THE HIGH COST OF CRIME

A Little-Known Law Means That Even If You're Acquitted Of A Crime In
Ontario, You Might Still Have To Pay, Writes Sean McKibbon

THE LONG ARM of the law is extending into the pockets of people
acquitted of lucrative crimes.

THAT'S RIGHT acquitted.

Defence lawyers are up in arms about a law they says shifts their
clients' burden from innocent until proven guilty to tainted until
proven clean. Law enforcement officials say they're glad to have a
tool to make sure crime doesn't pay, even when they can't prove guilt
beyond a reasonable doubt.

The little-known Civil Remedies for Organized Crime and other Illicit
Activities Act, passed in 2001, allows the Ontario government to ask
a judge in civil court to order forfeiture of property allegedly
obtained through illegal activity.

In the last three years, the Civil Remedies for Illicit Activities
(CRIA) office has had more than $2 million worth of property seized
and ordered forfeited to the province, and is seeking preservation
and forfeiture orders for an additional $7 million.

Attorney General Michael Bryant says the province will ramp up the
CRIA office's operations and Ontarians will likely see an increasing
number of civil actions aimed at cracking down on organized crime.

"We intend to try to build stronger communities by ensuring anybody
using property in some way -- whether a car, bank account or house
- --for improper activities will have to forfeit that property with the
proceeds going to victims," he says.

Lawyers for people who have run afoul of the office say the Civil
Remedies Act is overly broad, runs roughshod over civil liberties and
is a case of the province meddling in affairs reserved for the
federal government.

"This is an Act that can create abuse," says James F. Diamond, the
lawyer representing Robin Chatterjee, who was stopped by York
Regional police March 27, 2003, when they noticed his car's front
licence plate was missing.

No Charge Needed

During the stop, police ran Chatterjee's name and discovered he had a
record and a bail condition to reside in Ottawa. They arrested him
for the breach and searched his car, finding $29,020 that allegedly
smelled of marijuana as well as a light ballast, light socket and an
exhaust fan.

Chatterjee was never charged with marijuana-related counts, but the
authorities moved under the Act to seize the items. A Constitutional
challenge was dismissed, but Diamond and his client are waiting for a
decision on the merits of the case.

"The way the Act works, the Attorney General would have to show this
thing or this money or proceed or investment is an instrument or
proceed of unlawful activity. The flip side of that is, if you read
the Act, only a party to an application for forfeiture can claim
legitimate ownership status. To do that, one would have to prove that
he or she did not acquire the property through illegal activities. We
interpret that to be a reverse onus," Diamond says, adding it's not
just people accused of crimes who should worry.

"The wide net cast by the Act could mean anything from the Criminal
Code to any provincial statute," Diamond adds. "So a significant
remedy like forfeiture could result from one of the most minor
breaches in the Code or any other statute. In a criminal proceeding,
you may be acquitted or receive a conditional or absolute discharge.
But the same matter could result in you losing your house."

Bryant says the law is constitutionally valid and allows the
government to pursue damages that crime inflicts on society in general.

"The wrong is the unlawful activity," he said. "The harm of a crack
house is the robberies and break-ins that happen in the neighbourhood
around it as a result."

Civil Remedies Act proceedings are always a last resort, says Ottawa
Police Det. Chris Rolofs. Seconded to the Asset Forfeiture Unit of
the Ontario Provincial Police, Rolofs is in charge of submitting
cases to the CRIA office.

"You don't investigate things for the purpose of a Civil Remedies
proceeding," he says. "There are no police powers under that legislation."

What's more, he says, the relatively new legislation simply isn't the
first thing on an officer's mind during an investigation.

Police Det. Const. Andy Graham, of the York Regional Police --one of
the first forces to start using this "cutting edge tool" -- says,
from an officer's perspective, it's always better to get a
conviction, but "we're also in the business of doing the right thing."

Advantage

"It's not my job to decide guilt or innocence," he says. "If I have
reasonable and probable grounds, I put him in front of a judge and
let him decide."

An advantage of the legislation, he says, is that it doesn't limit
itself to proceeds of crime, "it could be used for guns."

Indeed, Bryant says the government is considering using the
legislation against people who violate laws other than those in the
Criminal Code.

"For the common citizen, this has to be sobering," says Doug Baum, an
Ottawa defence lawyer who represented Ricardo Richard Spence, who
along with two other people --Mellissa Mallette and Emmanuelle
Berhane Firew -- was named in an action to seize $1,475 in Canadian
currency and $20 US.

The money was seized by police who stopped the trio in a car after
two days of surveillance. According to an affidavit in support of the
forfeiture application, police received a tip that two men were
selling crack inside a house and were with a woman. When they stopped
the car, they found the money, a cellphone, a small amount of
marijuana and crack.

No charges were ever laid, but Baum said the three respondents walked
away from the money as it would have been too expensive to go to
court to get it back.

"Unless you have 20,000 or 25,000 bucks, its not worth it," says
Firew's lawyer Bruce Simpson.

The Attorney General's office refuses to release the annual budget
for the CRIA office, but Simpson says "in order get that forfeiture
order signed, the provincial government probably spent three or four
times that (the amount seized) ... It probably would have been
cheaper to let them have the money."