PROVINCE TO SEIZE PROCEEDS OF CRIME

Solicitor-General Rich Coleman said B.C. plans to follow the lead of
Ontario by introducing civil proceeds of crime legislation to enable
authorities to seize cash and property related to crime without the burden
of having to prove a criminal conviction.

The alleged offender would have to show in civil proceeding that his assets
were legitimately obtained. A judge would sign an order allowing the
province to take over the property and dispose of it if he couldn't do that.

"We're working on that legislation now," Coleman said in a recent
interview. "We're obviously working through the legal and charter issues as
we go forward. We'll either [introduce] it this fall or by spring."

Police in B.C. believe such civil legislation would help them to make a
much larger dent in organized crime.

"One of the things that we've found is the proceeds of crime legislation
federally that's tied to a criminal conviction is very difficult and
onerous for people to proceed through, particularly law enforcement,"
Coleman said.

"The intention of this is: If you have a piece of property and you can't
prove to us that it was bought by legal money, or that you actually paid
the income tax on the money you bought it with, it's illegal," he continued.

Critics worry such legislation would go too far. Simon Fraser University
criminologist Neil Boyd said the burden of proof in a civil case is a
"pretty flimsy threshold" on which to decide to snatch property and
essentially brand as a criminal somebody who hasn't been convicted.

"It's pretty dangerous," Boyd said. "We have a criminal law system that is
premised on the idea that you should be found guilty beyond a reasonable
doubt . . . The difficulty I have with using the civil standard to take
away property that is alleged to be proceeds of crime is that you're
dealing, in probabilistic terms, with 50.1 per cent vs. 49.9 per cent --
that's what the burden of proof is in civil cases."

Ontario is the only Canadian province to have such legislation. The
Remedies for Organized Crime and Other Unlawful Activities Act was
proclaimed in April 2002.

The Ontario government and law enforcement have recorded more than 50 civil
forfeitures during the first two years. The province has collected millions
of dollars through forfeiture proceeds and Ontario Attorney-General Michael
Bryant expects the haul to grow significantly.

"In short order, we should be able to recover in the tens of millions of
dollars," Bryant said in an interview from Toronto.

Under the Ontario program, Crown prosecutors and provincial government
civil lawyers typically examine a case to see if it is a candidate for the
civil proceeds of crime legislation. Such civil proceedings are separate
from any criminal case, Bryant said.

In some instances, because evidence must be preserved, a civil case must
wait until the criminal case is completed.

The first priority for money recovered through the Ontario civil
legislation is compensation for victims. But that also depends upon the
victim's needs, Bryant said, adding that victims often can't be tracked
down. And in drug cases, the most common targets of the civil proceeds of
crime legislation, there are typically no identifiable victims.

"If there's any money left over after (victim compensation,) it goes to
covering the cost of the department that is pursuing the civil forfeiture,
and then the remaining money goes toward law enforcement (in Ontario,)"
Bryant said.

"We're turning the told adage: 'Crime doesn't pay' on its head," Bryant
said. "This is becoming an increasingly effective way to recover ill-gotten
gains and put it in the hands of victims and police, where it belongs."

A recent case handled by the York Regional Police shows the tactic's value.
In that instance, a youth was found in a house along with what police
described as a significant quantity of marijuana. The youth was convicted
on the drug charge but the judge in the criminal case refused to order
forfeiture of $9,000 in cash also found in the home because he said
prosecutors could not prove it belonged to the youth.

Using the civil legislation, however, police subsequently obtained a
forfeiture order for the cash and the equity in the house in which the
drugs were found. That amounted to a total forfeiture of $70,000 under the
civil law whereas none would have been forthcoming under the Criminal Code.

Manitoba legislators have followed Ontario's lead, although that province's
Criminal Property Forfeiture Act has yet to be proclaimed.

Solicitor-General Coleman has been outspoken about the importance of
batting organized crime in the province and he told the legislature in
March that criminal organizations working in B.C. are "multi-million-dollar
operations worldwide that are operating cross-jurisdictionally and around
the world, and we need to be able to push back at them in any way we can on
behalf of our communities."

Not surprisingly, police are lining up behind this initiative.

RCMP Inspector George Pemberton, who heads the 50-member proceeds of crime
unit at E Division in Vancouver, said the RCMP fully supports such
legislation in B.C.

"Obviously a civil lawsuit hangs on the balance of probabilities, rather
than beyond reasonable doubt (as in a criminal case,)" Pemberton said. "So
I suspect that this legislation would be used to pursue the cases where
there's good evidence but not maybe good enough for a criminal conviction."

Pemberton said police can always use more and better tools when fighting
organized crime, which is what such civil legislation would represent.

"It's long been recognized by the police community and by criminologists
that until we take the money out of crime, it will always be there, that it
will overpower the potential penalties," he said. "I don't think we will
ever have enough tools."

The B.C. Civil Liberties Association has yet to offer an official position
because it hasn't seen literature on the subject.

But offering a personal opinion, civil liberties association executive
director Murray Mollard wonders if such a law would be constitutionally valid.

"The idea of a reverse onus of such a significant impact on a person's
personal circumstances sounds like the kind of thing that would be ripe for
a legal challenge," he said.

But one constitutional challenge against the Ontario law has already failed
and that province's attorney-general is confident that it is bulletproof.

Proponents say the legislation in both Ontario and Manitoba is designed to
safeguard the possibility of innocent people losing their assets to
overzealous police and civil lawyers.

"It's approved by a judge, so it's not like we just seize it," Bryant said.
"We have to go before a court. The test is a civil test, a balance of
probabilities, and if we establish under the legislation that it amounts to
a proceed of crime on the balance of probabilities, then it's seized."