Bicycle-store owner Igor Kenk may or may not eventually be found guilty of theft. Certainly, the 2,865 used bicycles seized by police in a high-profile raid on his Toronto premises last year need some explaining, especially after 573 of them were returned to people who proved rightful ownership. But Mr. Kenk's criminal trial on 100 criminal counts related to stolen bicycles and drugs won't begin for at least six months.
Meanwhile, the Ontario Attorney-General's office has decided to skip the niceties of waiting for the trial. This week, they brought a separate court application to confiscate not only the remaining 2,292 bicycles but also Mr. Kenk's $700,000 shop and two trucks. The government is proceeding under the Civil Remedies Act, which the province enacted in 2001.
Why not wait and see if there's a conviction? Simple. The provincial law makes it much easier than federal law to confiscate a suspect's property. Under the federal Criminal Code, the suspect must first be convicted of a crime, which requires proof beyond a reasonable doubt – at least 90-per-cent certainty, one might say. Under the provincial CRA, no conviction is necessary. The province need only prove that the property is proceeds of crime on the balance of probabilities – a 51-per-cent 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 are often unable to get Legal Aid.
The political rhetoric from 2001 shows that the ease of grabbing assets was one of the prime motivating factors behind the CRA's adoption. Civil asset forfeiture had been embraced decades earlier in the United States, where governments were raking in billions. Experts at law-enforcement conferences encouraged Canada to follow suit. Ontario and the four Western provinces saw an apparently golden opportunity to increase revenues without raising taxes.
But while civil asset forfeiture may seem like a free lunch for government, citizens pay a hidden price.
First, there will inevitably be many innocent people whose property gets confiscated. Even criminal courts applying the 90-per-cent standard convict innocent people with shocking frequency. David Milgaard, Guy Paul Morin, Donald Marshall, James Driskell, Ronald Dalton, Thomas Sophonow, Erin Walsh, Gregory Parsons, Benoît Proulx – all innocent Canadians wrongfully convicted of murder. If miscarriages of justice can occur so often in sensational cases that attract widespread public scrutiny, how many more mistakes can we expect in quiet cases that involve only property, demand a much lower probability of guilt and often aren't even defended because the accused can't afford lawyers?
In the United States, tens of thousands of confiscations occur annually. One investigation found that in 80 per cent of federal forfeiture cases, authorities never even bothered laying criminal charges. Abuses have spawned many attempts at reform, but suddenly a different problem rears its head. U.S. police forces often receive a cut of whatever they seize. A 2001 study showed that a “substantial percentage” of the 1,400 U.S. police forces surveyed had become dependent on confiscated assets for part of their budgets. Instead of protecting citizens from crime, the state becomes a silent partner, sharing in the illicit profits.
In April, the Supreme Court of Canada had an opportunity to put a halt to this corrupting legislation in a decision known as 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 an obvious encroachment into the criminal law sphere, which the 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. The Constitution nevertheless assigned criminal law power to Ottawa.
The court will have other opportunities to review this law as fresh cases work their way through the judicial system. Next time, let's hope the results are different.
Karen Selick is litigation director for the Canadian Constitution Foundation.
