Forfeiture laws threaten property rights

[R. LaCasse]

TROY MEDIA - FEBRUARY 1, 2012
Forfeiture laws threaten property rights
Giving law enforcement a direct financial stake in forfeiture efforts
encourages policing for profit
By Joseph Quesnel, Policy Analyst and Andrew Newman, Intern - Frontier
Centre for Public Policy http://www.fcpp.org/
http://www.troymedia.com/blog/2012/02/01/forfeiture-laws-threaten-property-rights/

CALGARY, AB, Feb. 1, 2012/ Troy Media/ - In Canada, as well as other
jurisdictions, when it comes to criminal activity there are threats to
property rights that are not immediately obvious. Civil asset forfeiture
or non-conviction based forfeiture is a legal technique through which
governments using the courts benefit from property supposedly used in
unlawful activity. It is a civil proceeding executed through civil court,
and is distinct from proceedings in the (federal) Criminal Code where at
least a criminal conviction is required before one goes after property.

The central problem is that the standard of proving guilt beyond a
reasonable doubt in criminal processes does not apply in these cases.
Civil forfeiture only requires a provincial government to prove that the
asset was more likely than not, on a balance of probabilities, used or
obtained through crime.

A MISUSE OF POWER

One B.C.-based criminal defence counsel wrote, "Civil forfeiture threatens
to be employed in situations where the connection between the crime and
the property is tenuous, disproportionate (meaning the asset is used only
occasionally or in small part for the commission of crime), or where the
state wants to get back at individuals it isn't able to convict in a
criminal court."

It is certainly not just a problem affecting B.C., however. Eight
provinces in Canada have passed laws allowing for of civil asset
forfeiture. Ontario's Civil Remedies Act was the first statute. Provincial
ministries justify asset forfeiture by arguing that it removes the profit
incentive from criminal activity and "takes a bite out of organized
crime." Combating drug related activity was the intention of drafting such
laws. However, some provinces have used civil forfeiture to seize property
that is not associated with drug crimes.

Recently in Winnipeg, Steve Skavinsky, a youth soccer coach, was accused
of sex crimes involving children. Skavinsky has been charged with but not
convicted of the offences. The fact that the 50-year old man is innocent
until proven guilty has not prevented the Manitoba provincial government
from filing a claim to seize his property in December 2010, before his
trial began. "We're not going after the person, we're going after the
property", Minister of Justice Gord Schumacher said in defence of the
action. That the Province is willing to extend the reach of civil
forfeiture beyond its intended purpose is deeply troublesome for the
protection of personal property rights.

There is further evidence that Manitoba is not the only province that is
overextending the reach of the state through the enactment of civil
forfeiture laws. British Columbia, for example, recently passed the Civil
Forfeiture Amendment Act allowing the province to seize property if an
appointed Director has "reason to believe" the property is proceeds or an
instrument of crime. The law also says that for property valued at up to
$75,000 (other than real estate), it is the owner who has to take the
government to court to recover his property. Not requiring a criminal
conviction to seize private property is a dangerous bourgeoning of state
power.

The claim that asset forfeiture is taking a bite out of organized crime is
suspect. For instance, researchers from the U.S., Australia, and Great
Britain have noted that forfeiture has failed to limit organized crime. In
June 2011, the Manitoba government claimed that $1.4 million in assets had
been successfully forfeited. The evidence for the claim, however, is
suspect given that the revenues gained from asset forfeiture are fraction
of the total monetary value of organized criminal activity.

PROFIT-BASED POLICING

The United States provides plenty of abusive examples of asset forfeiture.
In March 2010, the Institute for Justice, an American think tank, released
a study called Policing for Profit: The Abuse of Civil Asset Forfeiture.
The study shows how state and federal asset forfeiture laws have
victimized innocent people. For example, such laws in Massachusetts led
authorities to try seizing a motel from its owner because a small fraction
of crimes occurred in some rooms rented to third parties. The authors
argue that by giving, "law enforcement a direct financial stake in
forfeiture efforts, most state and federal laws encourage policing for
profit, not justice."

Canada, of course, does not have to go down the American path. However,
there are already signs that Canadian provincial authorities are
interested in expanding this practice or at least making it much easier to
accomplish.
Fighting crime is necessary, but it is dangerous when it conceals attacks
on property rights.

Joseph Quesnel is a policy analyst with the Frontier Centre for Public
Policy where he writes mainly on Aboriginal and property rights issues.
Andrew Newman is an intern at the Frontier Centre for Public Policy. He is
currently finishing a Masters degree in political science at the
University of Calgary.

This column is FREE to use on your websites or in your publications.
However, Troy Media, with a link to its web site, MUST be credited.
- -----------------------

Frontier Centre for Public Policy
http://www.fcpp.org/

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[Robert, LaCasse SG:EX]

The Biggest Forfeiture scam is the Gun Registry shopping list,
they always want full forfeiture of the whole collection at the drop of a
hat, no case, no event, no reason just cops shopping for firearms and
court time.

Bob