Editorial: This is quackers

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The Supreme Court of Canada has backed the province’s Civil Remedies Act, or as we like to call it, the If It Walks Like a Duck Act.

The unanimous ruling arises from Chatterjee v. Ontario, a case that pondered the question of whether the act, which authorizes the forfeiture of proceeds of unlawful activity, is ultra vires because it encroaches on the federal criminal law power.

“In my view the CRA is valid provincial legislation,” wrote Justice Ian Binnie for the court.
In March 2007, Chatterjee was stopped by York Regional Police because his car lacked a front plate. It was discovered that he was in breach of recognizance, which required him to reside in Ottawa but he was living in Thornhill.

Chatterjee was arrested, and during a search of his car, officers came upon $29,020 in cash, an exhaust fan, a light ballast, and a light socket. The cops said the items smelled of marijuana, though no drug was found.
Chatterjee was not charged with any offence in relation to the money, items, or any drug-related activity.

But on May 13, 2003, the attorney general brought an interlocutory motion under ss. 4 and 9 of the CRA to preserve the seized money and equipment, and a preservation order was granted.

Three days later the AG brought an application under ss. 3 and 8 of the CRA for forfeiture of the seized money as proceeds of unlawful activity and the items as instruments of unlawful activity. Chatterjee responded by challenging the act’s constitutionality.

“Each level of government bears a portion of the costs of criminality and each level of government, therefore, has an interest in its suppression,” wrote Binnie.

But the CRA doesn’t require a criminal conviction, just a judge to give permission if based on a balance of probabilities it is demonstrated that the property constitutes proceeds of crime - which is not as high a standard as the criminal test of proof beyond a reasonable doubt.

As Toronto defence lawyer Leora Shemesh tells Robert Todd in our page one story: “It sort of leaves open the possibility that if police get things wrong, they can still make it right by taking people’s monies, and homes, and cars, and so forth. So you’re being punished in the eyes of the law, or being criminalized, without actually being proven guilty.”

And Chatterjee’s lawyer James Diamond makes an excellent point suggesting that cash-strapped people facing property forfeiture won’t qualify for legal aid which could make it extremely difficult to afford a lawyer. That certainly runs counter to access to justice.

Finally, defence lawyer Peter Zaduk raises an interesting potential side effect: backlog in the courts because “there’s lots of people that might make a deal and plead guilty who won’t do that now because they stand to lose their houses if they’re convicted.”

“Crime imposes substantial costs on provincial treasuries,” wrote Binnie. “Those costs impact many provincial interests, including health, policing resources community stability, and family welfare.

“It would be out of step with modern realities to conclude that a province must shoulder the costs to the community of criminal behaviour but cannot use deterrence to suppress it.”

Agreed. But Shemesh has the final sensible word: “I just think the two systems ought to work more efficiently together. And I just think they’re on different railroad tracks, so to speak.”
- Gretchen Drummie

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