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Ontario’s civil forfeiture racket

By | on Aug 22 2014

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In what is just the latest example of the havoc that civil forfeiture laws wreak on property rights, the Ontario government has gone after the house of an Oshawa couple even though all criminal charges against the pair were dropped.

As reported by The Toronto Star, when police raided the home of Denis and Margaret Deneault in August 2006, they found illegal drugs, including hashish, cocaine and ecstasy. The Deneaults were charged, and the police bragged about their conquest in multiple press releases. But here’s the crucial point: The Denaults were never found guilty of any drug (or other) crimes related to the police’s storming of their house. In 2009, the government abandoned its prosecution of the couple for unknown reasons (this time with no crowing press releases). And that should have been the end of the matter.

But it wasn’t. The province couldn’t help itself from jumping in and seeking to grab some easy cash from the couple under Ontario’s Civil Remedies Act, which allows government to seize property deemed to be a proceed or instrument of crime, even without any conviction or charges.

The sad thing is that a judge agreed with the province, and ordered the Deneaults to fork over $55,792 (60% of the value of their house) to the province.

As far as due process goes, such seizures are a serious threat, especially since the province doesn’t have to provide targeted owners with an attorney as it would in a criminal prosecution. An owner who was completely innocent of any wrongdoing but unable to afford a lawyer would have no way to defend himself against the seizure of his house (or car, or equipment, or cash etc.). Denis Deneault told the Star: “You can fight it, but the lawyers will cost you more than [the government is] asking for.”

There is no question that we want criminals punished. But we don’t want Ontario seizing millions of dollars from its citizens without adequate proof that those whose property is being taken really have broken the law – and that the price being exacted is proportionate to what they’ve done. That’s what our Constitution demands. Yet, as cases such as this one illustrate, the government is not being required to meet those standards and need only convince a judge of wrongdoing on a “balance of probabilities” standard. So even if a court has reasonable doubts about an owner’s guilt – doubts that would demand the court toss any criminal charges against him – it can still authorize a seizure of cash or goods of huge value, including the owner’s home.

The justification is sometimes offered that Ontario’s use of civil forfeiture is worth it because the province distributes the proceeds to victims of crime. What these defenders of civil forfeiture usually fail to mention is that the province also distributes the proceeds to itself – or rather to the very law enforcement agencies that are tasked with rounding up future forfeiture targets. As of 2007, Ontario had provided more than $900,000 of seized forfeiture money to the police (close to the same amount it had provided to victims). Clearly, this creates unhealthy incentives for law enforcement to “police for profit,” as the U.S. public interest law firm the Institute for Justice has put it.

But perhaps the most frustrating part of all, and the part that most offends Canadian constitutional protections, is made manifest when civil forfeiture is used to exact a price from an offender that is out of all reasonable proportion to his crime. That’s what the Canadian Constitution Foundation is fighting in the case of former gunsmith Bruce Montague. He purposely and publicly let his gun and business licenses expire to protest changes in Canada’s firearms laws. He was charged, found guilty and served six months in jail for this crime. Yet, for Ontario, that wasn’t enough. The province is seeking to seize everything Mr. Montague has left: his gun collection (valued at approximately $100,000) and the family home he shares with his wife Donna, which he built himself. And the government says it doesn’t even have to prove its case beyond a reasonable doubt because this is just a civil matter, and not a criminal penalty.

Not only is this treatment of Mr. Montague unfair — unconscionable, even — it’s unconstitutional. And stories such as the Deneaults’ are a reminder that this backward legal process is being used on a regular basis, even in cases where the government doesn’t have enough proof to make a criminal charge stick.

It’s time to expose these civil forfeiture practices for what they are: government actions that treat citizens like cash cows, while violating their Charter rights.

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