CIVIL REMEDIES DEBATE HEATS UP

Spadina Ave. Seizure Brings Act Home

The province and police love the Civil Remedies Act because it allows them
to combat crime by hitting criminals where they say it hurts most, in the
pocketbook.

Defence lawyers argue the provincial law that was used to freeze
ownership of an alleged crackhouse in Hintonburg this week is a
"draconian" measure that flies in the face of common law and is
designed to punish people who have never been convicted of -- or in
some cases even charged with -- a criminal offence.

And legal experts suggest governments are likely going to use it more
often and in broader contexts than ever before as authorities find new
and creative ways to apply it.

But first, the powerful piece of provincial legislation, which lets
the Crown freeze or seize property if it is "likely to be engaged in
criminal activity," must survive a Supreme Court challenge as to
whether provinces have the constitutional power to seize the proceeds
of crime.

Earlier this week, Ontario Attorney General Chris Bentley announced
that the alleged crackhouse on Spadina Avenue was the latest property
the province has taken control of using the act.

The owner of the property, which police said has been the subject of
more than 250 complaints, is now unable to sell, lease, transfer or do
anything with the house.

Unless the owner, Kathleen Nora McConkey, can prove in civil court
that it wouldn't be reasonable to expect her to know there was
criminal activity occurring in the house, the property will be
forfeited to the province.

According to Ottawa police, it is just the third time the measure has
been used to seize a house in Ottawa, and the first time that house
wasn't involved in the growing of marijuana plants.

Across the province, the highly controversial law has since resulted
in the seizure of millions of dollars worth of cash and property, from
biker clubhouses to souped up sports cars involved in street racing
and from vehicles belonging to drunk drivers to alleged crack houses.

The use of the law, however, has sparked an intense legal debate as to
whether the province has the constitutional power to legislate in this
manner in relation to property and civil rights or is really
attempting to create criminal law, which is the exclusive jurisdiction
of the federal government.

Further, critics complain the law violates the presumption of
innocence -- a fundamental right in criminal law -- because it permits
the state to seize property regardless of whether charges have been
laid or if anyone has been found guilty in criminal court.

University of Ottawa law professor David Paciocco says because the
government can go after alleged wrongdoers civilly instead of
criminally, "it removes a lot of protections that normally exist in
the criminal law context." "It allows governments to go after criminal
suspects without having to meet the burdens of proof and deal with the
constitutional protections that exist in criminal cases," he says.
"It's analogous to using the immigration system to deal with suspect
terrorists rather than charge them in criminal courts. There are a lot
fewer protections and less hurdles that have to be crossed over."
While the act doesn't define or create any "offences," the law's
detractors believe it is "in pith and substance a criminal law that is
designed to punish those to whom it is applied," says prominent Ottawa
defence lawyer Vince Clifford, who has studied proceeds-of-crime
legislation.

Mr. Clifford said defenders of the law argue that the legislation
doesn't relate to criminal law and is instead designed to eliminate
financial gains from breaking the law, compensate victims and remove
incentives to engage in criminal activity. Some of the money seized is
also used to pay for policing.

If the law survives a Supreme Court challenge, Mr. Clifford believes
the Civil Remedies Act could be a more "attractive" option to
government, both procedurally and in terms of the burden of proof, and
could result in even more widespread use.

"First, history has shown that the state will creep towards the
broadest possible application of laws that are designed to combat
crime or wrongdoing," he says. "Secondly, it's a matter of dollars and
cents. The state will use this law to the full extent in order to
contribute to recouping the cost of law enforcement." Mr. Paciocco
agrees that the act, which was originally billed as a means of
combating organized crime when it was introduced by the Mike Harris
Progressive Conservative government in 2001, is like any other law
enforcement tool. Once it is successful in one context, it is quickly
applied to other contexts until it becomes the norm.

"When you breach an established principle by claiming that it is an
extreme case and requires extreme measures, you weaken the principle
and it's going to be co-opted and used in other contexts," says Mr.
Paciocco. "The more success that is achieved by those who have the
tool, the more inclined they will be to apply it." Ottawa police Staff
Sgt. Murdock MacLeod, who oversaw the investigation into the Spadina
Avenue house, acknowledges the use of the Civil Remedies Act in that
case is a "step outside" of the legislation's traditional use in
Ottawa. However, he says it was necessary after police had exhausted
all other means to address years of complaints.

"This is scary stuff for landlords," says Mark Ertel, president of the
Defence Counsel Association of Ottawa. "Who knows how far they are
going to go with it?" "The tradition in the entire common law world is
that things that are in your possession belong to you unless someone
can demonstrate they have a higher entitlement than you," says Mr.
Ertel, who calls the Civil Remedies Act an "extremely draconian piece
of legislation" that "turns the whole history of the common law on its
head."