By Joseph Quesnel and Kathleen Canjar
Civil forfeiture laws across Canada are unnecessarily victimizing citizens.
Rather than cling to these regimes, Canadian provinces need to move towards federal criminal forfeiture procedures found in the Criminal Code, which provide more procedural protection for individuals. This includes the presumption of innocence and proof beyond reasonable doubt.
British Columbia’s civil forfeiture regime is coming under particular scrutiny. This is good news and should lead all provinces with civil forfeiture to question their policies given how they adversely affect the property rights of individuals.
Provincial authorities are able to seize property without any criminal charges — let alone a conviction. The civil forfeiture office of each province only has to prove, based on a balance of probabilities, that the property was acquired by illegal means or that the property was used to carry out an illegal activity. Some laws specify the property was likely to cause bodily harm or contribute to illegal gain.
British Columbia’s high court recently dismissed the government’s appeal in a case involving government seizure of David Lloydsmith’s home, where police entered and found marijuana plants in the basement. The courts found that Lloydsmith’s Charter rights were violated as the RCMP officer who entered the home, ostensibly to investigate a 911 call, was without warrant and used unreasonable force to enter the home.
But, years later, Lloydsmith was still fighting to retain his CAN$300,000 home. The BC Civil Forfeiture Office considers Lloydsmith’s home an “instrument of crime” and wants to seize it.
Originally these laws were created to fight organized crime, but many critics find that the laws are casting too wide a net and are causing disproportionate harm to the wrong sorts of people. Eight provinces, including British Columbia, have these laws and all of which require little more than “suspicion” and no where close to the “beyond reasonable doubt” standard of proof common in criminal trials.
Regular citizens becoming victims of civil forfeiture is not isolated to British Columba. In Manitoba, consider the case of 51-year-old Chris Bachewich. The province is trying to seize Bachewich’s home — which is his only asset — on the grounds that it was used for a small marijuana grow operation. Bachewich maintains the grow operation was for personal and medicinal use.
In Saskatchewan, David Mihalyko’s truck was seized after he was arrested and charged with trafficking drugs. Mihalyko ran out of money and in order to pay for gas, he sold legally obtained Oxycotin to an undercover cop, disguised as a prostitute, to pay for this expense. Milhalyko pleaded guilty and received a conditional sentence of nine months. Originally, the Crown was unsuccessful in their bid to take Mihalyko’s truck, but in 2012, a panel of judges found the offence to be more serious than the trial judge had and Mihalyko’s truck was seized for good.
In Alberta, Chad Squire found himself the victim as the RCMP seized $27,000 of Squire’s money during a traffic stop near Brooks, Alaberta. The Alberta Justice Department claimed this money was acquired illegally, and sought to have it permanently forfeited. The Crown lost, as Squire had legally earned this money from selling his house and the RCMP has breached his Charter Rights.
Additionally, Elizabeth Thomson, a 74-year-old grandmother, watched as Alberta’s Justice Department obtained a restraining order against her 1,200-square-foot condo, alleging that Thomson’s son had used the property as a base for his online company, which had defrauded the public. Months later, a judge removed this restraining order when it was revealed that Thomson’s son had only used her address on documents, without Thomson’s knowledge.
The provinces began introducing civil forfeiture laws in 2001 and these laws have quickly evolved into a workaround of the more restrictive rules in the Criminal Code.
These cases, which appear across all the Prairie provinces, show that civil forfeiture laws unfairly target regular citizens: ones who are not associated with the more serious criminal acts that these laws were originally formed to combat. As a result, individuals are receiving penalties that far outweigh the “offenses” they have committed.
The result is not less crime, it is less rights for individuals. Rather than expand civil forfeiture laws, provinces need to get rid of them, rely exclusively on criminal forfeiture, and ensure that individuals have the rights they deserve.
Joseph Quesnel (@JosephQuesnelJr) is a policy analyst at the Frontier Centre for Public Policy who focuses on aboriginal matters and property rights. Kathleen Canjar (@can_kt) is an intern at the Frontier Centre for Public Policy.