Pubdate: Fri, 2 Mar 2001 Source: Toronto Star (CN ON) Copyright: 2001 The Toronto Star Contact: One Yonge St., Toronto ON, M5E 1E6 Fax: (416) 869-4322 Website: http://www.thestar.com/ Forum: http://www.thestar.com/editorial/disc_board/ Author: Alan Borovoy Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture) CRIME BILL A TRAP FOR LAW ABIDING As The Bill Is Now Written, In Order To Seize Property, The Government Would Not Have To Prove Its Owner Had Committed A Crime A few years ago, a Toronto merchant faced monetary fines for violations of an Ontario holiday-closing law. Fair enough. But, if Ontario's current Bill 155 were to become law, a repeat performance could cost him his entire store. This could happen even though the government claims that Bill 155 is designed primarily for organized crime and even though that merchant was not accused of any involvement with organized crime. Bill 155 is a veritable ``bull in a china shop.'' The breach of any federal or provincial statute could trigger the forfeiture of property. The seriousness of the breach would not matter. It's significant that, in promoting the bill, the Ontario government has cited with approval the American experience with similar laws. Yet, the U.S. civil forfeiture statutes have mandated widespread attacks on the property of ordinary Americans. Indeed, an appellate court in that country declared that it was ``enormously troubled'' by what those statutes have made possible. Some role model. Another ``bullish'' feature of the Ontario bill is that, in order to make a seizure, the government would not have to prove that the property owner had committed a crime. It would simply have to prove that the property in question was probably acquired through a breach of the law. Not a very onerous burden. Even less - indeed, nothing at all - would be required for the government to start such a proceeding. While property owners would be entitled to dispute the government's claim, it is they, at that point, who would effectively need to prove their innocence. Moreover, resistance could be financially and emotionally expensive. Small wonder that so many Americans submitted to bad settlements rather than endure costly court fights. It's one thing for the state to go after property produced by certain crimes; it's another thing entirely - as the bill would also authorize - to target property that is simply used for such purposes. A few years ago, a Texas hotel was seized under a U.S. forfeiture law after patrons were accused of drug trafficking there. Although the American prosecutor admitted that he was not accusing the hotel owners of unlawful conduct, he claimed that the business gave ``tacit consent'' to the drug dealing. Under the Ontario bill, owners could suffer a similar fate simply for failing to notify the authorities when they knew or should have known that their premises were being used in this way. It would not even matter if their silence was primarily due to fear. Moreover, as unacceptable as such an outcome would be when property has already been used for crime, the situation could be much worse for property likely to be used in such a way. Yet that's exactly what the bill provides. How would anyone ever prove an event that had not yet occurred? On this basis, a police attempt at clairvoyance could precipitate impoverishment. Beyond seizing property, the bill also provides for court orders aimed at ``preventing or reducing'' the risk of injury to the public. For this purpose, the courts would be empowered, at the instigation of the government, to ``require any person to do or refrain from doing anything.'' Anything? Suppose the next time an international trade conference occurred in Ontario, there was concern about the anticipated misbehaviour of certain protesters? If the curtailment of large gatherings could be seen as helpful in preventing the apprehended injuries, would the courts be effectively able to prohibit otherwise lawful demonstrations? In these ways, a measure that is being sold as a weapon against organized crime could wind up impoverishing law-abiding citizens and assaulting fundamental freedoms. In view of the comparable - and less ``bullish'' - forfeiture provisions of the federal Criminal Code, it's doubtful whether the Ontario initiative would add anything of significance. Even at best, therefore, Bill 155 looks like an exercise in gratuitous posturing. Without a substantial overhaul, it should be dumped. - --- MAP posted-by: GD