Civil Forfeiture Laws: Legalizing Theft?
One of the cornerstones of Western law is the
presumption of innocence: No one can be punished for a crime until their
guilt has been proven in court beyond a reasonable doubt. That rule
applies to every offence in Canada's Criminal Code,
homicide to assault to alarming Her Majesty.
And it applies regardless of whether the punishment is life imprisonment
or a small monetary fine. Without a conviction, the state can't touch
At least, that's the theory. In practice, a nasty concept called “civil
has steadily eroded the presumption of innocence. Under civil forfeiture
laws, the state can seize property on the grounds that it is connected
to criminal activity—for example, money that is the proceeds of crime or
a vehicle used in committing a crime. That may sound reasonable enough.
After all, if it's illegal to do something then shouldn't it be
illegal to profit from it? And why should the property that a criminal
uses to break the law be there waiting for him when he gets out of jail?
The problem is that civil forfeiture laws generally do not require
anyone to even be arrested for a crime, never mind convicted of one. The
laws empower the police to simply take anything that they allege is
related to criminal acts, and it is up to the owner to file suit and
establish that the property is unconnected to anything criminal.
Proceedings under the laws avoid the presumption of innocence because
they are considered civil, rather than criminal, in nature. The state
need therefore only establish its case on the balance of probabilities
rather than beyond a reasonable doubt.
Even worse, civil forfeiture laws often create incentives that
exacerbate their foulness: The police get to keep a portion (or, in some
jurisdictions, all) of what they seize. The unsurprising
results were set out
in a 2010 report
from the Institute for Justice, an American civil liberties law firm,
entitled Poli¢ing for Profit. It notes that the average law
enforcement agency in Texas depends on forfeited money for 14% of its
budget, with the top 10 most dependent agencies relying on forfeiture
for no less than 37% of their funding.
The report includes the story of a
Georgia sheriff using forfeited money to buy a sports car and gas for
his deputies' personal vehicles and to hire prison inmates to work on
his property. Then there's the one about the district attorney in Texas
who distributed $1.1 million in forfeited money to three favourite
employees. The report spells out what can only be described as
extortion: officers who threaten people with money laundering charges
and their children being put in foster care unless they hand over their
property (after which the alleged money laundering and welfare of the
children are quickly forgotten). The favourite targets for the roadside
stops that produce seized assets seem to be out-of-towners and
minorities—exactly the people who are least likely to fight back.
A refreshingly excellent
piece of investigative
journalism on civil forfeiture by Nashville's News Channel 5
shows us what legalized roadside shakedowns actually look like. In one
sequence, the police stop a New Jersyite carrying $22,000 in cash to buy
a new car, which the officer seizes on the assertion that it is drug
money (thought he fails to arrest the driver). When the reporters note
that the officer couldn't prove that the money was earned illegally, he
responds that the driver “couldn't prove it was legitimate.” Elsewhere,
the police pull over a trucker and make it clear that all they want is
the bundle of cash that they're convinced is hidden in his cargo. Upon
finding the money, they show no interest whatsoever in its provenance;
he need only agree to hand it over and then be on his way.
flagrant display of the officers' shamelessness is exhibited when
journalists observe 10 times more stops on the highway out of town than
on the route into town. The only reasonable conclusion is that the
police would rather seize the drug money flowing out of the city
than the actual drugs coming into the city. After all, $100,000
in drugs is merely evidence, whereas $100,000 in drug money is
funding for your department. State lawmakers in the report quote
officers openly admitting that if the forfeiture money dries up, they
fear for their jobs. And the corruption described by the Institute for
Justice is on display in Tennessee, with a police department acquiring a
new bulldozer that the chief immediately puts to work on his own
property. The full video is mandatory viewing for anyone who wants to
better understand civil forfeiture's ugly nature.
“Even those who break the law
deserve to be punished in a way that fits the crime. To take
a man's house from him because he was growing some marijuana
for his own personal use is an obscenity that cannot
possibly serve any public interest.”
If you're thinking that this all sounds unfortunate
but at least it's an American problem, think again. The first Canadian
civil forfeiture statute was adopted in Ontario in 2003 and seven more
provinces have since followed suit. Indeed, the Globe and Mail
recently ran a
on British Columbia's civil forfeiture law. It begins with the tale of
an illegal search that turns up marijuana plants used by the homeowner
for pain management. Though arrested, he was not charged and the matter
was dropped—until the Civil Forfeiture Office (CFO) decided to try and
seize his house on the grounds that it constituted “proceeds and
instrument of unlawful activity.”
Then there is the Vancouver couple in
whose second home the tenants were running a marijuana grow-op. Faced
with losing the property, they surrendered half their equity in exchange
for the case being dropped. The CFO itself acknowledges that a
staggering 99% of people settle on terms favourable to the government.
The Justice Minister interprets that statistic as evidence that the CFO
is doing a great job, whereas a lawyer and former legislator describes
it as the result of bullying tactics that make it too expensive to
No less disturbing, offences under provincial
statues—which cannot be criminal in nature since criminal law is under
federal jurisdiction—are now leading to forfeiture proceedings. The
Globe article gives the example of an outfitter accused of
violations of the Wildlife Act. Normally he would be subject to
the procedures set out in that law, but instead the CFO has stepped in
to try and seize the certificate required to operate his business—a
certificate that is probably worth several million dollars. Even more
worrisome, the CFO tried to seize a motorcycle owned by a man caught
speeding on the grounds that it was “an instrument of unlawful
activity.” While a judge denied the request, it is horrifying to think
that a routine violation of the rules of the road could result in the
loss of one's vehicle.
Anyone hoping that the courts might find the entire
concept of civil forfeiture unconstitutional is in for disappointment.
First, there is no constitutional protection for property rights in
Canada. Second, the Supreme Court
has already decided
that as the constitution grants the provinces jurisdiction over
“property and civil rights,” it is within each provincial legislature's
power to enact a civil forfeiture law. So if we want to avoid going down
the path of the United States—where the Institute for Justice gave all
but three states a grade of C+ or lower for their civil forfeiture
regimes—then the battle must be a political one.
Unfortunately, the stated intention of cracking down
on organized crime and drug smugglers provides the authorities with
powerful rhetorical tools to combat those who would criticize civil
forfeiture laws. For some, the mere fact that a law purports to protect
us from criminals is enough to end the debate. After all, why would
anyone take the side of lawbreakers? Part of the answer is that often,
it is not even established that the target of civil forfeiture has
broken any law. But a more important part of the answer is that even
those who break the law deserve to be punished in a way that fits the
crime. To take a man's house from him because he was growing some
marijuana for his own personal use is an obscenity that cannot possibly
serve any public interest. To threaten the business that a man has spent years building up because of some minor violations of wildlife
protection laws is profoundly immoral.
Civil forfeiture should be limited to cases in which
there is a successful prosecution and it is clearly demonstrated that
property was acquired through illegal activity or used in order to
commit an offence. And under no circumstances should seized property be
used for the direct or indirect benefit of anyone involved in the
forfeiture process. Any mechanism that falls short of those standards is
an invitation for the sort of injustice and corruption that will
ultimately pose a threat to every single one of us.
From the same author
"There Oughta Be a Law!"
318 – January 15, 2014)
Nelson Mandela, Freedom Fighter? A Libertarian
317 – December 15, 2013)
No One Is Illegal: The Moral Case for a Borderless
315 – October 15, 2013)
Whose Values? Quebec's New Charter
314 – Sept. 15, 2013)
The Joy of Freedom
312 – June 15, 2013)
First written appearance of the
word 'liberty,' circa 2300 B.C.
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