2009 Karen Selick
An edited version of this article first appeared in the September 3, 2009 issue of the Globe and Mail under the title "When property is seized, there's no such thing as a free lunch."
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Remedies Act Will Harm the Innocent and Corrupt the State
But Kenk’s criminal trial won’t begin for at least seven months. Meanwhile, keeners in Ontario’s Attorney General’s office have decided to skip the niceties of waiting for the trial, and have brought a separate court application commencing this week to confiscate not only the remaining 2,292 bicycles but also Kenk’s $700,000 building and two trucks. The government is using the Civil Remedies Act (CRA), enacted by Ontario in 2001.
Why not wait until Kenk is convicted? Simple. The provincial law makes it much easier than the federal law for the government to confiscate a suspect’s property. Under the Criminal Code (federal), the suspect must first be convicted of a crime, which requires proof beyond a reasonable doubt—at least 90 percent certainty, one might say. Under the CRA (provincial), no conviction is necessary. The province need only prove that the property is proceeds of crime on the balance of probabilities—a 51 percent test.
CRA applications can be difficult for accused people to defend against, since the money they would use to hire lawyers is often the very property the government is trying to confiscate. Furthermore, since CRA proceedings masquerade as civil rather than criminal proceedings, defendants often can’t get Legal Aid.
Political rhetoric from 2001 shows that the ease of grabbing assets was one of the prime motivating factors behind the adoption of the CRA. The United States had enthusiastically embraced civil asset forfeiture decades earlier. Its governments were raking in billions. Several states sent experts to Canadian law enforcement conferences encouraging us to follow suit. Ontario and the four western provinces perceived an apparently golden opportunity to increase provincial revenues without annoying the electorate by raising taxes.
But while civil asset forfeiture may seem like a free lunch for government, there’s a hidden price to be paid by citizens.
First, although Igor Kenk may be guilty, there will inevitably be many innocent people whose property gets confiscated. Even criminal courts applying the 90-percent-plus standard of proof convict innocent people with shocking frequency. Milgaard, Morin, Marshall, Driskell, Dalton, Sophonow, Walsh, Parsons, Proulx—all were innocent Canadians wrongfully convicted of murder. If miscarriages of justice can occur so often in sensational, life-and-death cases that attract widespread public scrutiny, how many more mistakes can we expect in cases that involve only property, attract no publicity, demand only a 51-percent probability of guilt and in many cases won’t even be defended because the accused can’t afford lawyers?
A 51-percent standard of proof is acceptable in genuine civil actions involving two private parties who are both paying their own legal fees. However, in a court action that pits a private litigant against the entire might of the state—with its bottomless pit of tax money funding its legal battle—there is good reason to demand a higher standard.
Tens of thousands of asset confiscations occur annually in the U.S. One investigation found that in 80 percent of U.S. federal forfeiture cases, authorities never even bothered laying criminal charges—they just took the assets.
These abuses have spawned many attempts to reform U.S. laws. But suddenly a different problem rears its head. Police forces frequently receive a cut of whatever they seize. A 2001 study showed that “a substantial percentage” of the 1,400 American police forces surveyed had become “dependent” on confiscated assets as part of their budgets.
In effect, the state becomes addicted to snorting up the proceeds of crime. Instead of protecting citizens from crime, the state becomes like the criminals’ silent senior partner, sharing in the illicit profits. Its focus could easily shift from putting criminals behind bars to a “catch and release” policy that keeps the money flowing in.
The Supreme Court of Canada had an opportunity in April to put a halt to this corrupting legislation in a decision called Chatterjee. For reasons that remain utterly unpersuasive to me, the court chose to uphold the CRA as valid provincial legislation. I know other lawyers are equally baffled at the court’s failure to strike down this law as an obvious encroachment into the criminal law sphere, which Canada’s constitution assigns exclusively to the federal government.
The court said crime imposes costs on the province, and it would be “out of step with modern realities” for the province to bear those costs without being able to impose deterrents. But crime imposed costs on the province back in 1867 and in all 142 years of Canada’s existence. The constitution nevertheless assigned criminal law power to the feds.
The court will have other opportunities to review this ill-considered law as fresh outrageous cases work their way through the judicial system. Let’s hope the results will be different next time.
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September 3, 2009