Pubdate: Thu, 21 Aug 2014
Source: National Post (Canada)
Copyright: 2014 Canwest Publishing Inc.
Contact: http://drugsense.org/url/wEtbT4yU
Website: http://www.nationalpost.com/
Details: http://www.mapinc.org/media/286
Author: Marni Soupcoff
Note: Marni Soupcoff is executive director of the Canadian 
Constitution Foundation, www.theccf.ca. The CCF is representing Bruce 
and Donna Montague in their legal fight to save their home.
Page: A10
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)

ONTARIO'S CIVIL-FORFEITURE RACKET

This backward legal process is being used regularly - even when the 
province can't make a criminal charge stick

In what is just the latest example of the havoc that civil forfeiture 
laws wreak on property rights, the Ontario government has gone after 
the house of an Oshawa couple even though all criminal charges 
against the pair were dropped. As reported by the Toronto Star, when 
police raided the home of Denis and Margaret Deneault in August 2006, 
they found illegal drugs, including hashish, cocaine and ecstasy. The 
Deneaults were charged, and the police bragged about their conquest 
in multiple press releases. But here's the crucial point: The 
Denaults were never found guilty of any drug (or other) crimes 
related to the police's storming of their house. In 2009, the 
government abandoned its prosecution of the couple for unknown 
reasons (this time with no crowing press releases). And that should 
have been the end of the matter.

But it wasn't. The province couldn't help itself from jumping in and 
seeking to grab some easy cash from the couple under Ontario's Civil 
Remedies Act, which allows government to seize property deemed to be 
a proceed or instrument of crime, even without any conviction or charges.

The sad thing is that a judge agreed with the province, and ordered 
the Deneaults to fork over $55,792 (60% of the value of their house) 
to the province.

As far as due process goes, such seizures are a serious threat, 
especially since the province doesn't have to provide targeted owners 
with an attorney as it would in a criminal prosecution. An owner who 
was completely innocent of any wrongdoing but unable to afford a 
lawyer would have no way to defend himself against the seizure of his 
house (or car, or equipment, or cash etc.). Denis Deneault told the 
Star: "You can fight it, but the lawyers will cost you more than [the 
government is] asking for."

There is no question that we want criminals punished. But we don't 
want Ontario seizing millions of dollars from its citizens without 
adequate proof that those whose property is being taken really have 
broken the law - and that the price being exacted is proportionate to 
what they've done. That's what our Constitution demands. Yet, as 
cases such as this one illustrate, the government is not being 
required to meet those standards and need only convince a judge of 
wrongdoing on a "balance of probabilities" standard. So even if a 
court has reasonable doubts about an owner's guilt - doubts that 
would demand the court toss any criminal charges against him - it can 
still authorize a seizure of cash or goods of huge value, including 
the owner's home.

The justification is sometimes offered that Ontario's use of civil 
forfeiture is worth it because the province distributes the proceeds 
to victims of crime. What these defenders of civil forfeiture usually 
fail to mention is that the province also distributes the proceeds to 
itself - or rather to the very law enforcement agencies that are 
tasked with rounding up future forfeiture targets. As of 2007, 
Ontario had provided more than $900,000 of seized forfeiture money to 
the police (close to the same amount it had provided to victims). 
Clearly, this creates unhealthy incentives for law enforcement to 
"police for profit," as the U.S. public interest law firm the 
Institute for Justice has put it.

But perhaps the most frustrating part of all, and the part that most 
offends Canadian constitutional protections, is made manifest when 
civil forfeiture is used to exact a price from an offender that is 
out of all reasonable proportion to his crime. That's what the 
Canadian Constitution Foundation is fighting in the case of former 
gunsmith Bruce Montague. He purposely and publicly let his gun and 
business licenses expire to protest changes in Canada's firearms 
laws. He was charged, found guilty and served six months in jail for 
this crime. Yet, for Ontario, that wasn't enough. The province is 
seeking to seize everything Mr. Montague has left: his gun collection 
(valued at approximately $100,000) and the family home he shares with 
his wife Donna, which he built himself. And the government says it 
doesn't even have to prove its case beyond a reasonable doubt because 
this is just a civil matter, and not a criminal penalty.

Not only is this treatment of Mr. Montague unfair - unconscionable, 
even - it's unconstitutional. And stories such as the Deneaults' are 
a reminder that this backward legal process is being used on a 
regular basis, even in cases where the government doesn't have enough 
proof to make a criminal charge stick.

It's time to expose these civil forfeiture practices for what they 
are: government actions that treat citizens like cash cows, while 
violating their Charter rights.
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MAP posted-by: Jay Bergstrom