ORGANIZED CRIME LAW MISSES ITS TARGET: CRITICS

Low-Level Criminals Usually Prosecuted

An Ontario law that permits the province to seize assets without
laying a criminal charge if there is evidence of a link to illegal
activity is facing a potential constitutional challenge in the
Supreme Court of Canada.

A former Ottawa university student who had $29,000 in cash seized by
police near his family's Toronto-area home in 2003 is asking the high
court to hear an appeal of a decision this spring by the Ontario
Court of Appeal that upheld the provincial Civil Remedies Act.

The legislation encroaches on the federal government's exclusive
jurisdiction over criminal law and is unconstitutional, say lawyers
for Robin Chatterjee in a written argument filed in the Supreme Court
on Aug. 30.

British Columbia, Manitoba, Saskatchewan and Alberta have all enacted
similar civil forfeiture laws since the Ontario legislation came into
effect in 2002 and the appeal by Mr. Chatterjee is seen as a test case.

Mr. Chatterjee was arrested by police after a traffic stop. Police
said they smelled marijuana and discovered the cash after searching
the car. No marijuana was found and Mr. Chatterjee was not charged
with an offence.

The Criminal Code contains provisions to seize proceeds of crime if
someone has been convicted of an offence.

The Ontario legislation permits the province to seize property if it
can show on the "balance of probabilities" the assets were acquired
"directly or indirectly" "in whole or in part" as a result of any
illegal activity.

"Our position is that this can be a dangerous tool," said James
Diamond, co-counsel for Mr. Chatterjee. "It circumvents the
constitutional safeguards of a criminal proceeding," the Toronto lawyer said.

The legislation was originally called the Remedies for Organized
Crime and Other Unlawful Activities Act when it was introduced by the
Conservative government in Ontario in 2001.

The Ontario government issued a report last week that said 170
forfeiture proceedings have been launched in the past four years.
Nearly $4-million in property has been seized. Almost $1-million has
been distributed to victims of crime and $950,000 has been
transferred to municipal police forces.

But most of the attempts to seize assets have not been directed
against organized crime leaders, say lawyers who have defended people
in forfeiture hearings.

"It's lower-level marijuana grow-ops," said Toronto lawyer Ryan Naimark.

His client Yiu Ngau Lok is appealing an Ontario Superior Court ruling
last month that approved the seizure and sale of the $265,000 home
that he purchased in 2000, in a community just north of Toronto.

The 60-year-old widower was accused of running a grow-op in his home
that allegedly generated $40,000 in annual profit. Federal
prosecutors eventually dropped the criminal charges.

The province netted $5,000 after it sold the property and re-paid the
bank that issued the mortgage.

The hearing to determine whether the seizure and sale was legitimate
took five days in court and was not a good use of the Crown's
resources, said Mr. Naimark. He called it "draconian" for the
government to be able to "take someone's home" when there is no
criminal conviction.

Ontario Attorney-General Michael Bryant said last week the province
intends to increase its use of its civil forfeiture powers.

As an opposition MPP, Mr. Bryant was very critical of the legislation
when it was introduced by the Conservative government.

"The bill may end up literally being an illegal, unconstitutional
bill. In that sense, this will have been an enormous waste of time
and an enormous waste of money, and at the end of the day the people
of Ontario will hardly have been served by this public relations
stunt," Mr. Bryant said in the legislature in May 2001.

"The problem with a provincial property approach to organized crime
is that the bad guys, their property, the assets and the proceeds of
crime are likely not in the province of Ontario," the Liberal MPP
added. "This bill will not get at that money. This bill will not be
able to get at those assets."

Mr. Bryant eventually voted in favour of the bill when it was passed
by the legislature three months after the September 11 terrorist
attacks in the United States.