April 17, 2009 | In Law |
The Supreme Court of Canada upheld provincial asset forfeiture laws in a unanimous decision today, rejecting a lawsuit filed by an Ontario university student whose car and money was seized by Toronto police in 2003.
The student - Robin Chatterjee - was found in possession of various pieces of equipment known to be useful in marijuana grow operations, as well as more than $29,000 in cash, all of which was seized by the provincial government.
The police determined that Mr. Chatterjee was probably involved in marijuana cultivation. However; he was never proven guilty. In fact, prosecutors decided not to file charges, due to a lack of evidence. Given these circumstances, it’s hard to see how his right to be presumed innocent until proven guilty was respected.
But this state of affairs cannot be blamed on today’s Supreme Court ruling. Chatterjee’s argument that provinces have no jurisdiction over criminal law issues was weak to say the least, and the Court really didn’t have much else to go on.
As of now, there’s nothing in the Charter of Rights and Freedoms to prevent government (federal or provincial) from seizing property whenever they feel like it. Under Ontario law, prosecutors had only to demonstrate, on the balance of probabilities, that the accused might be involved in criminal activity. They could not have put him in jail on this basis, but there is nothing to prevent the seizure of property.
Think about it. If the government can demonstrate that you have probably broken the law, they can take your house or empty your bank account, without so much as holding a trial.
The only way to correct this frightening threat to liberty is an amendment to the Charter of Rights and Freedoms. Section 7 (which currently protects “life, liberty and security of the person”) should be modified to read:
Everyone has the right to life, liberty, property and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Canadians generally accept that individuals should not be jailed unless proven guilty beyond a reasonable doubt. In fact, we hold it to be a principle of fundamental justice. But in order for our society to be truly free, we must apply this principle to property as well.
As you may know, the version of s. 7 you are proposing was Trudeau’s original draft. He dropped “property” to retain the support of the NDP.
You’re wrong that civil forfeiture means the government can take property without a trial. The property holder still has a right to a trial, under the civil process. You are, however, correct that criminal taint only needs to be shown on a “balance of probabilities”, not “beyond reasonable doubt”. However, that’s true of any non-criminal proceeding, including any number that would take away property.
Ireland and the USA both have constitutionally entrenched property rights, and their highest courts have both upheld civil forfeiture of proceeds of crime.
Comment by Gareth Morley — April 18, 2009 #
Hi Gareth,
Thanks for your comment.
Just to clarify, I meant that the government doesn’t have to file charges or hold a criminal trial. They have to convince a judge that the person is probably guilty, but given that legal aid is not available to civil defendants, defending oneself from the power of the state in this instance could be tricky to say the least.
The way I see it, police and prosecutors are weaseling out of their responsibility to prove guilt. If the police suspect someone but can’t put together a solid case, this allows them to go after the person’s property. I don’t know about you but I just don’t trust government with that kind of power.
As for the U.S. example, the Fifth Amendment protects individuals from being “deprived of … property, without due process of law.” Correct me if I’m wrong, but isn’t “due process” generally understood to include the presumption of innocence?
I have no problem with asset forfeiture per ce, but I think it should be built into criminal sentencing, not used as an excuse to harass and punish potentially innocent people.
Comment by Jeremy — April 18, 2009 #