Civil-forfeiture programs have trampled on the rights of Canadians, seized property from innocent people and are neither transparent nor accountable, a new report says.
But despite the criticism – the report gave both British Columbia and Ontario's civil-forfeiture regimes a grade of "F" – Ottawa says it does not plan to look into the issue because such laws are a provincial matter.
Many of the concerns raised in the report coincide with those highlighted by The Globe and Mail in its civil-forfeiture investigation. The Globe has reported extensively on British Columbia's Civil Forfeiture Office in particular and found it has been extremely aggressive in its attempts to seize homes, vehicles and cash. The office can seize property even when a person has not been convicted or charged and critics have called it a cash cow.
Marni Soupcoff, executive director of the Canadian Constitution Foundation, a Calgary-based non-profit that aims to protect constitutional freedoms, said its report shows innocent people have been hurt by the use of civil forfeiture.
"The part that I don't think people currently know is you could lose your property in a process that treats you more harshly than a criminal gets treated, even if you're not suspected of having done anything wrong," she said in an interview Monday.
The 58-page report examines the rise of civil-forfeiture programs in Canada, starting with their inception in Ontario in the early 2000s and leading to today, when eight provinces have such offices.
The report says the offices were originally intended to deter crime and compensate victims but "rarely accomplish these stated goals." It said revenue generated through successful forfeiture proceedings is instead more likely to be returned to the provincial government involved, or to law enforcement agencies.
The report went on to say that because civil-forfeiture cases are tried in civil court, with a lower standard of proof than criminal court, the provinces can "choose to initiate civil-forfeiture proceedings against individuals in circumstances where there is not enough evidence to merit criminal charges, let alone result in a conviction."
The Canadian Constitution Foundation also accused civil-forfeiture programs of a lack of transparency. It said none of the eight offices is required to release information on how much money has been collected and paid out. It said none of the offices has been reviewed by a provincial auditor-general and, when faced with criticism, the offices have sometimes tried to shield themselves by pointing to grants given to charities – a tactic referred to as a "charity wash."
The foundation made five recommendations in all, including calls for each office to report its finances annually. It also said civil forfeiture should only be used after a property owner has been convicted of a provincial offence.
Micheal Vonn, policy director at the B.C. Civil Liberties Association, which has long raised concerns about the use of civil forfeiture in Canada, said the new report is "most welcome."
"The most important thing that they really highlight, that I think is the part that virtually everyone in the public can understand, is that part of the danger of this is that there's no accountability," she said in an interview.
Joshua Krane, a Toronto-based lawyer at Blake, Cassels and Graydon LLP with experience in civil-forfeiture cases, said the report touches on many of the key concerns that have arisen.
"I think momentum is building, in the legal community especially, where there was very little momentum four or five years ago, and that's a positive," he said in an interview.
B.C. Public Safety Minister Mike Morris wrote in a statement that he is still reviewing the foundation's report. However, he defended B.C.'s civil-forfeiture regime as "hugely successful." He said the office is doing what it was designed to do – "go after the ill-gotten gains and proceeds of unlawful activity."
Mr. Morris said the program is continuously reviewed and the government is always watching for unintended consequences. The Civil Forfeiture Office receives referrals from police and Mr. Morris said it takes cases after assessing the public interest, the interests of justice and fiscal considerations, among other things.
Since B.C.'s Civil Forfeiture Office opened in 2006, it has seized more than $63-million in property.
The Ontario government did not provide a response to a request for comment.
A spokesperson for the federal Department of Justice in an e-mail wrote "civil-forfeiture laws are a provincial responsibility so questions about how the current laws are being administered should be referred to those jurisdictions."
Mr. Krane, however, said there is a role for Ottawa to play.
"I do think that Parliament does have the jurisdiction and does have the responsibility to address forfeiture, which ultimately is a criminal matter," he said. "The fact that the forfeiture laws in the Criminal Code are limited to certain situations doesn't necessarily mean that the provinces should have the authority to fill that gap."
A spokesperson for the B.C. auditor-general said there weren't any immediate plans to review the province's civil-forfeiture office; there are also no such plans in Ontario.