the road to hell

Legislation is often about trust. There's a tradeoff. When a new entry is penned in society's rulebook, citizens usually give something up. In exchange, they are promised some benefit. This deal is usually tricky to pin down. But it's there.

Legislation is often about trust. There’s a tradeoff.

When a new entry is penned in society’s rulebook, citizens usually give something up. In exchange, they are promised some benefit.

This deal is usually tricky to pin down.

But it’s there.

So, when new legislation is passed, you should consider whether the benefits outweigh the cost.

Take, for example, the proposed Civil Forfeiture Act currently before the Yukon legislature.

What society gets is easy access to somebody’s property, possessions and cash.

What it gives up is the presumption of innocence.

Fair trade?

Before you answer, consider the implications.

You are giving the government permission to seize and sell off your possessions should it conclude you might have been involved in something unlawful.

Remember, you will not be found guilty of any crime before you suffer the consequences. In fact, the government may not have enough evidence to bring charges against you. They just have to convince a judge that the whole affair – whatever it might be – looks suspicious.

According to the legislation: An unlawful activity may be found to have occurred even if: (a) no person has been charged with an offence that constitutes the unlawful activity; or (b) a person charged with an offence that constitutes the unlawful activity was acquitted of all charges in proceedings before a court of competent jurisdiction or the charges are withdrawn or stayed or otherwise do not proceed.

So, even though you have not been found guilty of anything, you can lose your house, apartment, car or any other personal property that you may own. Oh, and also your cash.

All that may be seized prior to your court date, which may make hiring a lawyer or mounting a defence difficult.

And the bill is retroactive 10 years, allowing the government to comb through dusty documents looking for ways to seize what it believes might be ill-gotten gains.

Now, the government is selling this bill as a way of seizing the assets of organized crime bosses. The problem is, once the laws are on the books they can be used by whoever is in power against whomever they want.

In 2001, the Canadian Civil Liberties Association argued against such legislation in Ontario.

The state should not be allowed to seize a person’s property until a court rules, beyond a reasonable doubt, that a crime has been committed, it said.

As well, it opens the door to serious punishment for relatively minor offences.

“It defines “unlawful activity” as any offence against any federal or provincial statute,” said the association’s Alan Borovoy back then. “Do you really wish, for example, to be able to seize the profits of a merchant who stays open in violation of Sunday closing laws? This bill would enable you to do precisely that.”

Given that assessment, what happens to a merchant who accidentally sold tobacco or booze to a minor?

Or what of a restaurant owner who has staff that start running drugs out of their establishment and threatens the owner to keep quiet, or else? Under the legislation, they have to notify the authorities as soon as they know, or they risk forfeiting their property.


It’s an interesting question.

The chambers of commerce probably have some views on this. But they weren’t consulted by the government in the drafting of this legislation.

In fact, very few people were.

The government targeted its consultation, restricting it to the RCMP and the Crown prosecutor’s office – the two offices responsible for snagging the bad guys, and those most frustrated by the rights of the accused. It’s not entirely clear why the government did not open it to wider discussions.

It bears a reminder that the state can already seize and sell the assets of those involved in a crime.

But this legislation makes it far easier to do so by allowing it to seize property and assets for any “unlawful act,” regardless of severity.

Now, a decision can be made at a political level and the state will have to do nothing more than prove its case on a balance of probabilities.

“This represents far too much weighting against the interests of the citizen who happens to be disfavoured by the state for whatever reason that citizen is disfavoured,” said Borovoy.

This legislation opens the door to abuse, as noted by New Democrat MLA Steve Cardiff during debate on this bill.

“We believe there’s too great a possibility of punitive prosecution,” said Cardiff. “This is a small territory, and it might be an easy way to get even with someone – to give information that may be false, may not be totally above-board, but to try to get even with someone who has irritated another citizen.

“They may have irritated the RCMP or even the public service.”

Now, those who support the legislation will scoff at such things.

The government would never be so threatening, they say.

Besides, the system protects against such abuse, they might argue.

But that’s the whole point.

The existing system has checks on abuse.

And this legislation aims to counter some of those protections, tipping the balance in favour of the state and against the accused.

The government says we’re going after crooks … trust us.

But, under such legislation, who’s a crook? No crime will be punished because no crime will have been committed. This is about unproved allegations, not crimes.

So here’s the deal the legislation offers.

You give up the presumption of innocence in favour of a more powerful government and a fatter public purse.

Is it a fair trade?

Is it what Yukoners want?

We’d suggest not.

Politicians would be well advised to shelve this bill until they consult with their constituents. (Richard Mostyn)