Proposed legislation would see government seize assets of crime
Michele LeTourneau
Northern News Services
Monday, October 19, 2015
NUNAVUT
The Government of Nunavut (GN) is considering legislation that would allow it to seize property or assets that are suspected to be instruments or proceeds of illegal activity.
Marni Soupcoff, a lawyer and executive director of the Canadian Constitution Foundation based in Toronto, is skeptical about civil forfeiture legislation. |
"The main focus of the legislation is on the dealers that deal in alcohol or drugs throughout Nunavut, and going after their profits," said Justice Minister Paul Okalik. "Eight other jurisdictions in the country have been using forfeiture as a tool to stop these types of activities. They've been proven to be somewhat effective. We've been reviewing their legislation and their experiences and learned from their issues and we're moving forward with our own to try and tackle these activities in our territory."
This legislation is commonly called civil forfeiture and has become controversial in the rest of Canada, with innocent people who have had property seized suing governments in some cases. Headlines in Ontario and British Columbia tell absurd tales of a law gone wrong.
Marni Soupcoff, a lawyer and executive director of the Canadian Constitution Foundation based in Toronto, is skeptical about civil forfeiture legislation.
"You end up in situations where people who are completely innocent parties have their property taken away from them without their consent, with no compensation," said Soupcoff.
"They don't get the due process that you would expect them to get in those situations. They're not entitled to a lawyer so if they want to fight the forfeiture and they can't afford a lawyer, then they're out of luck."
More importantly, adds Soupcoff, "They don't even get the benefit of the doubt in court because the government doesn't have to meet the high burden of proof that they would have to meet in a criminal case, where normally it would have to be beyond a reasonable doubt that they would prove their case. But in these cases, because they're civil, the government just has to prove what they call a preponderance of the evidence. Really, the government just has to say, 'It's more likely than not that this property was used in a crime or was a proceed of crime.'"
She says it leaves people vulnerable.
"What's disturbing is that it leads to a situation where not only is it possible for government to end up taking property from people who have not been charged with any crime but it happens. You think, 'Oh, they wouldn't do that.' But they do and they have. We've seen examples of that in various jurisdictions."
In fact, the low threshold for proof is precisely why the GN is looking at introducing this legislation.
"It is another tool that we can use to discourage that type of (criminal) activity, activity of that nature. The Criminal Code gives us some tools but you have to prove a very high test in order for it to be effective, prove guilt. This type of legislation gives us more tools with less restrictions and allows for discouragement of that type of activity," said Okalik.
"A person would not necessarily have to be arrested, because being arrested gives you a bit of a hint that something is going to happen. We're going after the profits of the individual, so you want some unexpected behaviour on the part of the government."
Soupcoff understands the tempatation.
"Legislation like this is usually justified for a very similar reason to what we're seeing there, in terms of trying to be able to get at criminals who are highly organized, often for organized crime, for gangs, in this case for bootlegging and drugs," she said.
"The initial justifications are very tempting and it's pretty obvious why people tend to support the legislation when they hear about it from that point of view."
In fact Okalik says initial consultations are favourable.
"My officials have travelled to Rankin, Baker Lake and Cambridge Bay so far. The general consensus is there's a lot of support for this type of initiative," he said.
"There may be a couple of objections, but other than that, the large and significant majority has been very supportive of this effort."
Okalik's officials will travel to Pond Inlet and Pangnirtung, and will consult with Iqaluit, as well.
Soupcoff suggests that legislation could be formulated that would protect innocent people and their property.
"If they really felt they needed civil forfeiture legislation, if they really felt they needed to crack down on bootlegging or illegal drug dealing ... just to say fine, we'll have a forfeiture provision but it's only going to kick in if someone has been convicted of a crime." she said. "We wouldn't normally want to punish people if the government can't make a good case."
She adds, "We've seen situations where people were charged with a crime and the government wasn't able to prove its case, sometimes because there was an illegal search, an illegal seizure, so they can't prove their criminal case, what they do is they kind of get another bite at the apple and they go after the property civilly through forfeiture because it didn't matter if they didn't have enough evidence."
According to Okalik, the creation of a tip line is part of the forfeiture plan.
"For residents to call and then we'll investigate. Then we'll have to appear before a judge to prove our case, then move forward acquiring the assets of the person that is suspected of this activity," he said.
"It is illegal what these individuals are carrying out. It's another tool for residents to report what they suspect and for us to investigate and to prevent this from being too widely acceptable in our communities."
Soupcoff said in other Canadian jurisdiction, such as Ontario, funds gained from civil forfeiture often find their way back to law enforcement by way of grants and equipment. She suggests one way to have police and government less invested in a tip line would be to divert the proceeds.
"I feel like tip lines play into that view of police desperate to get as much valuable stuff as possible.
"A way to protect against that is if you are going to have civil forfeiture, ideally only after someone is convicted criminally and any money you do take it should not go to law enforcement. Make it go somewhere completely separate, schools or roads - anything that does not involve the people who are out there putting together the cases," she said.
Another pitfall of civil forfeiture legislation in other jurisdiction is that there is no process to ensure the punishment fits the crime.
"In criminal law, we have protections in place. We make sure the sentence that's given is proportionate to the crime that was committed. With civil forfeiture, there isn't a reliable mechanism to do that. You really could have a situation where someone was paying a crazy price for a very minor infraction," said Soupcoff.
Okalik says if the legislation passes, and he hopes it will next year, an office would be created, with a director using "what we have for other areas of enforcement."
Okalik said his department plans to have a website up and running in all languages to explain the legislation and further invite comments. Meanwhile, Nunavummiut are invited to have their say. A special e-mail has been set up to receive comments: civilforfeitureinfo@gov.nu.ca
