Pubdate: Mon, 11 May 2009 Source: Expositor, The (CN ON) Copyright: 2009 Osprey Media Contact: http://drugsense.org/url/MZWWj0Wc Website: http://www.brantfordexpositor.ca/ Details: http://www.mapinc.org/media/1130 Page: 6 Author: Alan Shanoff CASH SEIZED WITHOUT CONVICTION IN MARIJUANA SMELL CASE It began with a missing front licence plate in 2003 and ended at the Supreme Court of Canada in April 2009. Because of the missing front plate, police pulled over a vehicle and discovered a single occupant, Robin Chatterjee. A police computer search showed Chatterjee was out on bail and in violation of a court recognizance. Police arrested Chatterjee for this violation and searched his vehicle. The search resulted in the seizure of $29,020 in cash along with several items associated with a grow op -- an exhaust fan, a light ballast and a light socket. Unfortunately for Chatterjee, there was a strong smell of marijuana on the cash and the other items, although no marijuana was found either in the vehicle or on Chatterjee. No drug charges were laid. No charges were laid regarding the money or the grow op items, but the Ontario Attorney General applied for an order forfeiting the seized money as proceeds of unlawful activity and the grow op items as instruments of unlawful activity. It shouldn't surprise anybody that property obtained through criminal activity may be seized by the government and ordered to be forfeited. What is surprising is the so-called proceeds of crime may be forfeited even if there's been no conviction. Indeed, there needn't be any criminal charges filed. In Ontario, the government need only establish that the property was probably "acquired, directly or indirectly, in whole or in part, as a result of unlawful activity" and it is game over. This is the civil standard of proof, namely proof on a balance of probabilities, rather than the criminal standard of proof beyond a reasonable doubt. Forfeiture laws have also been enacted in British Columbia, Alberta, Saskatchewan, Manitoba, Quebec and Nova Scotia. Last month the Supreme Court of Canada declared the Ontario forfeiture legislation to be valid legislation. Chatterjee initially challenged Ontario's forfeiture legislation as being contrary to the Canadian Charter of Rights and Freedoms but he lost that battle before a lower court. The Charter challenge was doomed to fail because the Charter doesn't protect economic or property rights. Before the Supreme Court he argued the legislation was beyond the legislative power of a provincial government. The top court concluded the provincial government does have the power to enact civil forfeiture legislation under its property and civil rights jurisdiction and this legislation does not fall under the federal government's exclusive jurisdiction over criminal law. It's all very cut and dried constitutional law with little thought given to the merits or fairness of the legislation. The decision has been attacked as allowing provinces to legislate criminal law "through the back door," but really the point of the legislation is not to create new crimes but to make crime unprofitable. That would be a laudable goal but without protection for due process, the legislation is flawed and can be applied to achieve unfair results. Was it fair for Chatterjee to lose the $29,020? If the money was indeed derived from criminal drug activity it should be forfeited. After all, crime shouldn't pay. But Chatterjee wasn't even charged with a criminal offence and there was no firsthand evidence concerning the origin of the money. So where's the criminal activity from which the cash was derived? Absent any reasonable explanation, it is probably a safe assumption that the money was derived from some criminal activity. After all, who walks around or drives around with that kind of cash? I know there's no law prohibiting anyone from possessing large sums of cash, but still it's a lot of cash and remember it did smell of marijuana. Surely, if there was a credible explanation for the cash it would have been raised. But should we be deciding these important issues based on inferences or probabilities? Isn't it funny how small, seemingly insignificant things can make such a difference. But for the missing front plate, Chatterjee wouldn't have been pulled over and he wouldn't have become the subject of a forfeiture order. It's like your mother told you, "take care of the small things and the big things will take care of themselves." - --- MAP posted-by: Keith Brilhart