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Ontario moves to seize bike-theft suspect's property

Igor Kenk's bike shop at 927 Queen St. West in Toronto.

Fred Lum/Fred Lum/The Globe and Mail

Accused bicycle thief Igor Kenk is still a long way from justice on dozens of criminal charges, but that isn't stopping the Ontario government from moving to take ownership of his bike repair shop, pickup trucks and 2,292 bicycles seized in police raids across west-end Toronto last summer.

On Monday, Mr. Kenk will be hauled into court in handcuffs to face a forfeiture hearing under the Civil Remedies Act, a controversial law that allows the province to seize and sell property deemed to be connected to crime, regardless of whether its owner has been criminally convicted or even charged. If government lawyers can link Mr. Kenk's property to the "large-scale organized bicycle theft ring and drug distribution network" police have accused him of operating, the province stands to rake in hundreds of thousands of dollars, court documents suggest, based on the $700,000 value Mr. Kenk placed on his shop site, on a trendy stretch of Queen Street West, last year.

Meanwhile, the central criminal case against Mr. Kenk, involving nearly 100 counts relating to stolen bicycles and drug trafficking, will not begin until a preliminary hearing next March to determine whether he should face trial. He has been in custody at the Don Jail since December.

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The prospect of Mr. Kenk, 50, losing his possessions to the state without a criminal finding of guilt could resurrect the controversy around forfeiture laws such as Ontario's, introduced in 2001 by the then Progressive Conservative government.

Under the law, victims of the crime in question can submit claims for compensation from the forfeited proceeds. The remainder sits in a fund from which the government gives grants to police organizations for victim-related programs, though the majority of funds forfeited so far remain in provincial coffers.

Forfeiture laws, now in force in eight provinces, survived a constitutional challenge at the Supreme Court of Canada this year.

Since forfeiture hearings are civil proceedings, Mr. Kenk is not entitled to legal aid to pay for a civil lawyer, and his criminal lawyer, Lon Rose, is unable to represent him.

He can apply to have his legal fees paid, at the legal aid rate, out of the property the government wants to confiscate, but "there are a lot of hurdles," said James Diamond, the Toronto lawyer who led the Supreme Court challenge.

Even if he could pay a lawyer under this scheme, "that is concerning," Mr. Diamond said, "because you are using the value of the seized item that people can claim is theirs, subject to the decision of the court, and before anybody has made a decision on that, you're already decreasing the value of that to pay for your lawyer."

Mr. Rose said he has been trying to get Mr. Kenk a civil lawyer, "but it's been very difficult" because of the uncertainty around payment. "Definitely he should have counsel."

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When asked whether the government thinks it is wise to sue someone who appears unable to obtain representation, Rosemary Parker, a spokeswoman for the Attorney-General's Ministry, said. "We are not privy to Mr. Kenk's legal arrangements."

With or without a lawyer, Mr. Kenk will be fending off an action underpinned by an extensive police investigation that unfolded, under intense media attention, over several weeks last summer. Details of the probe are sprinkled throughout court documents assembled for the civil case.

In an affidavit supporting the government's forfeiture application, Katherine Orlita, a legal assistant with the Attorney-General's Ministry, laid out information Toronto police provided:

On July 16, 2008, police watched a man cut the lock from a bicycle and then exchange the bike for cash from Mr. Kenk. The next day, police "received information from a confidential source relating to the network that Kenk used to obtain stolen bicycles and distribute controlled substances," leading to searches of three Kenk-related properties.

The source later told police "that Kenk would pay between $40 and $60 or a quantity of crack cocaine for the bicycles."

In all, 12 locations were searched, yielding 2,865 bicycles, eight kilograms of marijuana and more than two ounces of cocaine. Police returned 573 bicycles to their owners; the remaining 2,292 are in police storage.

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One of the court documents pegs the storage costs at $250,000 a year, but does not elaborate.

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