by John Carpay, http://www.canadianconstitutionfoundation.ca

Calgary Herald, April 24, 2009

According to the Supreme Court of Canada, it’s OK for the provincial government to confiscate a citizen’s property on mere suspicion that the property might be the proceeds of crime. In Chatterjee vs. Ontario, the court declared that provincial governments may seize and keep citizens’ property without needing to prove that a crime was committed by the property owner, and without even having to show that any crime was committed at all.

Police suspicion — whether well-founded or without basis — is all that’s needed for taking away a person’s money or other possessions, after which the onus shifts to the citizen to try to get her or his property back. Last week the court upheld Ontario’s Civil Remedies Act as valid, ruling that the provincial legislation does not encroach on the federal government’s exclusive power over criminal law. Alberta has similar legislation, on which the Supreme Court of Canada has also conferred its blessing with this ruling. The court reasoned that the legislation “does not seek to impose a penalty, fine or other punishment.”

The ruling displays a frightening lack of respect for the citizen’s right to own and enjoy property, combined with a very high degree of trust in the state to restrain the use of its unfettered right to take property from citizens on the mere suspicion that the property may have been derived from “unlawful activity.”

The ruling completely ignores an ancient and fundamental cornerstone of our legal system: a citizen is innocent until proven guilty. Sadly, the Canadian Charter of Rights and Freedoms does not protect citizens from having their property taken away by the state without compensation and without due process.

Not being able to rely on the charter, Chatterjee challenged the Ontario law as being criminal law and therefore outside of provincial jurisdiction. So the court cannot be faulted for failing to defend property rights which are not clearly enshrined in our Constitution. Nevertheless, it’s disturbing that in the Supreme Court’s mind, when police take your property away from you (without needing to lay charges or prove you are guilty of an offence) this taking of property is not a “penalty” or “other punishment.” According to the court, the Civil Remedies Act is “not tied to the identification, charging, prosecution, conviction or punishment of an offender” and the Crown is “not required to prove any particular offence against any particular offender.

No doubt this legislation was based on the very best of intentions: taking the profit out of crime so that crime truly does not pay, and giving the proceeds of crime to the victims of crime. What could be more just than that?

But there are ways to ensure that crime does not pay, and ways to use the proceeds of crime for the benefit of crime victims, which do not undermine the security of law-abiding citizens. The Criminal Code already allows for the government to seize the proceeds of crime when a court has convicted an offender. In a similar fashion, a person convicted of the Criminal Code offence of impaired driving will automatically lose her or his driver’s licence for a year.

But in these cases the onus is on the state to prove, beyond a reasonable doubt, that the accused person committed a crime.

The property — or the right to drive a car — is lost after the person is convicted. The right of the accused to a fair trial before an impartial judge stands in stark contrast to the Civil Remedies Act approach of “confiscate property first, ask questions later.”

In its ruling last week, the court claimed that the Civil Remedies Act requires “disgorgement of financial gains from unlawful activity.” Yet this law does not require the government to prove that any unlawful activity actually took place, or that the unlawful activity was committed by the person whose property was seized by police.

This decision endorses the state using broad power to confiscate the property of innocent citizens.

This cries out for Canadians to have a constitutional right to own and enjoy property. Such a constitutional right would protect citizens from well-intentioned but dangerous laws like the Civil Remedies Act.

Certainly the state should be able to take citizens’ property in some circumstances, like confiscating the proceeds of crime from convicted criminals, and redistributing that money to the victims of crime.

But the “guilty until proven innocent” approach affirmed by our highest court threatens the security of every Canadian.

JOHN CARPAY IS A LAWYER AND THE EXECUTIVE DIRECTOR OF THE CANADIAN CONSTITUTION FOUNDATION, WHICH DEFENDS CONSTITUTIONAL FREEDOMS THROUGH LITIGATION AND EDUCATION. http://WWW.CANADIANCONSTITUTIONFOUNDATION.CA

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