Jim Flaherty, who introduced the law in question when he was Ontario’s attorney-general, described it at the time as an “act first, ask questions later” approach. But the provincial Liberals, eager to boost their law-and-order credentials, have been doing much more acting than their predecessors. “We’ve sought to use [the powers] in ways that were consistent with the legislation, but might not have been in Flaherty’s mind when they introduced it,” Mr. Bryant boasted to the Toronto Star last week in regard to a government report that said 170 forfeiture cases have been launched in the past four years. “When we came into office, from my perspective it seemed as if the bill hadn’t really been used much at all.”
Better it should have stayed that way. Seizing the proceeds of crime is acceptable, and redistributing it to victims or victimized communities is noble. But that was already possible before Mr. Flaherty’s law came into effect – provided guilt had been proven in a criminal court. The difference is that now the system has been turned upside down by reversing the burden of proof such that the onus is on the accused to prove that they are not guilty.
Following Ontario’s lead, five other provinces have introduced similar legislation. Even if they are not quite as gung-ho as Mr. Bryant, this is a major blow to Canadians’ civil liberties and property rights. When cases are not strong enough, the Crown should either abandon them or continue to build them. It shouldn’t do an end run around the criminal justice system.
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