AG INCREASES USE OF FORFEITURE POWERS TO SEIZE ASSETS

The Ministry of the Attorney General has increased its use of sweeping
provincial civil forfeiture powers in the past year to seize assets,
including people's homes, even if criminal proceedings have been
stayed or withdrawn because of Charter violations.

The increase in bids to seize property in suspected grow-ops will
result in more court back-log, predicts Peter Zaduk.The increase in
applications under the Civil Remedies Act has led to suggestions that
the ministry is effectively condoning police misconduct and unfairly
using its powers as a "cash grab" in a manner that is not proportional
to the alleged offences.

The civil forfeiture powers were enacted by the former provincial
Conservative government in December 2001 and originally called the
Remedies for Organized Crime and Other Unlawful Activities Act.

The act permits the province to seize assets if it can show on the
balance of probabilities the assets were acquired directly or
indirectly "in whole or in part" as a result of any illegal activity.

Renamed the Civil Remedies Act by the Liberal government, the
legislation withstood a challenge this spring in the Ontario Court of
Appeal, which found it did not encroach on the federal government's
criminal-law power.

Attorney General Michael Bryant spoke out against the legislation in
2001 when he was an opposition MPP. He suggested it could be
unconstitutional and would not be effective in seizing the assets of
actual organized crime groups. (Bryant voted in favour of the bill
when it was passed in the legislature three months after the Sept. 11,
2001 terrorist attacks.)

As attorney general, however, Bryant has been an enthusiastic
supporter of the legislation and told The Toronto Star last month that
the Court of Appeal decision provided an opportunity for an
"exponential growth," in the use of the seizure powers. In response to
a recent critical editorial in The Globe and Mail, the attorney
general dismissed suggestions that the law was a "blow" to civil
liberties, and said there were no violations of rights because only
property was being seized.

A report issued recently by the attorney general's office stated that
$3.6 million in property has been seized in the past four years in 170
proceedings. Nearly $1 million has been distributed to crime victims
and more than $900,000 transferred to municipal police forces.

In negotiations with someone facing a forfeiture hearing, the civil
branch of the ministry will normally offer respondents five per cent
of assets to avoid a costly court hearing.

When the provincial Conserv-atives introduced the legislation in 2001,
they stressed that the bill was to be used to fight organized crime.
But Toronto defence lawyer Darren Sederoff says the forfeiture
hearings are almost exclusively related to marijuana grow-op
investigations, and are targeting low-level people involved in the
operation. "They are going after the gardeners," says Sederoff. "This
is a cash grab to fill the government's bank accounts and to put out
press releases."

"The province has become a bottom feeder," suggests Paul Burstein, who
acted for the Criminal Lawyers' Association as an intervener in the
Chatterjee case this year that upheld the Civil Remedies Act. Robin
Chatterjee is seeking leave to appeal to the Supreme Court of Canada.

The civil hearings are a "dilution of the burden of proof," says
Burstein, noting there are already powers in the Criminal Code to
seize "real proceeds of crime," if there is a criminal conviction.

While the Charter does not protect property rights, Burstein disagrees
with the attorney general's contention that there is no infringement
of civil liberties when the state seizes someone's home.

"There is no proportionality analysis," in applying these powers, says
Burstein.

A ruling last month by Superior Court Justice Rose Boyko upheld the
seizure of a $265,000 home in Markham from a 60-year-old man accused
of running a small grow-op in his residence. The province netted
$5,000 after it sold the home and re-paid the mortgage holder.

The man was represented by Sederoff, who explains that the federal
Crown agreed to diversion because of numerous potential Charter
breaches by police.

"They are effectively ungoverned," says Sederoff. "Police know this,
especially drug officers. From their perspective, they will either get
the house, or the conviction, or both."

The increase in attempts to seize property in suspected grow-ops, both
by the provincial and federal Crown, will result in more of a backlog
in the courts, says defence lawyer Peter Zaduk.

"Instead of a one-day trial for a grow-op, they will fight it tooth
and nail. They don't want to lose their home," says Zaduk, who has
acted for defendants in dozens of grow-op proceedings.

A spokesman for the Ministry of the Attorney General says there is no
policy to try to seize property in every grow-op proceeding.

"All of our cases are unique," says Brendan Crawley. "Any decisions
are made on an individual case-by-case basis and dependant on the
facts of that particular case. An independent reviewing authority
reviews all referrals to ensure each meets the statutory criteria of
the CRA."