CAROLYN FISCHER

Presumed Guilty

The province can now seize your property before you’re convicted of a crime and keep it even if you’re acquitted.

By Paula Simons

Imagine living in a looking-glass world in which the Crown could seize your money and property before you were ever found guilty of any crime. Imagine living where the Crown could keep your house or car or cash, even if a criminal court found you not guilty. You don’t have to stretch your imagination very far. We’ve already slipped down the rabbit hole.

Once upon a time in Alberta, people were innocent until proven guilty. No matter how heinous their alleged crimes, no matter how certain we were of their guilt, we didn’t punish people until—and unless—they were found guilty beyond a reasonable doubt.

That all changed in the autumn of 2008, when Alberta enacted its coyly named Victims Restitution and Compensation Payment Act (VRCPA). Under its terms, the province can seize any assets, property or money that it believes may be proceeds of crime, as well as any property or equipment that it believes was used to further or commit a crime.

Suppose police pull over a driver whose car smells of marijuana and who’s carrying a large wad of cash and a couple of grow lamps. Suppose they go to the house of someone they suspect of running an online child pornography business. The Crown can seize that money and property even before the accused is convicted of any crime, and even if no charges are laid. If the alleged criminal is found “not guilty”—or if the charges are dropped—Alberta Justice can keep the seized assets anyway.

A civil forfeiture law may sound appealingly practical. After all, it was proclaimed as law in Alberta with the unanimous consent of all parties in the Legislature. Despite falling crime rates, including falling murder rates, a series of high-profile public slayings in Alberta have stoked voter fears. No politician dares to look soft on crime in a climate of high anxiety.

And there’s no denying the visceral appeal of being able to seize booty right from the bad guys, to stop criminal operations without going through a lengthy criminal trial. If we can teach gangsters and fraudsters that crime doesn’t pay—if we can seize their cars and cottages and computers and turn their ill-gotten gains directly over to worthy and pitiable crime victims—why not do it? Why not adopt the Red Queen’s rule—“Sentence first, verdict afterwards”?

You don’t have to look very hard to discover “why not.” Linda McKay-Panos is executive director of the Alberta Civil Liberties Research Institute at the University of Calgary, and she believes that civil forfeiture law “just gives the state too much power over people’s property. It’s too broad,” she says. “To me, it demonstrates a troubling trend, the state using civil law remedies to circumvent the criminal law in order to get something it otherwise couldn’t… It’s silly. It’s not logical. And it presents enormous practical difficulties. I’m particularly worried about its impact on innocent third parties.”

Human rights lawyer Janet Keeping, president of the Sheldon Chumir Foundation for Ethics in Leadership and co-founder of the Calgary Civil Liberties Association, shares these concerns. Not only, she says, is there little evidence from other jurisdictions that civil forfeiture laws reduce crime, but Keeping says the law violates the province’s own laws, which guarantee all Albertans “enjoyment of property.”

“This law so obviously violates the Alberta Bill of Rights,” she says. “And it doesn’t do that much good anyway.”

Once upon a time in Alberta, people were innocent until proven guilty. That all changed in the autumn of 2008.

Civil forfeiture isn’t a uniquely Albertan initiative. Nor is it an Ed Stelmach or Alison Redford initiative—though it was only enacted in 2008, the law was initially formulated during the Ralph Klein era. Both British Columbia and Ontario have had civil forfeiture legislation since 2001. Ontario and BC borrowed the tactic from the US, where it had already become a standard strategy in the never-ending “war on drugs.”

Alberta’s forfeiture law doesn’t let police and Crown prosecutors seize property from innocent Albertans willy-nilly. We haven’t completely thrown due process out the window. The onus is still on Alberta Justice to go before a judge in civil court to establish that the seized or restrained property in question is “an instrument of illegal activity.”

But the bar in a civil case, in which private plaintiffs sue one another, is set lower than in a criminal trial. In a criminal court, which deals with breaches of the Criminal Code (offences against the Crown), an accused must be found guilty beyond a reasonable doubt. In a civil hearing, the test is very different. The Crown need only prove that there’s a simple preponderance of evidence on its side—50 per cent plus one, if you will.

Even when the Crown fails to gain a criminal conviction at trial, whether through lack of evidence, prosecutor error or because of police misconduct, it can still get a second bite at the apple. If the Crown fails to make its criminal case, it can still win a civil case. It’s not double jeopardy—more like a consolation round. 

The constitutionality of civil forfeiture legislation was upheld by Canada’s Supreme Court, which ruled in April 2009 that Ontario’s Civil Remedies Act (CRA) did not violate the constitutional separation of powers, which gives the federal government the exclusive right to create and enforce criminal law. The test case, Chatterjee v. Ontario, involved the case of a young man, Robin Chatterjee, a Carleton University student who was pulled over by York regional police on March 27, 2003, because his car had no front licence plate. A police computer search showed that Chatterjee was in breach of an earlier bail order requiring him to stay in Ottawa, so the officers arrested him and searched his car. They discovered $29,020 in cash, as well as an exhaust fan, a light ballast and a light socket. According to police, all of the items smelled of marijuana—but no marijuana was found in the vehicle.

Civil forfeiture law may sound appealingly practical. And no politician dares to look soft on crime.

Chatterjee was never charged or convicted of any drug-related activity. Nonetheless, the Attorney General of Ontario brought a court application to seize the property and cash as instruments and proceeds of unlawful activity.

Chatterjee’s lawyers unsuccessfully challenged the constitutionality of the Ontario forfeiture legislation. At trial, says McKay-Panos, the Ontario Superior Court rather briefly dismissed arguments that Ontario’s law violated the Canadian Charter of Rights and Freedoms. The court held that the law did not violate section 7 of the Charter, which protects life, liberty and security of the person, section 8, which protects all Canadians from unreasonable search or seizure, or section 11, which guarantees that all Canadians are to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

McKay-Panos admits she’s perplexed by the ruling. “It would seem these are compelling concerns, in that the government is now able to use civil law remedies to purportedly control crime, even where the property owner is not guilty of a crime,” she says.

Chatterjee fared no better at the Supreme Court, where the justices upheld Ontario’s law by a vote of 7–0. The Supreme Court didn’t even look at the Charter issues, instead looking only at the question of whether the law violated the separation of powers. “The evident purposes of the Civil Remedies Act are to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime and to help compensate private individuals and public institutions for the costs of past crime,” reads the April 2009 judgment and its headnote. “The practical (and intended) effect is to take the profit out of crime and to deter its present and would-be perpetrators. These are valid provincial objects. Crime creates costs to victims and to the public that would otherwise fall on the provincial treasury, including health, policing resources, community stability and family welfare. It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot take legislative steps to suppress it.”

But just because the courts have found something to be “constitutional” doesn’t make it right—or even logical. “The Charter hasn’t been very helpful when it comes to property rights,” McKay-Panos says. “That doesn’t mean we shouldn’t have those rights.” 

Robin Chatterjee may not have been an angel. But was it reasonable for the province of Ontario to seize his money and goods without proof he’d committed a crime? Far from presuming him innocent, the Crown’s presumption was that circumstantial evidence made him guilty—not guilty enough for police to lay charges but guilty enough to take his stuff.

Karl Wilberg is the director of Alberta’s Civil Forfeiture Office. The Alberta government was an intervener in Chatterjee, with a keen interest in the outcome. To Wilberg, the rulings clear up any questions of whether Alberta’s own civil forfeiture act is constitutional. As Wilberg sees it, the province is like any other plaintiff in a civil trial. It’s simply asking the court to award monetary restitution, as anyone launching as civil tort might do.

Chatterjee is about cost recovery,” he says. “It’s about dollars and cents and compensating victims. Why can’t the province use civil procedures to address these costs?”

However, when two “civilian” plaintiffs go to court to sue each other, they’re on a level playing field. When the state uses all of its resources to “sue” a suspect, that same balance of power does not apply. As the Canadian Civil Liberties Association, another intervener in the Chatterjee case, put it: traditional civil remedies are proceedings “which permit one person who has been harmed by the acts of another to seek redress against the wrongdoer. Civil remedies are compensatory, not retributive, and are predicated on redressing the acts of one person which cause loss to another. A power of the state to vest property rights unto itself to denounce and deter prohibited acts is of an entirely different nature.” 

The problem isn’t just that the state is assailing property rights as an end run around the criminal process. It’s that property doesn’t commit crimes.

If your ne’er-do-well son borrows the family vehicle to conduct a drug deal, or if your shiftless roommate uses your condo and your MacBook to run a child porn ring, you’re the one who may have to go to court and spend your money to argue that the state has no right to your car or condo or computer.

That’s what happened to Patricia Thomson, a 75-year-old Calgary great-grandmother and dental office manager. The province “restrained” her condo last summer, after alleging that Thomson’s son and his accomplices had listed Thomson’s home address as the corporate registered office and the bank mailing address in the course of perpetrating an online fraud, allegedly collecting $400,000 in deposits for the sale of non-existent vintage cars. Because Alberta’s act requires that the courts grant all such “restraining” orders ex parte—without consulting the affected party—Thomson couldn’t even attend the restraint hearing to plead her innocence.

Instead, Thomson, who swore an affidavit insisting she had no knowledge of the scheme, had to go to court to fight to keep her home, a process that required her to reveal many personal details about her life and her relationship with her son.

While Alberta’s law puts the onus on the Justice Minister to establish that the restrained property was actually an instrument of illegal activity, it puts the onus on the property owner to establish that he or she “has not been or would not have been involved in or associated with” the property, and “did not know and would not reasonably be expected to know that the restrained property was or was likely to be used in carrying out an illegal act.” (Emphases added.) 

In other words, it’s not merely enough to prove that you aren’t a criminal. If you somehow should have known that your car or computer or Quonset hut was likely to be used to commit an illegal act, your property could still be taken away. 

In February, a Calgary court quashed the restraining order against Patricia Thomson. Justice A. D. Macleod was scathing in his judgment, calling the Alberta’s civil forfeiture act “a serious intrusion” on property rights. “In effect, the Act permits the Crown to go on a fishing expedition with respect to its criminal investigation and demand information from the alleged wrongdoer’s mother which it would not otherwise be entitled to absent the provisions of this Act,” he wrote. “It became abundantly clear to me during the course of argument that this is exactly what was occurring in this case, and that, in itself, is an abuse of Thomson’s reasonable expectation of privacy.”

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As introduced, the Victims Restitution and Compensation Payment Act specifically denies people the right to recover their legal costs, even if the court rules in their favour. Justice Macleod pointedly awarded Thomson her costs, ruling that the province had so improperly restrained her property that it had not complied with its own act.

The Macleod ruling appears to have resonated. In March, Justice Minister Alison Redford introduced Bill 10, which makes key amendments to the Victims Restitution and Compensation Payment Act. The amendments allow people who’ve had their property improperly seized, such as Thomson, to recover costs from the Crown should they win in court. That’s a big improvement.

But in other ways, Bill 10 even makes a bad law even worse. It expands the range of victims who can recover the costs of crime to include municipalities, institutions and public bodies such as Alberta Health Services. This turns what was supposed to be a morally justifiable victim compensation program into a bald cash-grab by the state.

To Karl Wilberg, the restoration of Thomson’s property by Justice Macleod is proof Alberta’s civil forfeiture law worked even before the introduction of Bill 10—proof that the necessary checks and balances are in place. “I agree, there are concerns about civil liberties,” Wilberg says. “But we don’t put anyone in jail. We don’t give anyone a criminal record.” 

Still, if the province can seize your house, your farm or your money without waiting for any criminal conviction, if it doesn’t have to give your property back even if you’re acquitted, and if it can put you through months of anxiety and the humiliation of having to go to court to prove you’re not a criminal, these are meagre consolations.   

How well is Alberta’s Victims Restitution and Compensation Payment Act actually fulfilling its avowed purpose—to compensate victims or fund crime prevention programs?

As of the end of February, the Civil Forfeiture Office had applied for 119 orders to freeze or “restrain” property. So far, the office boasts a success rate of 96 per cent. As of February, the office had restrained $14.5-million worth of property, including 25 rural or residential properties, 64 vehicles and $1.5-million in cash.

That sounds quite impressive for a relatively new program. But those numbers count all property that’s been temporarily frozen by the court, not the property that’s been formally forfeited. As of the end of February, the province had effected forfeiture of just three pieces of real estate, 33 vehicles and $631,000. Only three victims had been directly compensated, for a total of $54,000. All three are victims of frauds—two of them, alleged victims of Thomson’s son and his associates. 

The rest of the money is sitting in a government trust account. Thus far, not one penny has been spent on either programs to help victims or prevent crime. Wilberg says there just hasn’t been enough money collected yet to fund ongoing programs or set up a system for groups to apply for funding.

It’s harder to know whether the new law is fighting crime. Wilberg says there’s only been one case so far in Alberta of someone who was subject to civil forfeiture committing a repeat offence. He also points to a recent study in the Review of Law and Economics by Edgardo Buscaglia of Columbia University, which tracked international levels of organized crime. Buscaglia’s analysis found that judicial confiscation of criminal assets was essential to fighting organized crime.

What is allegedly a morally justifiable victim compensation program is actually a bald cash-grab by the state.

“In the cases where criminal asset networks remain untouched, the data shows that criminal groups will simply face the higher expected punishments of its high-level members by reassigning their relatively untouched financial resources to expanding their rings’ [scope] and scale of corruption at higher levels and adding violence in order to protect themselves,” his analysis concluded.

But Buscaglia wasn’t talking about one-man grow-ops in Oyen or fraudulent used-car salesmen in Sherwood Park. He was analyzing the behaviour of Colombian drug cartels and Italian Mafiosi, not the likes of Robin Chatterjee or Patricia Thomson. Wilberg is quick to point out that his office auctioned off one forfeited car that came complete with bullet hole and bloodstains, and another with a secret compartment to hide a handgun. Yet in the main, given Alberta’s mostly small-time hoodlums and white-collar criminals, it’s as though Alberta imported a sledgehammer to squash an ant.

Lawmakers must always find the right balance when they weigh individual civil rights against the security needs of the community. But have we struck that right balance? Are our crime problems so dire, our society so dangerous, that we’re willing to forfeit our fundamental right to the presumption of innocence, our right to be safe from unreasonable seizure, in the name of maintaining public order?

More to the point—does the slow erosion of our civil rights make us any safer? Drug gang violence is a menace. But the root cause of that violence is the addiction that fuels the illicit drug trade. Seizing money from alleged dealers is reasonably simple. Dealing with the issues of mental illness, poverty, moral breakdown and social alienation that whet our culture’s appetite for drugs is far harder. Yet until we tackle demand, supply will always be there.

By all means, let’s seize the property and money of convicted criminals. Let’s use it to compensate victims and to fight crime with initiatives aimed at things like addiction treatment or social interventions to keep at-risk kids from turning to gang life in the first place. Why can’t we wait for trials and verdicts, though, to ensure that we’re taking property from the right people for the right reasons?

“Verdict first, sentence afterwards” served and protected us well for centuries. Before we upend legal logic in favour of some Mad Hatter’s tea party, let’s make sure we know what we’re sacrificing—and if the costs are worth the benefits. 

Paula Simons is a columnist with the Edmonton Journal and a five-time National Newspaper Award nominee.

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