Pubdate: Wed, 20 Aug 2014
Source: Toronto Star (CN ON)
Copyright: 2014 The Toronto Star
Contact:  http://www.thestar.com/
Details: http://www.mapinc.org/media/456
Author: Marco Chown Oved
Page: GT1
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

CHARGES DROPPED, BUT HOUSE STILL SEIZED

When police stormed a house on a quiet Oshawa street in August 2006, 
they thought they had hit the jackpot: Ounces of cocaine, Oxycotin 
pills, ecstasy, hashish and cash.

They boasted of the bust in press releases, but almost three years 
later, the charges against the residents of the house were quietly 
dropped. Yet Denis and Margaret Deneault weren't off the hook.

Even though they were never found guilty of a crime related to the 
raid, the government went after their house using a rare legal 
procedure called civil forfeiture and seized 60 per cent of its value 
last month. Judge David Salmers ordered the Deneaults to pay $55,792 
in order to keep their home.

The Deneaults did not want to be interviewed for this story, 
explaining on their doorstep that the process had dragged on for 
years and they were happy to cut a cheque and have it done with.

"You can fight it, but the lawyers will cost you more than they're 
asking for," said Denis.

Margaret said the process was unfair: the charges had been dropped 
and they were still being punished for the crime. "It's a total 
double-standard law," she said.

Civil forfeiture targets property that is "a proceed or an instrument 
of unlawful activity," wrote Ontario attorney-general spokesperson 
Brendan Crawley in an email. Yet no conviction - not even a charge - 
is necessary for a seizure.

"Proceeds means property, such as money, that is acquired as a result 
of unlawful activity. An instrument is property that is likely to be 
used to engage in unlawful activity, such as a house used as a 
marijuana grow operation. Property includes all types of assets, such 
as real estate, cars and cash," Crawley wrote.

Legal experts say that the procedure is easily abused because the 
standard of proof in civil court is much lower than it is in a 
criminal proceeding.

If the Crown's case isn't strong enough for a criminal conviction - 
where it must be proved "beyond a reasonable doubt" - it still may be 
good enough to seize property, because in civil court you only need 
to demonstrate your case on "a balance of probabilities." If a judge 
is 51 per cent convinced that a house was bought with dirty money or 
was used while committing a crime, then it can be snatched by the state.

"It goes against the core of my criminal-lawyer being that the state 
can do this," said Craig Bottomley, a lawyer with experience fighting 
civil forfeitures. "If you're going be doing something as serious as 
taking away someone's home, then they should have the benefit of a 
trial where the state is put to the standard of proof beyond a 
reasonable doubt."

The idea behind civil forfeiture was to give the government a way to 
go after drug dealers' profits. It's a popular Robin Hood policy that 
seizes goods owned by criminals, liquidates them and puts the money 
in a fund for victims of crime.

"But if you overstretch from that more pure motive and you say, 
'we're taking money away from people that we find unsavory, and we're 
going to give it away and we're going to look good politically doing 
it,' then it becomes more problematic," said Bottomley.

In the United States, recent reports have exposed small town police 
departments that employ roadside civil forfeitures to seize cars, 
cash and even electronics, using the resale proceeds from these items 
to finance their own operations.

The New Yorker reported that one police department in Tulsa, 
Oklahoma, used a Cadillac Escalade stencilled with the words "This 
Used To Be a Drug Dealer's Car, Now It's Ours!"

The U.S. Department of Justice seized almost $4.2 billion worth of 
property in 2012 alone, according to the report, but here in Canada, 
the statute is used far less often.

According to Ontario's attorney-general, since November 2003 the 
province has seized $44.6 million in property and frozen $15.6 
million in assets pending civil proceedings. Most of this has been 
ostensibly crack houses, marijuana grow operations, biker clubhouses 
and street racing cars.

The attorney-general has distributed $21.2 million to victims of 
crime, but the vast majority of this was sent to the US in relation 
to the Stanford Ponzi Scheme.

Because seized property doesn't go to the police, there isn't the 
same profit motive in Canada as in the United States, but Bottomley 
says this hasn't prevented the crown from pursuing some questionable cases.

"You get some very creative applications by the government to do 
these things, and you wonder, 'what's the intention here?' when the 
province is collecting all this money," he said.

In Orillia, the crown is attempting to secure the forfeiture of two 
rooming houses, arguing that tenants were selling drugs and their 
rent payments are proceeds of crime. The landlords have not been 
charged with any crime but are being held liable for the alleged 
crimes of their tenants.

In a factum filed in Barrie, landlord Margaret Reilly says she and 
her husband managed six income properties and reserved two of them 
for "disadvantaged members of society."

The Reillys charged $450 for rooms and rented to homeless people and 
people with mental health and substance abuse issues.

"That some drug use occurred at these properties is beyond dispute," 
the factum says; the landlords attempted to help their tenants back 
onto their feet, hiring them for maintenance work and even driving 
them to addictions counsellors.

"The Reillys' tenants were unsavory, mentally ill and drug addicted; 
but they needed somewhere to live," it says. "To accept the 
Applicant's submission that the properties should be forfeit as the 
proceeds of unlawful activity would set an untenable and unfair 
standard for landlords of all types.

"A family renting out their basement to a fraud artist could lose its 
home. A corporation with a skyscraper apartment building could lose 
the entire building if tenants paid a month's rent with money 
obtained selling marijuana."

Attorney-general spokesperson Crawley pointed out that civil 
forfeiture legislation protects "legitimate owners (those who owned 
the property prior to the unlawful activity and were deprived of it; 
or who acquired the property after the unlawful activity but did not 
know) ...(and) responsible owners (those who have done all that can 
reasonably be done to prevent their property from being used for 
unlawful activity)."

"Finally, under the legislation, the court retains a residual 
discretion to exempt property from forfeiture if to do so would be 
"clearly not in the interests of justice," Crawley wrote.

Bottomley, who represents Reilly, declined to comment specifically on 
the case because it is still before the courts. But he did point out 
that Canada, unlike the United States, has no constitutional 
protection for property.

The U.S. Constitution's Fifth Amendment says that no one should "be 
deprived of life, liberty, or property, without due process of law." 
By contrast, the Section 7 of The Canadian Charter of Rights and 
Freedoms only guarantees "the right to life, liberty and security of 
the person."

"It's a difficult constitutional climb," he said. "There are very few 
safeguards."

Bottomley doesn't believe that any politician will change the laws on 
civil forfeiture and hopes instead that judges will use sound reason 
"to create a body of case law where spurious applications are going 
to be stamped out."
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MAP posted-by: Jay Bergstrom