THE UNFAIRNESS OF THE FORFEITURE LAW

Over the past four years, police in Ontario have seized $3.6-million
and frozen another $11.5-million in assets under the province's civil
forfeiture law. Michael Bryant, the provincial Attorney-General, is
proud that this has happened under his government. He shouldn't be.

The notion of civil forfeiture, which is used to go after property
and funds directly tied to criminal activity, has a certain populist

appeal. In Ontario, legislation brought in by the previous
Conservative government allows civil courts to freeze, take
possession of and forfeit to the Crown assets

acquired through or likely to be used for criminal activity. The
assets may then be distributed to individuals or communities
victimized by crime.

It sounds like a win-win - criminals losing their assets while their
victims are compensated for their hardship. But in a justice system
that revolves around presumed innocence, civil forfeiture changes the
rules. It enables the Crown to take suspected criminals to a civil
court when the evidence is not strong enough to hold up in a criminal
one. There, the Crown doesn't need to prove their guilt beyond a
reasonable doubt; it needs only to establish its case on a balance of
probabilities. Even before it achieves that minimal standard, the
province is able to freeze property until the court date, potentially
bankrupting individuals before demonstrating that the assets it has
seized were ill-gotten.

Take the case of Robin Chatterjee, sure to give pause to anyone
concerned with civil liberties. In 2003, Mr. Chatterjee was stopped
by police while driving a car missing its front licence plate. It
turned out he had breached bail conditions. Police searched his car
and found $29,020 in cash along with materials commonly used in
marijuana grow-ops. What they did not find was any marijuana, meaning
there were no grounds on which to lay criminal charges. So instead,
the provincial Attorney-General took away the car's contents - Mr.
Chatterjee's property - under the civil forfeiture law.

Jim Flaherty, who introduced the law in question when he was
Ontario's attorney-general, described it at the time as an "act
first, ask questions later" approach. But the provincial Liberals,
eager to boost their law-and-order credentials, have been doing much
more acting than their predecessors. "We've sought to use [the
powers] in ways that were consistent with the legislation, but might
not have been in Flaherty's mind when they introduced it," Mr. Bryant
boasted to the Toronto Star last week in regard to a government
report that said 170 forfeiture cases have been launched in the past
four years. "When we came into office, from my perspective it seemed
as if the bill hadn't really been used much at all."

Better it should have stayed that way. Seizing the proceeds of crime
is acceptable, and redistributing it to victims or victimized
communities is noble. But that was already possible before Mr.
Flaherty's law came into effect - provided guilt had been proven in a
criminal court. The difference is that now the system has been turned
upside down by reversing the burden of proof such that the onus is on
the accused to prove that they are not guilty.

Following Ontario's lead, five other provinces have introduced
similar legislation. Even if they are not quite as gung-ho as Mr.
Bryant, this is a major blow to Canadians' civil liberties and
property rights. When cases are not strong enough, the Crown should
either abandon them or continue to build them. It shouldn't do an end
run around the criminal justice system.