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Proceeds-Of-Crime-Law Challenge Could Cost Provinces Millions
Pubdate: Mon, 10 Nov 2008
Source: Ottawa Citizen (CN ON)
Copyright: 2008 The Ottawa Citizen
Contact: http://www.canada.com/ottawacitizen/letters.html
Website: http://www.canada.com/ottawacitizen/
Details: http://www.mapinc.org/media/326
Author: Janice Tibbetts, Canwest News Service
Bookmark: http://www.mapinc.org/af.htm (Asset Forfeiture)
PROCEEDS-OF-CRIME-LAW CHALLENGE COULD COST PROVINCES MILLIONS
Case By Former Carleton Student Tests Breadth Of Ontario's
Jurisdiction
Eight provinces will gang up on a former Carleton University student
in the Supreme Court of Canada on Wednesday as it considers whether
provincial governments have the constitutional power to seize the
proceeds of crime.
Lawyers for Robin Chatterjee will argue that crime is a federal
responsibility and therefore the Ontario government's 2001 law forcing
the forfeiture of everything from houses to cash is outside provincial
jurisdiction.
If the court sides with Mr. Chatterjee in his quest to retrieve
$29,000 in cash, provinces with proceeds-of-crime laws could be forced
to return seized property.
"The forfeiture of property tainted by crime is, in Canada, a matter
of federal criminal law," Mr. Chatterjee's lawyers said in a written
Supreme Court submission that frames the appeal as an important test
of federal and provincial divisions of power.
Nova Scotia, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and
British Columbia all have forfeiture laws, according to arguments
filed in the Supreme Court. All provinces, except for New Brunswick
and Prince Edward Island, are intervening on Ontario's side, which
contends that seizing the proceeds of crime is within its power to
regulate property and civil rights.
When police confiscated Mr. Chatterjee's knapsack of cash in March
2003, he had just moved out of his Ottawa apartment and was en route
to his parents' Toronto home. He was stopped because his car was
missing a front licence plate. Police also found a light ballast, one
light socket and an exhaust fan -- items that law enforcement officers
contend could be used for marijuana grow operations.
Police did not arrest the young man because they said they did not
have enough evidence. Ontario's forfeiture law, however, does not
require a criminal conviction.
The province will argue in the Supreme Court that its Civil Remedies
Act, introduced in 2001 to combat organized crime, is not criminal
law, but rather a civil process designed to compensate victims of
crime and help with crime prevention by making it less attractive to
pursue.
"The creation of criminal offences and the punishment of crime is
within the exclusive competence of Parliament," said an Ontario court
brief. "However, the adoption of measures to prevent crime is not a
matter of exclusive federal jurisdiction."
Two lower courts sided with the Ontario government in the case,
including the Ontario Court of Appeal, which ruled in May 2007 that
the criminal law is not a "watertight compartment" that precludes
provincial involvement.
The province says that the Ontario law steers clear of federal
jurisdiction because it "has nothing to do with identification,
search, arrest, detention, charging, or conviction of anyone, nor does
it impose any penalty, fine or other punishment."
A key issue in the appeal is whether the seizure of property
constitutes punishment. The Ontario government says it does not,
because it is confiscating something that never rightfully belonged to
the person in the first place.
The federal government, an intervener in the case, says forfeiture
laws are an example of "co-operative federalism in response to a
difficult and pressing social problem."
There is also a federal forfeiture law, but it requires a criminal
conviction.
The B.C. Civil Liberties Association, intervening on Mr. Chatterjee's
behalf, warns the Supreme Court to be cautious of legislation "that
permits the provinces to exercise coercive state powers under the
guise of co-operative federalism."
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MAP posted-by: Larry Seguin