© 2000 Karen Selick
Ontario Wants to Put Grab on Property Rights
An edited version of this article first appeared in the December 7, 2000 issue of The National Post.  If you wish to reproduce this article, click here for copyright info.


Ontario Wants to Put Grab on Property Rights

James Flaherty, Ontario's Attorney-General, yesterday introduced legislation allowing police officers to seize assets, without notice and without laying charges, from persons suspected of organized criminal activity. Cash, vehicles, boats, houses or anything else an officer suspects might be proceeds of crime will be subject to confiscation.

This appears to be the latest in a series of new measures designed to demonstrate how tough Ontario Tories are on law-and-order issues. However, citizens have a right to demand respect for the law, not only from common criminals but also from those who govern us. Sadly, Mr. Flaherty's proposal lacks this respect in several ways.

First, it deliberately encroaches on the field of criminal law, an area that Canada's constitution assigns to the federal government. Ontario apparently believes it can get around this problem by labelling its scheme a "civil" (as opposed to a "criminal") asset forfeiture plan.

But this leads directly to the proposal's second mockery of the law: its reduced standard of proof. In criminal cases, guilt must be proven beyond a reasonable doubt. A civil forfeiture law will require proof only on the balance of probabilities. The result could well be that individuals acquitted of a criminal offence under federal law will nevertheless forfeit their property to the Ontario government. Indeed, it could affect people who are ultimately never charged criminally.

The third departure from time-honoured legal tradition lies in the proposal's reverse onus. Under criminal law, a person is presumed innocent until proven guilty. Under this proposal, there would be a virtual presumption of guilt. Possession, as the old saying goes, is nine-tenths of the law. The property owner would have to prove himself innocent to get his property back.

In musing about this plan in May, Mr. Flaherty made it abundantly clear he intends to adopt an "act first, ask questions later" approach: "You go in quickly without notice, grab the assets, and then we can have a discussion in court about whether the assets were purchased with dollars from the drug trade or dollars from smuggling people into Canada or dollars from prostitution."

He called this the "sophisticated approach." I suppose that's one way to describe it. When you've confiscated the assets your opponent will need in order to mount a legal defence, then tell him flippantly, "See you in court," you certainly appear to have covered all your bases.

The Tory proposal, released in a report last week, strongly resembles the approach taken in the United States, where civil asset forfeiture laws have come into vogue over the past two decades. At a Toronto conference in August, U.S. and European experts on asset seizure gathered to exchange tips. Sources in Mr. Flaherty's office say the conference proved forfeiture "works great."

Of course, working great depends on your goals. Asset forfeiture may indeed work well if the goal is to divert great gobs of tainted money from the coffers of organized crime into the coffers of the state. However, if any subordinate goals also have to be met -- little things such as protecting the rights of the innocent, or preventing the transformation of a free country into a police state -- then asset forfeiture laws may not work so well.

In fact, for everyone except the government departments and police forces that have been raking in billions of dollars annually, the U.S. experience with asset forfeiture has been one long nightmare. It has seen the wrongful confiscation of property from vast numbers of innocent people who can't afford the legal fees to seek the return of their assets, the deaths of innocent people in seizure raids, the diversion of police resources away from non-gang-related crimes that don't produce financial rewards for the police, and the corruption of police officers.

Jarret B. Wollstein, associate editor of The Financial Privacy Report, reported as far back as 1993 that 5,000 seizures of cash, cars, homes, jewellery, bank accounts and businesses occurred in the U.S. every week. In a study by the Pittsburgh Press, 80% of those whose property was seized by the federal government were never charged with a crime.

Drug-sniffing dogs have routinely been used to justify the confiscation of cash from travellers at airports or from motorists stopped on U.S. highways for minor traffic violations. Yet the dogs' reaction is far from conclusive evidence of wrongdoing. Several studies have shown that between 80% and 96% of all the bills in circulation in the United States test positive for cocaine residue.

Malibu, Calif. multi-millionaire Donald Scott, 61, was shot and killed when police raided his ranch, purportedly looking for marijuana. They found none. District attorney Michael Bradbury concluded that a "primary purpose of the raid was a land grab by the [Los Angeles County] Sheriff's Department." Officers had been told the US$1.1-million property could be seized if marijuana were found.

Robert Sobel, a former Los Angeles County sheriff's sergeant convicted in a corruption scandal, spilled the beans on how asset forfeiture laws affected his department. "My team seized about US$10-million to US$15-million, and none of it was straight," he said. "We were told, basically, if you want cars, you should go out and seize them. So we would ..." Officers planted drugs, lied and falsified reports to justify their property seizures. Some of the forfeiture proceeds went directly into officers' pockets.

Theft by rogue officers aside, the wisdom of giving police departments a financial stake in seizing private property is questionable. Gary Schons, former California deputy attorney-general, said: "Much like a drug addict becomes addicted to drugs, law enforcement agencies have become dependent on asset forfeitures. They have to have it."

The Ontario government may think it can avoid this problem by channelling alleged crime proceeds to a central fund, instead of following the U.S. practice of rewarding the agencies that make the seizures with a percentage of the take. However, Canadian police departments are well aware of how things have been working in the United States, and they've made it clear they want the same.

A 1993 Canadian Press report cited an Edmonton police superintendent warning that "Edmonton police will do fewer high-level drug investigations unless they get a cut of the money they seize ..."

There are now more than 140 civil asset forfeiture provisions in U.S. federal law alone. Thirty-one states have also enacted such laws. Congressman Henry Hyde (R-Illinois), chairman of the House Judiciary Committee, wrote a 1995 book, Forfeiting Our Property Rights in which he called asset forfeiture laws "terribly unjust" and "wrong."

"It must be stopped," said Mr. Hyde, whose campaign for statutory reform began more than seven years ago. After vehement opposition from the U.S. Justice Department and police organizations, a feeble reform bill was passed in April, 2000. U.S. civil liberties lawyers say it's too watered-down to help much.

If this is the situation in the U.S., where property rights are enshrined in the constitution, we can only expect the abuses to be worse in Canada, where we have no such constitutional protection.

Conspicuously absent from the report Mr. Flaherty released last week (Lessons Learned -- A Summary Report on Ontario's Organized Crime Summit) is even a shred of evidence that civil asset forfeiture laws have anywhere reduced the volume of organized criminal activity. On the contrary, evidence from other sources indicates the illegal drug business has grown almost unabated in the United States since these laws took effect.

In a paper produced for the Law Commission of Canada in April, 1999, Professors Margaret E. Beare and R.T. Naylor of York University's Nathanson Centre for the Study of Organized Crime and Corruption concluded: "Although the entire notion of controlling crime by taking away the capital and the motivation is superficially appealing, there is no proof in logic or in practice that it actually works. There is, however, ample proof that it can pose a threat to civil liberties and civilian control over police forces."

If Mr. Flaherty proceeds with his plan to introduce civil asset forfeiture, Ontarians should stop worrying about what illegal drugs our welfare recipients are using and start worrying about what mind-destroying substance our Attorney-General has been smoking. 



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January 31, 2001