Pubdate: Thu, 23 Apr 2009 Source: Guelph Mercury (CN ON) Copyright: 2009 Guelph Mercury Newspapers Limited Contact: http://news.guelphmercury.com/ Details: http://www.mapinc.org/media/1418 Author: Dennis Baker Note: Dennis Baker is an associate professor of political science at the University of Guelph and author of Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation, which is to be published by McGill-Queen's University Press. Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture) COURT RULING ON CIVIL REMEDIES ACT RAISES TROUBLING QUESTIONS An old saying has it, "You can't be a little bit pregnant." But according to the Supreme Court of Canada, you can be a little bit guilty when it comes to criminal liability in Ontario. Last week, the Court upheld the province's Civil Remedies Act, which permits the attorney general to seize property resulting from unlawful activity. At first blush, this is entirely unremarkable. The federal Criminal Code allows judges to make forfeiture orders as part of sentencing, and such orders are routinely made. What's new about the Ontario legislation, however, is that you needn't be convicted of anything to have your property taken by the state. Unlike the Criminal Code, which requires proof of guilt beyond a reasonable doubt, the provincial law has a much lower standard -- "on the balance of probabilities" -- which means that the property is more likely than not to have been the product of unlawful activities. In this case, Robin Chatterjee was stopped by police for failing to have a front licence plate. Upon arrest for a breach of a recognizance order, police found $29,020 in cash, a light ballast, socket and exhaust fan in his car. Although these possessions had a "marijuana odour," no actual drugs were found in the car. Of course, it is more than slightly suspicious that Chatterjee, an unemployed student, would be riding around with that much cash and with some of the trappings of marijuana production. There is, however, no crime known as "driving with money and electrical supplies," so Chatterjee was not charged with any drug crime. Even though there was no proof beyond a reasonable doubt that Chatterjee was a drug dealer, the suspicious circumstances were enough to allow the attorney general to seize the money on the grounds that it was likely the result of criminal activity. In other words, the state couldn't prove he was guilty of a crime -- but he was a little bit guilty, and so it was appropriate to strip him of his property. How is this possible? The answer lies in the division of powers in our federal state. While the federal government has the power to enact criminal laws, the provinces are given wide scope to legislate on matters relating to property. The Supreme Court has interpreted these powers to allow for some degree of overlap - "interjurisdictional immunity," as lawyers put it, is rare in Canadian federalism - and thus a provincial law can have aspects that intrude on federal powers so long as it is not the primary focus of the law. In the case of the Civil Remedies Act, Ontario argues that its law is directed at the regulation of property (ensuring legitimate ownership and preventing the property from being used in future criminal endeavours, for example) and not a means of punishing criminal behaviour. Consistent with this approach, the law does not impose any fine or punishment beyond the property seizure and the legal proceedings are not brought against the accused, but rather in respect of the property itself. This accounts for the original name of the case: instead of R. v. Chatterjee we have the punchline-inducing "Attorney General (of Ontario) vs. $29,020 and a Light socket." The Supreme Court accepted Ontario's characterization of law despite cases like Chatterjee's, where unproven but suspected criminal liability resulted in property deprivation. The province argues that the seizure is not a punishment but simply a return of ill-gotten gains. Again, however, this assumes an underlying offence which, while proven likely, fails to meet the higher standards we usually insist upon for criminal liability. This is not to say that civil liability cannot be an effective complement to the criminal justice system. Ron Goldman's parents managed to get a modicum of justice when they were able to establish that O.J. Simpson was the likely killer of their son, even though an absurd jury verdict had relieved Simpson of criminal responsibility. Similarly, it is hard to imagine that Chatterjee's windfall had been acquired legitimately. (To answer this concern, Chatterjee offered a series of inconsistent explanations, ranging from casino winnings to transferring funds for his girlfriend, to simply not knowing at all how such a sum had materialized in his vehicle.) At the same time, the imposition of civil consequences to alleged criminal behaviour raises a number of serious concerns. Chief among them are the unavailability of key charter guarantees in these cases, since many due process rights are triggered only with a criminal charge. This opens the possibility for outcomes more troubling than Chatterjee's, where an unconstitutional police search could lead to a seizure of property. Civil rights advocates and property rights enthusiasts -- rarely the same people, in this author's experience -- would be wise to monitor future applications of the Civil Remedies Act and the similar legislative schemes enacted across the country. - --- MAP posted-by: Jay Bergstrom