At a time when trust in the territorial government has hit a new low, we see the introduction of a bill in the legislature that hands it extraordinary powers regarding seizure of property. I find it disturbing that the Civil Forfeiture Act has, so far, not received much media attention.
More disturbing is that, up to this point, the opposition has not generated any public interest in the consequences of this powerful and dangerous legislation.
It was brought forward after a similar piece of legislation withstood a Supreme Court of Canada challenge a year ago. In the case of Ontario vs. Chaterjee, the court ruled it was within the power of provincial governments to seize property used or purchased by criminal activity without the need for a criminal conviction. The difference after the decision is that the need for proof and the presumption of innocence has changed in favour of the government, leaving the individual alone fighting the power and resources of the government.
The Yukon’s Justice Department failed in its attempts to implement a flimsier version of these powers under the guise of SCAN. After the initial legal rebuke in the Yukon Supreme Court, officials went back to the drawing board and waited until definitive judicial decisions could be made. Almost a year to the date of the Supreme Court of Canada’s decision, Justice Minister Marian Horne introduced the Civil Forfeiture Act in the legislature.
The law will survive a constitutional challenge, but it doesn’t mean it is good legislation. To understand why I am so against it, we should look at possible outcomes and previous experience of legislation like this.
You may lose your property even if you had no knowledge of the criminal activity.
Landlords who unknowingly rent to drug dealers or grow-ops are liable to lose their property for not exercising “responsible ownership.” This term is not even defined in the legislation, but is instead left to the regulations to be made after the act.
Since our opposition has not seen fit to convene a standing committee to review regulations in more than two decades, it is fair to say this will not receive scrutiny. In Ontario, to prove responsible ownership a landlord is required to inform on tenants once suspicion of criminal activity occurs.
You may be found innocent, but still lose your property because you cannot afford a legal fight. The legislation will create a catch-22 for those caught in it. The legislation allows for the freezing of assets before the civil proceedings begin. This will ensure the money required to pay for legal defence cannot be accessed because the government holds it. This creates an unfair playing field, especially against an opponent with unlimited funds to use. Even if you have a good legal case you cannot pursue it due to lack of funds.
The burden of proof and evidence rules change. In criminal court, guilt beyond a reasonable doubt is the standard and evidence is presented under strict constitutional guidelines. This legislation seeks to use civil court proceedings. This means proof is based on a balance of probabilities and evidence rules are much looser. What may not hold up in one court could be used in another. Inevitably, instead of the state having the burden of proving guilt, the individual must now prove innocence. Tomas de Torquemada, the first inquisitor general of Spain, would be proud.
Experience has shown that governments and police become dependent on the revenue produced through property seizures. The United States has had these laws on the books for years, and forfeiture revenues now provide a significant revenue stream. In most cases, seizures are not accompanied by criminal charges, which has led to corruption and evidence of a quota system.
Longtime Yukoners remember the RCMP’s ticket-quota system and the unnecessary police intrusions to ensure projected ticket revenue was earned. Imagine this when your house, car or retirement plan is at stake.
The legislation itself is lacking and scary. Much of what is clearly spelled out in legislation from other provinces is missing or left to subsequent regulation here. This legislation also allows seizure from those who have been found not criminally responsible for their actions.
It is punishing the mentally ill for actions they have been proven to not be legally responsible for.
Finally, while this bill was introduced alongside a victim rights bill, that is the only connection. All revenues produced by seizures will go straight into general revenue.
The department was not particularly brave in introducing this act. It has jumped on the bandwagon as other provinces have after the Chaterjee decision. The Justice Department must surely advise the minister on the other challenges working through our courts that may strike down parts of this bill. These kinds of decisions are generally tempered and refined by subsequent court opinion. A solution could be to introduce the parts of the bill that have been cleared by the Supreme Court and amend as the situation becomes clearer.
This bill is dangerous. It gives unprecedented seizure rights to a government that few Yukoners trust. The minister is filling in an ideological plank left empty by the failure of SCAN and I cannot fault her for that.
I can only wonder why our opposition parties continue to be so mute.
When it comes to attacking civil liberties, silence is tacit support.