Civil forfeiture laws in eight Canadian provinces began with the best of intentions. The idea was that organized crime and major drug dealers would face not just criminal sanctions, but also the loss of the properties and vehicles used to run their criminal enterprises.
But far too often, as investigations by the Globe's British Columbia bureau have shown, these laws are now being used to punish people who don't look like organized criminals, or criminals at all. In some provinces, civil forfeiture often looks like a cash grab rather than an act of justice. Sometimes, the person whose property is seized by the state has not even been found guilty of anything.
The Globe has reported on cases in B.C. where people not convicted of a crime had property seized, and other instances where someone not even charged has had property confiscated. For example, landlords have had property taken because of offences committed by tenants. All of which goes against a fundamental principle of our justice system: the right to be presumed innocent, and treated as such, until found guilty by a court of law.
The Canadian Constitution Foundation recently published a lucid report on the issue, setting out sound principles for bringing civil forfeiture laws and practices back into line with Canada's constitutional values.
To their credit, Newfoundland and Labrador and Prince Edward Island are the only provinces not to have enacted civil forfeiture laws. In contrast, B.C. and Ontario are aggressive users of the practice.
The CCF's report sets out some reasonable criteria for how and when these laws can be fairly used. The person subject to the civil forfeiture should be the actual offender, not just a bystander accidentally related to the crime. The CCF argues that the offender need only be guilty of a provincial offence, not one under the Criminal Code. This sets the bar too low, as many provincial offences are fairly minor. But the CCF is right that judges in civil-forfeiture cases must have the discretion to set a penalty in proportion to the offence. And no offence, no forfeiture.
Among the CCF's best proposals is that all provincial auditors-general should undertake studies of civil forfeiture in their provinces – the better to limit the practice, and end its abuses.