Winnipeg Free Press - PRINT EDITION

Unproven seizures abusive

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The NDP government's Criminal Property Forfeiture Act has made it state enterprise to seize the possessions of people who may not, in fact, be convicted of a crime. The unnecessary haste to pursue forfeiture of the property suspected of being used in a suspected crime is unfair and risky.

Justice Minister Andrew Swan asserts that people who choose to commit criminal acts in their vehicles or homes should be prepared to pay the price, which in civil court means a judge, who finds it more likely than not that an offence causing serious injury has been committed, is bound to award the government possession of that car or house. The rigidity of the provincial legislation gives a judge very little discretion, and contains no mechanism for compensation or return of property should a charge later prove bogus or insupportable.

Launching the civil remedy in advance of conviction places an onerous burden upon an individual charged with a serious criminal offence, and it is easy to see how someone mustering financial resources for a court date would choose not to challenge seizure of the five-year-old car. The forfeiture act permits a judge to decide that the interest of justice is not served if seizing the property causes unreasonable consequence -- a house owned by a man charged with or convicted of sexual assaulting someone in the home may not be seized if forfeiture would toss his wife or kids out in the cold. But absent that, the judge is left with little latitude if police evidence sufficiently supports a charge.

Mr. Swan notes that civil law already permits damages to be awarded to victims of crimes that may have never resulted in a charge being laid, or for cases that fail to meet the higher, criminal threshold of beyond reasonable doubt. But those rare cases also give the judge discretion to award according to the gravity of the injury. Mr. Swan's forfeiture act provides no such proportionality, it treats all property used in suspected or proven crime as an instrument of that crime.

The forfeiture act targeting property used as a tool in a crime is an evolution of law that originally attacked the profits of crime -- governments have long sought to seize the ill-gotten gains of organized crime, whether it is money, royalties or personal possessions. People fundamentally understand that principle, which has been stretched now to target property used in the commission of an offence. That extension draws a much finer line between the crime and the property, and stretches the public support for the government's law.

It's arguably justifiable to seize the vehicle of a repeat drunk driver who puts the life of every other person on the road at risk with his or her actions. It is much less valid to ask a judge to award the state possession of a house of a soccer coach who is charged with preying upon a player, who is awaiting his date in court to prove his innocence or admit to his guilt.

The state has, at its disposal, the evidence collected by police, and the law permits it to keep secret how it was collected, in order to protect an investigation, an individual or investigative techniques. There is good reason, then, to worry that charges that would pass the civil test of probabilities would fail the higher criminal test.

Mr. Swan's defence of a law that would seize property used in a crime that has not been, and may never be, proven, is reprehensible. A Charter challenge would likely say as much.

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

Republished from the Winnipeg Free Press print edition January 6, 2011 A10

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