Forfeiture Laws Threaten Property Rights: Potential for abuse too great

Commentary, Joseph Quesnel, Property Rights, Uncategorized

In Canada, as well as other jurisdictions, when it comes to criminal activity there are threats to property rights that are not immediately obvious. Civil asset forfeiture or non-conviction based forfeiture is a legal technique through which governments using the courts benefit from property supposedly used in unlawful activity. It is a civil proceeding executed through civil court, and is distinct from proceedings in the (federal) Criminal Code where at least a criminal conviction is required before one goes after property.

The central problem is that the standard of proving guilt beyond a reasonable doubt in criminal processes does not apply in these cases. Civil forfeiture only requires a provincial government to prove that the asset was more likely than not, on a balance of probabilities, used or obtained through crime.

One B.C.-based criminal defense counsel wrote, “Civil forfeiture threatens to be employed in situations where the connection between the crime and the property is tenuous, disproportionate (meaning the asset is used only occasionally or in small part for the commission of crime), or where the state wants to get back at individuals it isn’t able to convict in a criminal court.”

It is certainly not just a problem affecting B.C., however. Eight provinces in Canada have passed laws allowing for of civil asset forfeiture.  Ontario’s Civil Remedies Act was the first statute.  Provincial ministries justify asset forfeiture by arguing that it removes the profit incentive from criminal activity and “takes a bite out of organized crime.” Combating drug related activity was the intention of drafting such laws.  However, some provinces have used civil forfeiture to seize property that is not associated with drug crimes. 

Recently in Winnipeg, Steve Skavinsky, a youth soccer coach, was accused of sex crimes involving children.  Skavinsky has been charged with but not convicted of the offences.  The fact that the 50-year old man is innocent until proven guilty has not prevented the Manitoba provincial government from filing a claim to seize his property in December 2010, before his trial began.  “We’re not going after the person, we’re going after the property”, Minister of Justice Gord Schumacher said in defense of the action.  That the Province is willing to extend the reach of civil forfeiture beyond its intended purpose is deeply troublesome for the protection of personal property rights.

There is further evidence that Manitoba is not the only province that is overextending the reach of the state through the enactment of civil forfeiture laws.  British Columbia, for example, recently passed the Civil Forfeiture Amendment Act allowing the province to seize property if an appointed Director has “reason to believe” the property is proceeds or an instrument of crime. The law also says that for property valued at up to $75,000 (other than real estate), it is the owner who has to take the government to court to recover his property.  Not requiring a criminal conviction to seize private property is a dangerous bourgeoning of state power.

The claim that asset forfeiture is taking a bite out of organized crime is suspect. For instance, researchers from the U.S., Australia, and Great Britain have noted that forfeiture has failed to limit organized crime. In June 2011, the Manitoba government claimed that $1.4 million in assets had been successfully forfeited. The evidence for the claim, however, is suspect given that the revenues gained from asset forfeiture are fraction of the total monetary value of organized criminal activity. 

The United States provides plenty of abusive examples of asset forfeiture. In March 2010, the Institute for Justice, an American think tank, released a study called Policing for Profit: The Abuse of Civil Asset Forfeiture.  The study shows how state and federal asset forfeiture laws have victimized innocent people. For example, such laws in Massachusetts led authorities to try seizing a motel from its owner because a small fraction of crimes occurred in some rooms rented to third parties. The authors argue that by giving, “law enforcement a direct financial stake in forfeiture efforts, most state and federal laws encourage policing for profit, not justice.”

Canada, of course, does not have to go down the American path. However, there are already signs that Canadian provincial authorities are interested in expanding this practice or at least making it much easier to accomplish. Fighting crime is necessary, but it is dangerous when it conceals attacks on property rights.