Home Economic Liberty Civil Forfeiture When the state takes your stuff

When the state takes your stuff

By | National Post on Mar 08 2016

From Economic Liberty, Civil Forfeiture, Private Property

We are getting to the point where the words “civil forfeiture” set off alarm bells with more and more Canadians. And that is a good thing because current provincial civil forfeiture laws pose a real threat to our rights: they allow provincial governments to seize property not only from criminals, but also from people who have never been charged with, or even suspected of, a crime.

That puts all Canadians at risk. Not just the drug dealers or organized crime lords who were the original targets of civil forfeiture legislation; innocent people just going about their business are vulnerable too.

All the government has to show is that the property at issue was used by someone (anyone) as “an instrument of crime,” or was “the proceeds of crime” and the government may take that property from its rightful owner with no compensation. That property could be a house or a car or a beloved ancient coin collection that has been assembled with painstaking care over a series of generations. It could also be a pile of cash.

It’s habitually assumed that the proceeds from civil forfeiture seizures and sales go to compensate victims. But that’s rarely the case. Far more often, the funds are used to run the civil forfeiture programs themselves or are granted back to law enforcement agencies. Sometimes large amounts of money sit idle and are simply carried forward from year to year.

 

When money collected through civil forfeiture is awarded back to law enforcement, a particularly troubling situation occurs. The very authorities that hold our liberty in their hands suddenly have a strong incentive to err on the side of forfeiture, and ultimately to actively seek out expensive property to forfeit for the purpose of raising funds, instead of to deter crime or make victims whole.

It’s good that the Canadian Constitution Foundation (CCF), which I run, helps innocent victims of forfeiture abuse challenge these actions in court. But this is a problem that the broader public must understand as well in order to protect all our rights.

In Canada, there are civil forfeiture laws in place in eight provinces. All of these laws have the potential to empower government to take private property from innocent people, but in both structure and practice, some of them are worse than others.

Ontario was the first province to pass a civil forfeiture law, and it has since shown itself to be particularly prone to seeking forfeiture based on the merest suspicion of a violation of the law, rather than a crime that can be proven beyond a reasonable doubt. The Ontario law gives judges little leeway to adapt a forfeiture order to fit the particular circumstances.

At least in Alberta, courts have some discretion to craft forfeiture orders that are proportionate and satisfy the objectives of deterring illegal acts and compensating victims. So there’s less likelihood that an innocent party will lose a huge asset— for example, the entire building he’s been renting out to tenants — because of one other person’s misdeeds. That’s better than nothing.

But we still see provinces such as British Columbia going after fat financial targets with values far in excess of what would be a proportionate penalty for the alleged crime in question.

Our view at the CCF is that civil forfeiture should be an option for the government only if a property owner has been found guilty of a provincial offence. And we recommend that each provincial civil forfeiture office be required to provide a full and accurate annual report detailing the revenues that it has raised and the compensation that it has disbursed.

My colleagues and I were dumbfounded when we sent a freedom of information request to Alberta’s civil forfeiture office, asking for records of how much forfeiture money they have distributed to individual victims — and got a reply informing us that the office does not “maintain statistics” on that. We didn’t know if the answer meant the amount of money returned to victims was zero, or if the answer meant the office really didn’t keep records on where its forfeiture money had gone.

Your guess is as good as mine. Both are disturbing. But it’s an answer the public should hear.

That’s why CCF has, with the help of our friends at the Institute for Liberal Studies, just released a new report that takes a critical and comparative look at Canada’s provincial civil forfeiture laws. And we think you’ll be surprised, if not appalled, at the injustices it uncovers. So please visit theccf.ca/civilforfeiture and read the full report.

Did you know that civil forfeiture laws allow the government to treat innocent property owners more harshly than convicted criminals? Are you starting to wonder how your province stacks up?

You deserve that information. Help us spread the word.

(Image under CC 2.0 by the Province of British Columbia)