The Ministry of the Attorney General has increased its use of sweeping provincial civil forfeiture powers in the past year to seize assets, including people’s homes, even if criminal proceedings have been stayed or withdrawn because of Charter violations.
The increase in applications under the Civil Remedies Act has led to suggestions that the ministry is effectively condoning police misconduct and unfairly using its powers as a “cash grab” in a manner that is not proportional to the alleged offences.
The civil forfeiture powers were enacted by the former provincial Conservative government in December 2001 and originally called the Remedies for Organized Crime and Other Unlawful Activities Act.
The act permits the province to seize assets if it can show on the balance of probabilities the assets were acquired directly or indirectly “in whole or in part” as a result of any illegal activity.
Renamed the Civil Remedies Act by the Liberal government, the legislation withstood a challenge this spring in the Ontario Court of Appeal, which found it did not encroach on the federal government’s criminal-law power.
Attorney General Michael Bryant spoke out against the legislation in 2001 when he was an opposition MPP. He suggested it could be unconstitutional and would not be effective in seizing the assets of actual organized crime groups. (Bryant voted in favour of the bill when it was passed in the legislature three months after the Sept. 11, 2001 terrorist attacks.)
As attorney general, however, Bryant has been an enthusiastic supporter of the legislation and told The Toronto Star last month that the Court of Appeal decision provided an opportunity for an “exponential growth,” in the use of the seizure powers. In response to a recent critical editorial in The Globe and Mail, the attorney general dismissed suggestions that the law was a “blow” to civil liberties, and said there were no violations of rights because only property was being seized.
A report issued recently by the attorney general’s office stated that $3.6 million in property has been seized in the past four years in 170 proceedings. Nearly $1 million has been distributed to crime victims and more than $900,000 transferred to municipal police forces.
In negotiations with someone facing a forfeiture hearing, the civil branch of the ministry will normally offer respondents five per cent of assets to avoid a costly court hearing.
When the provincial Conserv-atives introduced the legislation in 2001, they stressed that the bill was to be used to fight organized crime. But Toronto defence lawyer Darren Sederoff says the forfeiture hearings are almost exclusively related to marijuana grow-op investigations, and are targeting low-level people involved in the operation. “They are going after the gardeners,” says Sederoff. “This is a cash grab to fill the government’s bank accounts and to put out press releases.”
“The province has become a bottom feeder,” suggests Paul Burstein, who acted for the Criminal Lawyers’ Association as an intervener in the Chatterjee case this year that upheld the Civil Remedies Act. Robin Chatterjee is seeking leave to appeal to the Supreme Court of Canada.
The civil hearings are a “dilution of the burden of proof,” says Burstein, noting there are already powers in the Criminal Code to seize “real proceeds of crime,” if there is a criminal conviction.
While the Charter does not protect property rights, Burstein disagrees with the attorney general’s contention that there is no infringement of civil liberties when the state seizes someone’s home.
“There is no proportionality analysis,” in applying these powers, says Burstein.
A ruling last month by Superior Court Justice Rose Boyko upheld the seizure of a $265,000 home in Markham from a 60-year-old man accused of running a small grow-op in his residence. The province netted $5,000 after it sold the home and re-paid the mortgage holder.
The man was represented by Sederoff, who explains that the federal Crown agreed to diversion because of numerous potential Charter breaches by police.
“They are effectively ungoverned,” says Sederoff. “Police know this, especially drug officers. From their perspective, they will either get the house, or the conviction, or both.”
The increase in attempts to seize property in suspected grow-ops, both by the provincial and federal Crown, will result in more of a backlog in the courts, says defence lawyer Peter Zaduk.
“Instead of a one-day trial for a grow-op, they will fight it tooth and nail. They don’t want to lose their home,” says Zaduk, who has acted for defendants in dozens of grow-op proceedings.
A spokesman for the Ministry of the Attorney General says there is no policy to try to seize property in every grow-op proceeding.
“All of our cases are unique,” says Brendan Crawley. “Any decisions are made on an individual case-by-case basis and dependant on the facts of that particular case. An independent reviewing authority reviews all referrals to ensure each meets the statutory criteria of the CRA.”