Pubdate: Wed, 05 Sep 2007
Source: National Post (Canada)
Copyright: 2007 Southam Inc.
Contact:  http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Shannon Kari, National Post
Bookmark: http://www.mapinc.org/mjcn.htm (Cannabis - Canada)
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

ORGANIZED CRIME LAW MISSES ITS TARGET: CRITICS

Low-Level Criminals Usually Prosecuted

An Ontario law that permits the province to seize assets without 
laying a criminal charge if there is evidence of a link to illegal 
activity is facing a potential constitutional challenge in the 
Supreme Court of Canada.

A former Ottawa university student who had $29,000 in cash seized by 
police near his family's Toronto-area home in 2003 is asking the high 
court to hear an appeal of a decision this spring by the Ontario 
Court of Appeal that upheld the provincial Civil Remedies Act.

The legislation encroaches on the federal government's exclusive 
jurisdiction over criminal law and is unconstitutional, say lawyers 
for Robin Chatterjee in a written argument filed in the Supreme Court 
on Aug. 30.

British Columbia, Manitoba, Saskatchewan and Alberta have all enacted 
similar civil forfeiture laws since the Ontario legislation came into 
effect in 2002 and the appeal by Mr. Chatterjee is seen as a test case.

Mr. Chatterjee was arrested by police after a traffic stop. Police 
said they smelled marijuana and discovered the cash after searching 
the car. No marijuana was found and Mr. Chatterjee was not charged 
with an offence.

The Criminal Code contains provisions to seize proceeds of crime if 
someone has been convicted of an offence.

The Ontario legislation permits the province to seize property 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.

"Our position is that this can be a dangerous tool," said James 
Diamond, co-counsel for Mr. Chatterjee. "It circumvents the 
constitutional safeguards of a criminal proceeding," the Toronto lawyer said.

The legislation was originally called the Remedies for Organized 
Crime and Other Unlawful Activities Act when it was introduced by the 
Conservative government in Ontario in 2001.

The Ontario government issued a report last week that said 170 
forfeiture proceedings have been launched in the past four years. 
Nearly $4-million in property has been seized. Almost $1-million has 
been distributed to victims of crime and $950,000 has been 
transferred to municipal police forces.

But most of the attempts to seize assets have not been directed 
against organized crime leaders, say lawyers who have defended people 
in forfeiture hearings.

"It's lower-level marijuana grow-ops," said Toronto lawyer Ryan Naimark.

His client Yiu Ngau Lok is appealing an Ontario Superior Court ruling 
last month that approved the seizure and sale of the $265,000 home 
that he purchased in 2000, in a community just north of Toronto.

The 60-year-old widower was accused of running a grow-op in his home 
that allegedly generated $40,000 in annual profit. Federal 
prosecutors eventually dropped the criminal charges.

The province netted $5,000 after it sold the property and re-paid the 
bank that issued the mortgage.

The hearing to determine whether the seizure and sale was legitimate 
took five days in court and was not a good use of the Crown's 
resources, said Mr. Naimark. He called it "draconian" for the 
government to be able to "take someone's home" when there is no 
criminal conviction.

Ontario Attorney-General Michael Bryant said last week the province 
intends to increase its use of its civil forfeiture powers.

As an opposition MPP, Mr. Bryant was very critical of the legislation 
when it was introduced by the Conservative government.

"The bill may end up literally being an illegal, unconstitutional 
bill. In that sense, this will have been an enormous waste of time 
and an enormous waste of money, and at the end of the day the people 
of Ontario will hardly have been served by this public relations 
stunt," Mr. Bryant said in the legislature in May 2001.

"The problem with a provincial property approach to organized crime 
is that the bad guys, their property, the assets and the proceeds of 
crime are likely not in the province of Ontario," the Liberal MPP 
added. "This bill will not get at that money. This bill will not be 
able to get at those assets."

Mr. Bryant eventually voted in favour of the bill when it was passed 
by the legislature three months after the September 11 terrorist 
attacks in the United States.
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MAP posted-by: Jay Bergstrom