DO PROVINCES HAVE A RIGHT TO ILL-GOTTEN GAINS?

Ontario has reaped millions under a controversial forfeiture law that
is about to be tested in the Supreme Court

When Toronto police officers pulled over Robin Chatterjee's car on
March 27, 2003, they detected the reek of fresh marijuana - but
couldn't find a trace of it.

Aside from $29,020 in cash, an exhaust fan and a light ballast, there
was a dearth of even circumstantial evidence to link Mr. Chatterjee
to a marijuana grow operation. The Carleton University student was
freed without charges.

But that was not the end of Mr. Chatterjee's troubles. Provincial
prosecutors moved in swiftly and seized the cash and the contents of
his car under a controversial forfeiture law that will be tested in
the Supreme Court of Canada next week.

Because Mr. Chatterjee could not explain the source of the money, and
the equipment was the type frequently used in grow-ops, the law
allowed them to be deemed to be connected to crime.

The stakes in the case are enormous: Future forfeitures are expected
to bring in tens, if not hundreds, of millions of dollars.

James Diamond, a lawyer for Mr. Chatterjee, said that his client's
case is a perfect vehicle "to expose the shortcomings in the
legislation. There were absolutely no drugs whatsoever found
anywhere. The file was closed, and that was the end of the investigation."

Yet it is not the Draconian elements of the law that will be under
challenge. Instead, the case will focus on whether the provinces have
any right to seize the proceeds of unlawful conduct.

Mr. Diamond alleges that Ontario's Civil Remedies Act is criminal
legislation that has been cunningly disguised to look as if it
pertains to property and civil rights - valid areas of provincial jurisdiction.

"But the act cuts and pastes the entire Criminal Code - along with
every other piece of federal legislation which may create offences,
from the Customs Act to the Income Tax Act," Mr. Diamond said in an interview.

Under the Civil Remedies Act, an Ontario Superior Court judge must
decide, on "a balance of probabilities," that an item was obtained by
unlawful conduct.

(The provision is entirely distinct from federal criminal forfeiture
laws, which are part of the criminal sentencing process, and widely
conceded to be constitutional.)

Since 2002, Ontario has seized or launched forfeiture proceedings
involving almost $16-million in property; 73 per cent of it was from
drug-related cases.

B.C. has seized $4.5-million under its own provision since 2006.
Alberta, Nova Scotia, Manitoba and Quebec have created forfeiture
laws, but have delayed using them until the Supreme Court rules. The
remaining provinces are almost sure to pass their own laws should the
Supreme Court rule in their favour.

In a brief to the court, Ontario prosecutors Robin Basu and James
McKeachie argue that deterring the creation of grow operations is
linked directly to civil rights and property because grow-ops consume
inordinate amounts of electricity and are potentially dangerous.

They also emphasized that the civil remedies law does not penalize or
punish individuals, it merely seeks to retrieve property that did not
rightfully belong to the owner.

B.C. prosecutors J. Gareth Morley and Bryant Mackey bolstered that
point in their brief, adding: "If a child takes a cookie that she is
not allowed to take and is required to return the cookie, she is not
'punished.'

"A bank robber who repays the stolen funds is, likewise, not
punished," they added. "Assuming, as this Court must, that Mr.
Chatterjee obtained the $29,020 from the illegal drug trade, it would
abuse the English language to say that he has been 'punished' simply
because he can no longer use his ill-gotten gains."

Mr. Diamond warned that, while the provinces have been careful to
restrain their greed pending the court's ruling, the floodgates could
quickly open to a court-sanctioned plundering of homes, property and
bank accounts based on nothing more than suspicion.

He also warned that potentially innocent third parties are bound to
fall prey to forfeitures, such as a pair of Barrie, Ont., landlords
he represents whose buildings are being seized because some tenants
sold crack cocaine there.

Mr. Diamond noted that the province originally marketed its
forfeiture legislation as a method of defeating organized crime while
helping victims obtain compensation.

In reality, he said, only about 15 per cent of the seizures have gone
to victims, and a great many of those targeted for forfeiture had no
organized crime connections.

The Canadian Civil Liberties Association, a legal intervenor in the
case, said that the act is so broadly worded that Ontario can plow
the proceeds of forfeitures into police budgets.

In a moderate surprise, the federal government has thrown its support
behind Ontario: "Forfeiture of the proceeds of crime is an important
part of society's response to the various kinds of harm that
profit-driven crime visits on individuals and communities at the
local, national and international level," said a federal brief by
prosecutor Cheryl Tobias.