Minnesota Gov. Mark Dayton recently signed a law that says the state government can only confiscate property if it obtains a criminal conviction or its equivalent, including a guilty plea. Before this change, only some crimes, such as prostitution and drunk driving, required a criminal conviction before the government could forfeit property.
The bill will shift the burden of proof back onto to the government to justify a forfeiture, rather than the individual.
In Canada, all evidence points to provincial authorities ramping up, not limiting, their seizure powers under existing civil forfeiture laws.
Before Minnesota's law was changed, owners who wanted their property returned had to prove it was not the instrument or proceeds of a crime. Also, being acquitted of the charge – often a drug charge – in criminal court did not affect the forfeiture case in civil court.
It is costly to hire a lawyer to fight a civil forfeiture case in Minnesota, as it is elsewhere. Litigation can cost more than what the property is actually worth, so in many cases, property owners do not contest the forfeiture.
There have been many reports of individuals who face abuses associated with the civil- or asset-forfeiture system. One oft-quoted case involved a motel owner in Massachusetts, where authorities attempted to seize the business because of crimes committed in rented rooms.
These problems also affect Canadian victims of civil forfeiture. In Canada, as well as the U.S. a conviction against any person is not required and the burden of proof is a balance of probabilities rather than the tougher criminal standard of beyond a reasonable doubt.
Civil forfeiture laws can seriously impact the property rights of individuals.
In early 2013, the Frontier Centre for Public Policy released its inaugural Canadian Property Rights Index. The Index measured property rights protection across eight different indicators. Civil forfeiture was one of the markers. Research indicates that eight provinces have adopted civil forfeiture regimes. Thankfully, no territories have adopted them so far.
There are many examples of provinces in Canada using the law's provisions to seize property without any conviction.
In 2010, Manitoba filed a civil claim against a Winnipeg man, saying his home was used as an instrument that allowed him to allegedly sexually assault a pre-teen female. Thus, the province attempted to seize the home of the accused sex predator, but at the time he had not been convicted of any crimes. Although he later pleaded guilty to some charges, the government was prepared to seize his home under the province's Criminal Property and Forfeiture Act without any conviction.
Modern civil forfeiture originated in the United States in the 1970s and 1980s and has proliferated in countries that follow the common law. Originally intended to target organized crimes, the laws have been used against Canadians who are not involved with criminal groups.
Some citizens also face seizure under questionable circumstances. In British Columbia recently, that province's high court dismissed the government's appeal involving a government seizure of the home of David Lloydsmith. Police entered Lloydsmith's home and found marijuana plants in his basement. The courts, however, found that Lloydsmith's Charter rights were violated as the RCMP officers entered without a warrant.
Innocent third parties are also victimized by these laws.
Elizabeth Thomson, a 74-year old grandmother, watched as Alberta's government placed a restraining order on her 1,200-square-foot condo. The government alleged that Ms. Thomson's son had used the place as a base for his online company that defrauded the public. It was revealed months later, however, that Ms. Thomson's son had used the address without her knowledge.
It is high time that these powers of civil forfeiture in Canada are reined in. To do that, provinces need to look to Minnesota for ways to curb these abuses.
Joseph Quesnel is a policy analyst with the Frontier Centre for Public Policy, where he writes mainly on Aboriginal and property rights issues. He is the lead researcher on the Frontier Centre's inaugural Canadian Property Rights Index. www.fcpp.org