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, from 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 you.
At least, that's the theory. In practice, a nasty concept called “civil forfeiture” 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.
The most 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.
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 highly-unsettling feature 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 fight.
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.
* Adam Allouba is a business lawyer based in Montreal and a graduate of the McGill University Faculty of Law. He also holds a B. A. and an M. A. in political science from McGill.