Pubdate: Thu, 10 Jul 2014
Source: National Post (Canada)
Copyright: 2014 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Page: A10

WHEN 'TOUGH ON CRIME' GOES TOO FAR

For many Canadians, a home is the single most valuable asset they will
ever own. It not only provides a long-term store of value, it protects
peoples' assets and loved ones. It's little wonder Canadians spend
considerable amounts of money on insurance, alarm systems, firearms
and smoke detectors to protect their homes and the people that live in
them. Unfortunately, homes are not just a tempting target for
burglars, but for governments, as well.

Federal and provincial governments throughout this country maintain a
host of civil and criminal forfeiture laws. They are sold as a means
of collecting money from criminals to compensate victims. But more
often than not, the government simply ends up pocketing the money. And
governments have also gotten in the habit of using forfeiture laws to
punish people who have committed victimless crimes and who have
already paid their debt to society.

Case law on how and when governments can do this is all over the map.
But late last month, the Court of Appeal of Alberta handed down a
small victory, not just for a Calgary woman who was convicted of
running a marijuana grow-op, but for freedom-loving Canadians who
think that limits should be placed on the government's ability to
seize private property.

The case involved 66-year-old Heng Kiet Kouch, who was charged with
producing marijuana in 2010 after police found 128 plants in her
basement. Ms. Kouch plead guilty and received a one-year conditional
sentence. Then, the Solicitor General of Alberta tried to go after her
home, which was not just used for her illicit gardening operation, but
was also her primary residence.

The hearing judge originally agreed that even though Ms. Kouch lived
in the home and that she was unlikely to use the property in the
commission of another offence, t he Alberta government nevertheless
had the right to seize the property and put it up for sale.

The appeals court did not fundamentally disagree, but stressed that
the value of the property being appropriated must be proportional to
the crime and, importantly, that, "Forfeiture to the state of a
citizen's rights in her property, particularly when it is her dwelling
place, calls for scrupulous adherence to all applicable procedural and
legal requirements."

Since the Calgary Police Service did not properly prove that the value
of the marijuana - which it claimed was worth between $100,000 and
$160,000 - was equivalent to the equity Ms. Kouch held in her home,
the appeals court ruled that the state could not take the residence.

Ms. Kouch was lucky. Had the police properly proved the value of the
drugs were comparable to the value of the home, the Alberta government
could have used the Victim Restitution and Compensation Payment Act to
put Ms. Kouch on the street, even though she committed a victimless
crime and had paid her debt to society by spending time behind bars.

Bruce Montague, a northern Ontario gunsmith who decided to protest the
imposition of the federal gun registry in 1995 by letting his licences
expire, was not so lucky. Mr. Montague served seven months in jail,
completed 90 hours of community service and was on probation for a
year - itself a hefty sentence for a simple licensing infraction. But
then the federal government used forfeiture laws to seize his gun
collection, which was worth approximately $100,000 and represented the
bulk of the family's life savings. Mr. Montague recently lost his
fight to get his property back, but his nightmare did not end there:
The Ontario government is also trying to use forfeiture laws to seize
his home, which he built with his own hands, and has been used to
house his family and his business.

"Are we now to understand that financial ruination is a decent and
acceptable way for the federal government to punish licensing
offences?" asked the Post's Marni Soupcoff in a recent column. That's
a good question.

Of course Canadians should comply with the law. When they don't, the
state has the power to take away their liberty and send them to
prison. Taking away their property as well, is often a cynical ploy
for the government to collect revenue from people who enjoy little
public support. It is also a policy that prevents offenders from
getting back on their feet once they have served their sentence -
potentially pushing some of them back into a life of crime.

Governments across the country clearly see value in being seen to be
tough on crime. But the seizure of property, particularly homes, from
non-violent offenders, is a punitive step that simply goes too far.
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MAP posted-by: Matt