Pubdate: Tue, 25 Feb 2014
Source: Winnipeg Free Press (CN MB)
Copyright: 2014 Winnipeg Free Press
Contact: http://www.winnipegfreepress.com/opinion/send_a_letter
Website: http://www.winnipegfreepress.com/
Details: http://www.mapinc.org/media/502
Page: A8

SEIZURE LAW TOO HARSH

ANYTHING bought with money generated by crime can and should be seized
by government because no one should profit from illegal activity.

Everyone can agree with those principles and the laws that support
them, but some provincial governments in Canada have shown poor
judgment and excessive zeal in how they are enforced.

Several cases in Manitoba, in fact, cry out for a review of the
legislation that gives the state too much power in seizing the assets
of people who may have committed minor crimes, or whose offences are
not directly related to the property seized. Sometimes the value of
the confiscated property is grossly disproportionate to the offence
itself.

Several examples of such lopsided justice were outlined by Free Press
reporters James Turner and Mary Agnes Welch in 49.8 on Saturday.

In one case, a 51-year-old man charged with cultivating marijuana in
his home is not only facing criminal prosecution, he could also lose
his house under the province's five-yearold Criminal Property
Forfeiture Act.

The confiscation of his home would be justified if he was running a
large criminal operation and if the proceeds had been used to purchase
the property. The facts, however, are it was a tiny two-light
marijuana grow operation that produced enough pot for his personal
use, which he said included medical purposes.

Equally offensive, however, is the fact the province can seize his
home even if he is acquitted, or if the judge imposes a minor fine. It
is fundamentally wrong that an individual could lose his life-savings
over a relatively minor infraction.

Another dangerous precedent was set when the province seized the home
of a man before he pleaded guilty to sexual assault involving a
teenager. The crimes occurred in the home, but it's a weak basis for
triggering the forfeiture legislation. It also raises questions about
other forms of property - such as a white-collar business - that could
be seized if a crime was committed by the owner.

The government so far has avoided this kind of prosecution, preferring
to target individuals who frequently lack the resources to fight back.

In British Columbia, which has a reputation for being the most
aggressive of the provinces in applying its forfeiture law, the
province seized the agricultural land of a man who was ultimately
acquitted of cultivating marijuana.

As in Manitoba, the criminal guilt or innocence of a suspect is often
irrelevant because once a prosecution is started, the onus is on the
individual to prove he is innocent. Guilt is determined on a balance
of probabilities - the civil test - rather than the more onerous
"innocent until proven guilty beyond a reasonable doubt."

The Supreme Court of Canada has upheld provincial forfeiture laws, but
like most Canadians, it may have assumed governments would exercise
restraint and good judgment.

The federal proceeds of crime law is more vigorous in its application,
but also fairer. It targets only major criminals, such as money
launderers or major drug traffickers where profits are clearly related
to the crime.

Manitoba's recent decision to list the Hells Angels as a criminal
organization, which will make it easier to seize the property of
individual members, is just the latest in a series of laws that have
increased the power of the state, while diminishing the normal checks
and balances designed to protect the rights of the individual.

These laws have been enacted under the guise of protecting society and
deterring crime, but they have reached too far and trampled the
principles of due process and fair play.

The Manitoba government needs to review its forfeiture law to ensure
it is achieving its intended goal because, at this point, it is
putting a lot of people at risk for penalties that are often far worse
than the crime.
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MAP posted-by: Matt