Pubdate: Tue, 23 Mar 2010
Source: Times & Transcript (Moncton, CN NK)
Page A:10
Copyright: 2010 New Brunswick Publishing Company
Contact: http://timestranscript.canadaeast.com/onsite.php?page=contact#B
Website: http://timestranscript.canadaeast.com/
Details: http://www.mapinc.org/media/2660
Author: Craig Babstock
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

CIVIL FORFEITURE ACT: PROTECTION OR BREACH OF RIGHTS?

Attorney General Says Individual Rights Protected

New Brunswick's attorney general says the Civil Forfeiture Act will 
help protect the community from crime, but not at the expense of 
individual rights.

Kelly Lamrock introduced the new act last month in the legislative 
assembly and it could become law during the current session. The act 
will give the attorney general the power to apply to seize property 
that was acquired through or used in unlawful activity even if no one 
has been charged with a crime.

"There has been a growing concern that, in some cases, there can be a 
piece of property that is clearly being used for illegal activity but 
the letter of the law makes it difficult to charge individuals," said 
Lamrock, when he introduced the legislation last month. "The classic 
example is a drug house in a neighbourhood where there can be many 
occupants, many of whom may not have been charged, but the home is a 
safe haven for drug activity, nonetheless. This new act will make it 
easier for the attorney general to seize the house itself, even after 
the drug operation has been shut down, sell the property and use the 
proceeds to fight crime."

The act will apply to land and personal property, including cash, and 
can be applied to unlawful activity up to 10 years prior to it coming 
into force. The unlawful activity can relate to the Criminal Code, 
federal drug legislation or provincial law.

The act will provide protection to innocent persons with interests in 
the property being forfeited, including lenders and mortgage holders.

Lamrock was unavailable for an interview yesterday but, in an opinion 
piece submitted to the Times & Transcript, he says the act should 
address the frustrations he's heard expressed by constituents in his 
Fredericton-Fort Nashwaak riding.

"When I knocked on doors in parts of my riding over the past number 
of months, people told me they felt abandoned by government when they 
see needles and drug paraphernalia strewn around where their kids 
play," he says. "They feel that no one can stop it. They are even 
angrier at landlords who are happy to pocket the money and not ask 
what's happening in their properties, because they don't have to live there."

Both the attorney general and his predecessor Mike Murphy have used 
the examples of people selling drugs out of their houses or producing 
and distributing child pornography out of their homes, as the type of 
crimes they want to target with this legislation.

The act is not without its detractors. One recent Times & Transcript 
reader in Bathurst wrote a letter to the editor in which he expressed 
concern that this new legislation could lead to widespread abuse by 
government and police.

Progressive Conservative justice critic Jody Carr has heard similar 
fears from constituents.

"We've received a number of comments from people afraid the 
government is attempting to take people's rights away," says Carr.

The justice critic says he likes the proposed legislation in theory 
but has some concerns about it.

"We support the intent to provide tools to prosecutors and police for 
combating crime," says Carr. "But we have serious concerns about the 
application of this legislation and the impact on people's civil rights."

For example, Carr says the act allows people to be accused of 
unlawful activity whether charges are laid, withdrawn, or never laid at all.

The Tories asked the government to delay the second reading of the 
act after it was introduced so they can get a briefing from the 
Justice Department, and Carr said he hopes that happens this week. He 
says he's sent the legislation to a couple of law professors and he's 
also doing some research on the act.

Carr says it's important to make sure the act won't allow things to 
happen that were not intended.

"We need to protect ordinary people's civil rights," he says.

Lamrock says the new law will not let that happen because it has 
safeguards built in. For example, police can't simply seize items. It 
must also be proven in court that the item is being used for an 
ongoing criminal activity.

Also, property owners have a right to be notified of the charge and 
to defend themselves and clauses protect owners who could not have 
known of the illegal activity.

Lamrock also says the law doesn't allow for seizure of every property 
where crime happens, so drivers won't lose their cars for speeding. 
The Crown must prove the property is instrumental in an ongoing 
criminal activity.

Also, courts cannot approve a seizure where the property taken is 
disproportionate to the seriousness of the crime. Lamrock says the 
Supreme Court of Canada has already ruled that forfeiture laws within 
these parameters are consistent with the Charter.

Similar civil forfeiture legislation is already in place in the 
United States, Australia and the United Kingdom and several 
provinces, including Ontario, B.C., Manitoba, Alberta, Quebec and Saskatchewan.

Ontario was the first province in Canada to introduce this kind of 
legislation with its Civil Remedies Act and the legislation has 
withstood court challenges. According to the Ontario attorney 
general's office, in June 2005 a constitutional challenge to the act 
was dismissed by Ontario Superior Court which ruled the civil 
forfeiture of property does not infringe on the Charter of Rights and 
Freedoms. In 2007, Ontario's Court of Appeal upheld the lower court's decision.

Ontario's civil forfeiture law allows the attorney general to ask the 
civil court for an order to freeze, take possession of and forfeit to 
the Crown, property that is determined to be a proceed or an 
instrument of unlawful activity. Civil forfeiture legislation focuses 
solely on the connection between property and unlawful activity and 
is not dependant on any criminal charges or convictions.

 From November 2003 to last November, a total of $11.2 million in 
property was forfeited to the Ontario Crown through this legislation. 
The province also has approximately $40 million in property frozen 
pending the completion of civil forfeiture proceedings.

Under the act, the Ontario attorney general has successfully frozen 
or had forfeited several biker clubhouses, crack houses, vehicles 
used for street racing, almost 50 properties used as marijuana 
grow-ops and much more. Millions of dollars generated for the 
government from the sale of that property has been used for grants 
for law enforcement agencies and compensation for victims of crimes.

In August 2008, British Columbia's Public Safety Department released 
a status report two years after the creation of the Civil Forfeiture 
Office and it gave the program a positive review.

Between April 2006, when the B.C. Civil Forfeiture Act came into 
effect, and June 2008, 166 cases were referred to the forfeiture 
office and all files resulted in either settlement or forfeiture. 
Almost $4.5 million in property was forfeited and $1.1 million was 
paid out in crime prevention grants and compensation to victims.
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