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Criminal Property Forfeiture

February 23, 2014

I’ve been concerned about the new Manitoba laws that permit criminal property forfeiture for some time, but never took the time to organize my thoughts.  I was conserned that they went too far.  I have no sympathy for criminals, but I believe that innocent people must be protected from prosecution under such laws.  Recent news stories revived my concern.  One was about the Hell’s Angels group being declared a criminal organization, apparently done to eliminate the need for testimony by expert witnesses.  The other was about police as expert witnesses.  Apparently, police were consistently biased, seeing all suspects as criminals.  The supreme court decided that the court itself could make that decision without needing a police opinion.

The new legislation is described here.  It states that property can be confiscated when it’s obtained by commission of a crime or when it’s used in commission of a crime.  It does include a few safeguards.  The government must convince a judge that the legal critera have been satisfied, at least in the case of real estate or high-value personal property.  No legal process is necessary for lower-value personal property.  This makes me wonder how the owner of the property is involved in the confiscation process.  I see from the web page that the owner will sometimes be notified by letter, and that they can object to confiscation by filing a notice of dispute.  I assume that this action will generally result in a court case.

The province of Manitoba, of course, cannot make criminal law.  This role belongs to the government of Canada.  Criminal law already has provision to confiscate the proceeds of crime, but only after the accused person has been convicted of the crime.  The province’s role is limited to civil law.  In the case of the new legislation, confiscation is a civil action initiated by a government agency.  According to the list of proceedings attached to the web site, most of the confiscations are for small amounts of cash.  These are listed as alleged proceeds of crime, presumably for drug transactions.  I’ve also heard of a few larger items, such as houses and cottages, being subject to this new law.  The dispute over the cottage is described here.  This editorial describes in more general terms why the law can be abusive.

My concerns centre around time-honoured legal principles.  Prime among these is the presumption that an accused person is innocent until proven guilty.  This principle implies that a person should not be punished by the law until they are found guilty by a court.  Confiscation of personal property is a form of punishment.  Another more recent principle is that laws cannot be applied arbitrarily.  It protects us against arbitrary arrest and seisure.  It does appear that this law is being applied arbitrarily, almost exclusively against drug dealers.  The danger is that many other activities could fit the criteria described by this law.  It should be made more specific to avoid any arbitrary application.  As well, the confiscation of proceeds of a crime should be left to criminal law, where the person will have to be found guilty before their property can be taken by the government.

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