CRIME BILL A TRAP FOR LAW ABIDING

As The Bill Is Now Written, In Order To Seize Property, The Government
Would Not Have To Prove Its Owner Had Committed A Crime

A few years ago, a Toronto merchant faced monetary fines for violations of
an Ontario holiday-closing law. Fair enough.

But, if Ontario's current Bill 155 were to become law, a repeat performance
could cost him his entire store.

This could happen even though the government claims that Bill 155 is
designed primarily for organized crime and even though that merchant was
not accused of any involvement with organized crime.

Bill 155 is a veritable ``bull in a china shop.'' The breach of any federal
or provincial statute could trigger the forfeiture of property.

The seriousness of the breach would not matter.

It's significant that, in promoting the bill, the Ontario government has
cited with approval the American experience with similar laws. Yet, the
U.S. civil forfeiture statutes have mandated widespread attacks on the
property of ordinary Americans. Indeed, an appellate court in that country
declared that it was ``enormously troubled'' by what those statutes have
made possible. Some role model.

Another ``bullish'' feature of the Ontario bill is that, in order to make a
seizure, the government would not have to prove that the property owner had
committed a crime.

It would simply have to prove that the property in question was probably
acquired through a breach of the law. Not a very onerous burden.

Even less - indeed, nothing at all - would be required for the government
to start such a proceeding. While property owners would be entitled to
dispute the government's claim, it is they, at that point, who would
effectively need to prove their innocence.

Moreover, resistance could be financially and emotionally expensive.

Small wonder that so many Americans submitted to bad settlements rather
than endure costly court fights.

It's one thing for the state to go after property produced by certain
crimes; it's another thing entirely - as the bill would also authorize - to
target property that is simply used for such purposes.

A few years ago, a Texas hotel was seized under a U.S. forfeiture law after
patrons were accused of drug trafficking there.

Although the American prosecutor admitted that he was not accusing the
hotel owners of unlawful conduct, he claimed that the business gave ``tacit
consent'' to the drug dealing.

Under the Ontario bill, owners could suffer a similar fate simply for
failing to notify the authorities when they knew or should have known that
their premises were being used in this way. It would not even matter if
their silence was primarily due to fear. Moreover, as unacceptable as such
an outcome would be when property has already been used for crime, the
situation could be much worse for property likely to be used in such a way.
Yet that's exactly what the bill provides.

How would anyone ever prove an event that had not yet occurred?

On this basis, a police attempt at clairvoyance could precipitate
impoverishment.

Beyond seizing property, the bill also provides for court orders aimed at
``preventing or reducing'' the risk of injury to the public.

For this purpose, the courts would be empowered, at the instigation of the
government, to ``require any person to do or refrain from doing anything.''
Anything? Suppose the next time an international trade conference occurred
in Ontario, there was concern about the anticipated misbehaviour of certain
protesters? If the curtailment of large gatherings could be seen as helpful
in preventing the apprehended injuries, would the courts be effectively
able to prohibit otherwise lawful demonstrations?

In these ways, a measure that is being sold as a weapon against organized
crime could wind up impoverishing law-abiding citizens and assaulting
fundamental freedoms.

In view of the comparable - and less ``bullish'' - forfeiture provisions of
the federal Criminal Code, it's doubtful whether the Ontario initiative
would add anything of significance.

Even at best, therefore, Bill 155 looks like an exercise in gratuitous
posturing. Without a substantial overhaul, it should be dumped.