Winnipeg Free Press - PRINT EDITION

Seizure law too harsh

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Anything bought with money generated by crime can and should be seized by government because no one should profit from illegal activity.

Everyone can agree with those principles and the laws that support them, but some provincial governments in Canada have shown poor judgment and excessive zeal in how they are enforced.

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(DALE CUMMINGS / WINNIPEG FREE PRESS)

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Several cases in Manitoba, in fact, cry out for a review of the legislation that gives the state too much power in seizing the assets of people who may have committed minor crimes, or whose offences are not directly related to the property seized. Sometimes the value of the confiscated property is grossly disproportionate to the offence itself.

Several examples of such lopsided justice were outlined by Free Press reporters James Turner and Mary Agnes Welch in 49.8 on Saturday.

In one case, a 51-year-old man charged with cultivating marijuana in his home is not only facing criminal prosecution, he could also lose his house under the province's five-year-old Criminal Property Forfeiture Act.

The confiscation of his home would be justified if he was running a large criminal operation and if the proceeds had been used to purchase the property. The facts, however, are it was a tiny two-light marijuana grow operation that produced enough pot for his personal use, which he said included medical purposes.

Equally offensive, however, is the fact the province can seize his home even if he is acquitted, or if the judge imposes a minor fine. It is fundamentally wrong that an individual could lose his life-savings over a relatively minor infraction.

Another dangerous precedent was set when the province seized the home of a man before he pleaded guilty to sexual assault involving a teenager. The crimes occurred in the home, but it's a weak basis for triggering the forfeiture legislation. It also raises questions about other forms of property -- such as a white-collar business -- that could be seized if a crime was committed by the owner.

The government so far has avoided this kind of prosecution, preferring to target individuals who frequently lack the resources to fight back.

In British Columbia, which has a reputation for being the most aggressive of the provinces in applying its forfeiture law, the province seized the agricultural land of a man who was ultimately acquitted of cultivating marijuana.

As in Manitoba, the criminal guilt or innocence of a suspect is often irrelevant because once a prosecution is started, the onus is on the individual to prove he is innocent. Guilt is determined on a balance of probabilities -- the civil test -- rather than the more onerous "innocent until proven guilty beyond a reasonable doubt."

The Supreme Court of Canada has upheld provincial forfeiture laws, but like most Canadians, it may have assumed governments would exercise restraint and good judgment.

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(DALE CUMMINGS / WINNIPEG FREE PRESS FILES)

The federal proceeds of crime law is more vigorous in its application, but also fairer. It targets only major criminals, such as money launderers or major drug traffickers where profits are clearly related to the crime.

Manitoba's recent decision to list the Hells Angels as a criminal organization, which will make it easier to seize the property of individual members, is just the latest in a series of laws that have increased the power of the state, while diminishing the normal checks and balances designed to protect the rights of the individual.

These laws have been enacted under the guise of protecting society and deterring crime, but they have reached too far and trampled the principles of due process and fair play.

The Manitoba government needs to review its forfeiture law to ensure it is achieving its intended goal because, at this point, it is putting a lot of people at risk for penalties that are often far worse than the crime.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition February 25, 2014 A8

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Updated on Tuesday, February 25, 2014 at 8:07 AM CST: adds image

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