Open letter to Justice Minister Marian Horne:
The members of the Yukon New Democratic Party caucus greatly appreciate the opportunity to provide our comments on aspects of Bill No. 82, Civil Forfeiture Act.
As well, we would also like to commend you for already committing to address some concerns raised during second reading.
These include clarifying the definition of “unlawful activity”; dropping the retroactivity provision; making an order as to costs in respect of proceedings under the act in accordance with the rules of the court; and adding a requirement that the director prepare and submit to the minister an annual report to be tabled in the legislative assembly.
However, we continue to be of the view that public consultation, not targeted consultation, is required prior to passage of this legislation.
Therefore, we call on you to withdraw this act, and reintroduce it during a future sitting of the legislative assembly, following a meaningful public consultation. This process could be similar in scope to that followed with Bill No. 81, Victims of Crime Act, and designed to give the public an opportunity to study its implications and provide their views.
That being said, and without having recourse to legal counsel, there are other areas in Bill No. 82 we believe will benefit from further public scrutiny and discussion.
1) Clause 19, page 16, which says assets believed to have been acquired by unlawful activity can be seized under this act, even if no person is convicted of an unlawful activity or charges are withdrawn or stayed.
2) Clause 18(2), page 15, which says this act can be used to seize assets of a person found not criminally responsible of an unlawful activity on account of a mental disorder.
3) Clause 26, page 20, which says any money forfeited to the government under this act must be deposited in the government’s consolidated revenue fund, unless otherwise provided by the regulations. In other jurisdictions, these monies are specifically designated in the legislation for victims of crime, crime prevention and crime remediation.
4) Clause 6(2), page 6, which says under this act the court “must” make an order forfeiting to the government property that the court finds is an instrument of unlawful activity. We question the intent of this legislation to direct a court.
5) Page 23, before Section 32, we propose including a clause requiring a review of the act every five years, similar to the provision found in the Human Rights Act and other territorial legislation from time to time.
6) Clause 24(1) and 24(3), page 19, we propose deleting these clauses and adding clauses entitled “Filing Appeal” and “Appeal stays operation of forfeiture order,” detailing the process in a similar manner to that found in the Safer Communities and Neighbourhoods Act.
Our caucus agrees with the general proposition it is acceptable to seize property obtained through crime. It also agrees it is even acceptable for the state to initiate procedures for such seizures. But it cannot support legislation that is flawed or open to abuse.
It is important we, as legislators, proceed cautiously and make every effort to ensure people’s civil liberties are protected through a system of checks and balances and that innocent persons never see their property wrongly confiscated.
Even our criminal courts applying the 90-per-cent-plus standard of proof convict innocent people with alarming frequency.
And civil forfeiture legislation is far less rigorous.
In closing, we would like to thank you once again for taking time to meet with us to discuss Bill No. 81. However, we strongly believe the Yukon people need more time to study its implications for them and, therefore, would urge you to delay passage of this legislation until you have heard from them.
Todd Hardy, MLA, Whitehorse Centre Steve Cardiff, MLA, Mount Lorne