THE PERILS OF EASY FORFEITURE

Federal Justice Minister Irwin Cotler says it won't be long before he
tables a bill in Parliament facilitating the government's ability to seize
and forfeit a criminal's ill-gotten property. We can only hope he takes
into account the lessons learned in other jurisdictions. While it makes
sense to ensure that criminals do not profit from their crimes, asset
forfeiture laws present enormous potential for abuse unless they are
carefully drafted.

In the United States, it took the passage of the comprehensive Civil Asset
Forfeiture Reform Act (CAFRA) in 2000 to curb overreaching by law
enforcement agencies. Before CAFRA, authorities were able to seize property
- -- something as small as a sofa, or as large as a mansion -- from suspected
drug dealers before they had the opportunity to defend themselves at trial.

Absurdly, property owners eventually acquitted of their alleged crimes then
had the burden of proving their property was innocent. Under the pre-CAFRA
system, if drugs were found in Mr. X's home, the government could seize
that home even if Mr. X had nothing to do with the drugs, on the basis that
the home itself had been tainted.

Even now, pre-conviction forfeiture -- while less easily accomplished than
before -- is still common south of the border.

Mr. Cotler should be equally careful about how the proceeds from seized
assets are dispersed. Under any new legislation, proceeds should go to the
general treasury -- not, under any circumstances, to the law enforcement
agencies directly involved in policing or prosecution. To do otherwise,
clearly, would create unhealthy incentives for officers to be overly
vigorous in pursuing arrests and convictions.

As an example of how forfeiture law can go wrong, Bloc Quebecois justice
critic Richard Marceau's proposed joint opposition bill is unintentionally
instructive. Under Mr. Marceau's scheme, those convicted of certain
gang-related offences would be forced to either convince a court "that
every item of property owned by that person is not proceeds of a crime" or
kiss those items goodbye. The burden of proof in such cases should be on
the state, not the individual. To legislate otherwise is an invitation for
illegitimate forfeitures, and therefore an encroachment on citizens'
fundamental property rights.

Unfortunately, Mr. Cotler has said that his legislation "arguably might be
broader than even what Mr. Marceau has proposed." If that's how he plans to
go about forfeiture, this is a rare occasion on which we hope a
politician's tough talk on crime turns out to be a lot of hot air.