Pubdate: Thu, 07 Dec 2000
Source: National Post (Canada)
Copyright: 2000 Southam Inc.
Contact:  300 - 1450 Don Mills Road, Don Mills, Ontario M3B 3R5
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Author: Karen Selick

ONTARIO WANTS TO PUT GRAB ON PROPERTY RIGHTS

James Flaherty, Ontario's Attorney-General, yesterday introduced 
legislation allowing police officers to seize assets, without notice and 
without laying charges, from persons suspected of organized criminal 
activity. Cash, vehicles, boats, houses or anything else an officer 
suspects might be proceeds of crime will be subject to confiscation.

This appears to be the latest in a series of new measures designed to 
demonstrate how tough Ontario Tories are on law-and-order issues. However, 
citizens have a right to demand respect for the law, not only from common 
criminals but also from those who govern us. Sadly, Mr. Flaherty's proposal 
lacks this respect in several ways.

First, it deliberately encroaches on the field of criminal law, an area 
that Canada's constitution assigns to the federal government. Ontario 
apparently believes it can get around this problem by labelling its scheme 
a "civil" (as opposed to a "criminal") asset forfeiture plan.

But this leads directly to the proposal's second mockery of the law: its 
reduced standard of proof. In criminal cases, guilt must be proven beyond a 
reasonable doubt. A civil forfeiture law will require proof only on the 
balance of probabilities. The result could well be that individuals 
acquitted of a criminal offence under federal law will nevertheless forfeit 
their property to the Ontario government. Indeed, it could affect people 
who are ultimately never charged criminally.

The third departure from time-honoured legal tradition lies in the 
proposal's reverse onus. Under criminal law, a person is presumed innocent 
until proven guilty. Under this proposal, there would be a virtual 
presumption of guilt. Possession, as the old saying goes, is nine-tenths of 
the law. The property owner would have to prove himself innocent to get his 
property back.

In musing about this plan in May, Mr. Flaherty made it abundantly clear he 
intends to adopt an "act first, ask questions later" approach: "You go in 
quickly without notice, grab the assets, and then we can have a discussion 
in court about whether the assets were purchased with dollars from the drug 
trade or dollars from smuggling people into Canada or dollars from 
prostitution."

He called this the "sophisticated approach." I suppose that's one way to 
describe it. When you've confiscated the assets your opponent will need in 
order to mount a legal defence, then tell him flippantly, "See you in 
court," you certainly appear to have covered all your bases.

The Tory proposal, released in a report last week, strongly resembles the 
approach taken in the United States, where civil asset forfeiture laws have 
come into vogue over the past two decades. At a Toronto conference in 
August, U.S. and European experts on asset seizure gathered to exchange 
tips. Sources in Mr. Flaherty's office say the conference proved forfeiture 
"works great."

Of course, working great depends on your goals. Asset forfeiture may indeed 
work well if the goal is to divert great gobs of tainted money from the 
coffers of organized crime into the coffers of the state. However, if any 
subordinate goals also have to be met -- little things such as protecting 
the rights of the innocent, or preventing the transformation of a free 
country into a police state -- then asset forfeiture laws may not work so well.

In fact, for everyone except the government departments and police forces 
that have been raking in billions of dollars annually, the U.S. experience 
with asset forfeiture has been one long nightmare. It has seen the wrongful 
confiscation of property from vast numbers of innocent people who can't 
afford the legal fees to seek the return of their assets, the deaths of 
innocent people in seizure raids, the diversion of police resources away 
from non-gang-related crimes that don't produce financial rewards for the 
police, and the corruption of police officers.

Jarret B. Wollstein, associate editor of The Financial Privacy Report, 
reported as far back as 1993 that 5,000 seizures of cash, cars, homes, 
jewellery, bank accounts and businesses occurred in the U.S. every week. In 
a study by the Pittsburgh Press, 80% of those whose property was seized by 
the federal government were never charged with a crime.

Drug-sniffing dogs have routinely been used to justify the confiscation of 
cash from travellers at airports or from motorists stopped on U.S. highways 
for minor traffic violations. Yet the dogs' reaction is far from conclusive 
evidence of wrongdoing. Several studies have shown that between 80% and 96% 
of all the bills in circulation in the United States test positive for 
cocaine residue.

Malibu, Calif. multi-millionaire Donald Scott, 61, was shot and killed when 
police raided his ranch, purportedly looking for marijuana. They found 
none. District attorney Michael Bradbury concluded that a "primary purpose 
of the raid was a land grab by the [Los Angeles County] Sheriff's 
Department." Officers had been told the US$1.1-million property could be 
seized if marijuana were found.

Robert Sobel, a former Los Angeles County sheriff's sergeant convicted in a 
corruption scandal, spilled the beans on how asset forfeiture laws affected 
his department. "My team seized about US$10-million to US$15-million, and 
none of it was straight," he said. "We were told, basically, if you want 
cars, you should go out and seize them. So we would ..." Officers planted 
drugs, lied and falsified reports to justify their property seizures. Some 
of the forfeiture proceeds went directly into officers' pockets.

Theft by rogue officers aside, the wisdom of giving police departments a 
financial stake in seizing private property is questionable. Gary Schons, 
former California deputy attorney-general, said: "Much like a drug addict 
becomes addicted to drugs, law enforcement agencies have become dependent 
on asset forfeitures. They have to have it."

The Ontario government may think it can avoid this problem by channelling 
alleged crime proceeds to a central fund, instead of following the U.S. 
practice of rewarding the agencies that make the seizures with a percentage 
of the take. However, Canadian police departments are well aware of how 
things have been working in the United States, and they've made it clear 
they want the same.

A 1993 Canadian Press report cited an Edmonton police superintendent 
warning that "Edmonton police will do fewer high-level drug investigations 
unless they get a cut of the money they seize ..."

There are now more than 140 civil asset forfeiture provisions in U.S. 
federal law alone. Thirty-one states have also enacted such laws. 
Congressman Henry Hyde (R-Illinois), chairman of the House Judiciary 
Committee, wrote a 1995 book, Forfeiting Our Property Rights in which he 
called asset forfeiture laws "terribly unjust" and "wrong."

"It must be stopped," said Mr. Hyde, whose campaign for statutory reform 
began more than seven years ago. After vehement opposition from the U.S. 
Justice Department and police organizations, a feeble reform bill was 
passed in April, 2000. U.S. civil liberties lawyers say it's too 
watered-down to help much.

If this is the situation in the U.S., where property rights are enshrined 
in the constitution, we can only expect the abuses to be worse in Canada, 
where we have no such constitutional protection.

Conspicuously absent from the report Mr. Flaherty released last week 
(Lessons Learned -- A Summary Report on Ontario's Organized Crime Summit) 
is even a shred of evidence that civil asset forfeiture laws have anywhere 
reduced the volume of organized criminal activity. On the contrary, 
evidence from other sources indicates the illegal drug business has grown 
almost unabated in the United States since these laws took effect.

In a paper produced for the Law Commission of Canada in April, 1999, 
Professors Margaret E. Beare and R.T. Naylor of York University's Nathanson 
Centre for the Study of Organized Crime and Corruption concluded: "Although 
the entire notion of controlling crime by taking away the capital and the 
motivation is superficially appealing, there is no proof in logic or in 
practice that it actually works. There is, however, ample proof that it can 
pose a threat to civil liberties and civilian control over police forces."

If Mr. Flaherty proceeds with his plan to introduce civil asset forfeiture, 
Ontarians should stop worrying about what illegal drugs our welfare 
recipients are using and start worrying about what mind-destroying 
substance our Attorney-General has been smoking.
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