The Yukon government will have the power to seize property it suspects was used for crime even if the owner is innocent, according to the proposed Civil Forfeiture Act.
The bill will give law-enforcement officials the ability to seize cars, houses, money and property it believes to have been used for crimes.
In an odd twist, police will be able to prosecute property for crimes instead of people, which allows the use of civil courts instead of criminal courts.
That makes prosecution easier because civil courts have a lower standard of evidence to prove harm than criminal courts.
So police could arrest, seize and sell a vehicle that was used by a suspected drug dealer, even if that drug dealer was found innocent. The individual would have no recourse if the court believes, on a balance of probabilities rather than beyond a reasonable doubt, that the vehicle was used for trafficking.
“Even if you are acquitted in a criminal trial, even if the charges against you are dropped, the Crown can still keep your money and your stuff,” said NDP Justice critic Steve Cardiff in a news release.
“That’s not something the NDP caucus could ever support.”
The new act is being introduced to make it easier for the police to clear neighbourhoods of suspected drug dealers.
However in jurisdictions where it is used, the legal phenomena known as civil forfeiture is now being seen as creating an incentive for law enforcement to seize goods and infringe on individual rights.
A civil forfeiture may occur even if someone isn’t involved in a crime. Under the new legislation, the criteria is far murkier.
According to the Yukon bill, anyone involved in an “unlawful activity” can have their property seized. Exactly what an unlawful activity is isn’t clear, and can be changed at any time by the director of civil forfeiture, according to the legislation’s regulations.
“This isn’t Big Brother, there has to be some reason you’re being investigated,” said Dan Cable, a spokesperson for the Justice Department.
“Obviously the state is not going to go out and seize property willy-nilly. There has to be evidence.
“If somebody is harming their neighbours and making people afraid, then the state has an obligation (to act).”
The problem is that by only dealing with property, you don’t have to prove anything as you would in a criminal court.
“You’re just dealing with property here, you’re not dealing with the individuals,” said Cable. “The individuals cause the problems, but what you’re actually going after is the property.”
Instead of a presumption of innocence, there is now a presumption of guilt – you have to prove you are innocent to get your property returned.
So, if police seize an apartment where drugs are being kept, the landlord would have to go to court and prove they didn’t know about the crime to get it back. Instead of being innocent before being proven guilty, the landlord would be penalized until they can prove themselves innocent.
And if you’re co-owner of a house and your business partner used the proceeds of crime for their investment, you might have to buy their property if police decide to seize it, said Cable.
Perhaps the most confounding aspect of the act is Section 19, which states property can be found to have been used for an unlawful activity even if “no person has been charged with an offence that constitutes the unlawful activity,” or if “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.”
It’s not clear how property can be believed to commit a crime while the owner is found to have not committed one.
In the United States, organizations like the Institute of Justice have fought against weak-kneed civil forfeiture acts because they give an incentive for police and governments to make off with people’s stuff.
There, the amount of money made from seized assets grew from $94 million in 1986 to $1 billion in 2010, according to the US institute’s research. State forfeiture laws are much weaker and less transparent than the federal law, according to the institute’s recent study, Policing for Profit.
There are dozens of examples of police keeping money from people who weren’t dealing drugs, but were carrying large amounts of money on their person for other reasons, according to the research.
Many of the most important aspects of the Yukon’s bill – which is currently in second reading – are left to be written in regulation.
Alongside the definition of unlawful activity, regulations can change things like the formula that will determine the worth of the asset while it’s in police hands, where the property is kept, how the proceeds are managed before they enter into the government’s general revenue and whether the government will have to publicly declare how much property it has seized and how much money they’re making off it.
Asked repeatedly whether leaving so many important aspects of the act to be postponed until regulations are drafted was lazy lawmaking, Cable disagreed.
“We’re not irresponsible lawmakers and we’re not irresponsible regulation drafters,” he said. “The reason why you have flexibility in the act is things change.”
For example, a First Nation government could redefine unlawful activity in their territory and property could be seized under that definition.
“It may be that, in the future, the Yukon’s forfeiture act may involve a piece of First Nation law in the regulations,” he said.
Wouldn’t this make it harder for citizens to understand exactly why their property was seized?
“That’s one take on it,” he said. “Another take is that law changes over time because you have new pieces of legislation that creates new infractions.”
“(The regulations) are not greyer or blurrier (than laws). They’re available to people in the same way as acts are.”
The act will be retroactive for 10 years, which gives the RCMP the ability to look up situations where they wanted to seize property at a lower standard of evidence, but couldn’t.
And it won’t only be the RCMP that will trigger cases. Some of the cases can come from the Justice Department’s SCAN office too.
The director of civil forfeiture will also have the power to seize information from any public body in government on command.
Many provinces and US states put seized assets into victim’s aid funds, but the proceeds in the Yukon will be too small to warrant the creation of a fund, said Cable.
“We already have a fairly extensive victims of crime operation here in the territory that we’re funding out of general revenue,” he said.
Justice Minister Marian Horne did not reply to a request for an interview. Liberal justice critic Darius Elias was unavailable for comment.
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