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The long reach of the law

Do Manitoba's forfeiture laws go too far?

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Chris Bachewich is 51 years old and suspected of running out of his small house a two-light marijuana grow operation, one he says is only for personal and medicinal use.

In addition to the possibility of being punished criminally, the Manitoba government wants to take away his Alfred Avenue home, claiming it is an instrument of criminal activity. (Read police notes - 1.6MB pdf)

It’s a development that could ultimately see Bachewich join the ranks of the homeless and destitute. Court records say the house is his only asset and also his de facto "retirement plan."

This is happening despite his claims not one dime of illegally obtained cash was ever used to pay the mortgage. And he’s not yet been found guilty of any crime.

In fact, the province can still try to take it from him even if he’s never convicted.

Such is the emerging new order in ‘Friendly’ Manitoba.

Thanks to new provincial rules that significantly speed up and simplify the process, the number of civil forfeitures and the cash they net have skyrocketed in the last couple of years. Where once there were 30 or 35 forfeitures a year, ones a judge had to approve, now there are roughly 200.

$7 million seized

Forfeiture laws are still very new. They are relatively untested by top courts and could signal a significant shift in the way provinces fight crime, moving key elements into civil court rather than criminal.

University of Manitoba law professor Michelle Gallant has studied forfeiture laws across Canada and around the world and says they come with significant risks to due process.

Winnipeg defence lawyer Karl Gowenlock agrees, saying the laws are too broad and too vague and are being used against their original purpose. They also shift the burden of proof from the state to the citizen, who must prove the government claiming their possessions is not in the interests of justice.

"They (the laws) were passed in the name of fighting organized crime and taking away the ill-gotten gains of gangsters," said Gowenlock. "But in practice, these laws are just as easily used against small-time growers or innocent landlords. And we have very few decisions telling us what is and is not clearly in the interests of justice."

Forcing property owners to prove they should be able to keep what the government wants to seize pits them against a civil justice system that’s complex and expensive to navigate, Gowenlock said. Many simply give up the fight because it costs too much to go on.

"This creates two main risks," said Gowenlock. "Innocent people end up forfeiting their property when they have done nothing wrong, and... guilty people end up receiving punishments hugely disproportionate to their offence."

Gowenlock represents Bachewich but declined to discuss specifics of his case because it’s pending trial.

In the four years since Manitoba’s law kicked in, the province has seized more than $7 million in goods and cash. The proceeds are placed in a fund for crime victims and for grants to police departments. Those grants have bought everything from automated licence-plate readers to better vans for police canine units.

"Innocent people end up forfeiting their property when they have done nothing wrong."

-Defence lawyer Karl Gowenlock

The seized goods include mostly cash from drug deals or drug houses — sometimes a few hundred dollars, sometimes hundreds of thousands. The biggest cash seizure so far is $435,695.

The province has also seized farmland where marijuana was cultivated and roughly 40 other properties, usually houses and cottages used as grow-ops. A cabin in Lac Du Bonnet is about to go up for sale after the province snagged it after a grow-op bust.

Through the new fast-track administrative process, the province has taken more than 30 vehicles, including a brand-new Ford F650 truck and a Caterpillar forklift.

Suspects rarely convicted of crimes

British Columbia has used its forfeiture laws the most aggressively, gleaning $41 million in assets so far. But that province is now facing criticism the law’s reach is too wide and the process has become a cash cow. B.C.’s ombudsman as well as the B.C. Civil Liberties Association have raised concerns.

Gallant says the civil forfeiture process can undermine the traditional notion of due process that prevails in criminal court. In civil court, a citizen might not have the right to a state-appointed lawyer, might not be immune to double jeopardy and isn’t innocent until proven guilty. And the burden of proof is much lower.

In a criminal matter, the prosecution must prove its case beyond a reasonable doubt. In civil court, the test involves a balance of probabilities. That’s why, in the vast majority of civil forfeiture cases, people are rarely convicted of a related crime before the government steps in and takes their stuff.

Two years ago, Manitoba tweaked its rules, allowing it to bypass a courtroom and speedily seize assets tainted by crime as long as the asset is worth less than $75,000. That process is called administrative forfeiture, and it has raised some eyebrows.

The process allows the province to avoid making a time-consuming and costly application in civil court. Instead, if the province has a wad of cash or a vehicle seized by police, it mails a letter to the original owner and posts a forfeiture notice online. If the owner doesn’t object before the deadline, the forfeit is complete.

Gowenlock says bystanders often get ensnared in the law.

"Put aside the question of when the government can take your property without first proving you have done something wrong," said Gowenlock. "You can easily imagine how this disproportionally affects marginalized people who don’t necessarily have a stable mailing address or who have to move around a lot and would have the most difficulty finding a lawyer or commissioner of oaths."

Bodily-harm element offers broader powers

Gord Schumacher, the director of Manitoba’s criminal forfeiture division, says the province combs databases and court records for all known addresses and does its best to find the owners of cash and property before the forfeiture. The dispute process is fairly simple and, even after the deadline, owners can seek redress if they feel property has been seized unfairly.

On the civil side, where forfeiture cases worth more than $75,000 must go through the courts, Schumacher said it’s a point of pride none has gone to trial. That means they are settled in the preliminary discovery phase. In most cases, the original owners see the evidence is not in their favour and abandon their challenge, but the province has also occasionally realized the forfeiture was made in error and stepped back.

One of the most unusual uses of the five-year-old law involves a south Winnipeg soccer coach guilty of grooming a teenage player for sex.

More than a year before Stephen Skavinsky had a chance to answer the charges in court — he ultimately pleaded guilty — the province moved to seize his house, the scene of much of the sexual interference and exploitation.

Gallant has begun looking in detail at individual forfeiture cases and has found the vast majority involve grow-ops or busts in drug houses. So far, she hasn’t come across any other cases similar to Skavinksy’s, where the link between an offence and a piece of property is more tenuous and doesn’t involve organized crime or drugs.

"But there’s huge potential," she said.

That’s because Manitoba’s law has an extra element not common in forfeiture legislation elsewhere in the Western world.

Here, the government is allowed to seize property that has been used to engage in unlawful activity or that caused or was likely to cause serious bodily harm. The bodily-harm element offers the province much broader powers to seize property beyond drug dealing or gang activity.

For example, if a homeowner gets into a fight in his house, the province could conceivably seize it since it was the scene of the assault, much like in the Skavinsky case.

Schumacher said his unit has taken on very few cases that didn’t involve drugs, and it’s not in the spirit of the legislation or in the interests of justice to seize a house where an assault took place or the car of someone convicted of dangerous driving.

However, the unit has seized a car involved in a string of burglaries, and there has been one other case similar to Skavinsky’s where the province moved to seize a house where a serious sexual assault had occurred.

"The bodily-harm element is there and we’ve used it sparingly in a couple of instances, but it’s not the intent," said Schumacher.

Difficult to gauge laws' effectiveness

But how do we know forfeiture laws work?

It’s better to have that dirty money under the control of the state rather than in the hands of obvious drug dealers."

-Law professor Michelle Gallant

"At the very least, it’s better to have that dirty money under the control of the state rather than in the hands of obvious drug dealers," said Gallant. But she said it’s hard to know whether, in the long run, forfeiture laws actually do what they intended — shrink organized crime.

Most governments, including Manitoba’s, tout the total amount of cash they seized instead of reductions in gang activity. That risks shifting the priorities of law enforcement, said Gallant. Instead of cracking down on domestic violence, it’s possible police will spend more time on drug raids because they typically bring in cash. In the United States, where civil forfeiture laws are well-established, that shift did occur to some degree.

But Schumacher said Manitoba’s process is more rigorous and transparent. Departments don’t keep what they seize, and the process of granting back funds to police departments is carefully vetted. He said street intelligence and feedback from police suggest the forfeiture law is having an impact.

"The purpose of organized crime is to make money, so taking money away, that hurts," he said. "It disrupts how they do business. It takes away the life blood."
 

maryagnes.welch@freepress.mb.ca
james.turner@freepress.mb.ca

MAP: Administrative forfeitures in Manitoba

Property subject to administrative property forfeiture in Manitoba between 2003 and 2014, as reported on the provincial justice department's website.

Use the + and - controls at left — or your mouse's scroll bar, or pinch on a touch screen — to zoom in and out of the map.  The map includes data from all over Manitoba.

Click on any marker in the map below for more details on the forfeiture at that location:

Green markers show seizures valued at less than $1,000.
Yellow markers denote seizures valued between $1,000 and $10,000.
Red markers indicate seizures valued at more than $10,000.
Small purple dots mark seizures where insufficient information was available to calculate the estimated value of the items seized.

Having difficulty using the map below? Try viewing it on Google. You can also view the data on Google in table format.
 

 

 

Map notes:

Map data includes administrative forfeitures only, not ones that went through court.  Data includes forfeitures available on provincial government website.  Of 500 administrative files opened, about 400 were posted and included forfeited property; about 70 are missing from this map.

Locations given for some forfeitures were vague, so some mapped locations are estimated.

Total value of property seized is based on amounts of cash and estimated values of property as reported by police.  Where U.S. dollars were seized, the value has been converted to Canadian dollars based on exchange rates in February 2014.  Where vehicles were seized, their value was estimated, in Canadian dollars, based on Blue Book and Black Book values or averaging asking prices for similar vehicles in February 2014.

Forfeitures: Three kinds

CRIMINAL

Commonly known as the "proceeds of crime" provisions in the Criminal Code, this is where a judge can order cash related to a drug deal be confiscated after the accused is convicted. The process is rolled into the criminal case, and the cash typically goes to the federal government. But, says Gord Schumacher, Manitoba Justice’s director of the criminal property forfeiture unit, the process can take two to three years, and often criminals get their money back if they plead guilty to a lesser charge.

CIVIL

This process came into force four years ago. It allows the province to use the civil court system instead of the Criminal Code to seize property, usually cash, obtained as a result of crime or property used in the commission of a crime, such as a vehicle or a house. People who have never been convicted of a crime can have their property seized. And the rules of evidence and proof are less stringent in a civil proceeding, tipping the scales in the province’s favour. The province must go before a judge and make its case before keeping the goods. There’s a statement of claim, a statement of defence, affidavits and a discovery process. It can take months or even years, and can cost the province thousands in legal fees. That’s why the province didn’t bother pursuing hundreds of smaller forfeitures worth a few thousand dollars.

ADMINISTRATIVE

This came into force two years ago. It makes it easier and faster for the province to seize property. If the property is worth less than $75,000, the province doesn’t need to go before a civil court judge unless someone disputes the forfeiture proceedings. Instead, the province mails a notice of forfeiture to the property owner and posts a list of soon-to-be-forfeited properties online. Notices are also published in newspapers. From there, owners have about a month to dispute the seizure. There’s a fairly simple form to send in. At that point, the province can either abandon the forfeiture or flip the process into civil court, where all of the paperwork and court procedures kick in. The dispute process is a long shot for citizens. At the end of last year, nearly 500 administrative forfeiture files had been opened. Of those, only 83 dispute notices had been filed. Of those, 59 were successful and prompted the province to abandon the process. The remaining 24 files went to civil court and the province won every one.

What happens to the stuff?

Cash goes into a fund that pays for victim compensation and programming. It also gives grants to police departments across the province. Earlier this month, the province announced $1 million in grants is now up for grabs.

Vehicles are auctioned off. The province even puts some on Kijiji to spark interest in upcoming auctions. They did that recently with a seized Harley-Davidson motorcycle.

Land and houses are sold to willing buyers, often contractors willing to take on the massive repairs needed to fix grow-op damage. Manitoba Justice’s Gord Schumacher says a house typically worth $300,000 might sell for only $180,000 due to the damage. He said the province is frank about a house’s history and clear with any buyer that they must get permission from the fire commissioner prior to occupancy.

Greenhouse equipment, often worth thousands of dollars, is frequently seized and takes up huge amounts of costly warehouse space to store. Things such as fluorescent lights and fans are not hot commodities for resale, so the province donates grow-op gear to school science labs and provincial greenhouses, including one in Thompson.

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