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Joseph Quesnel and Andrew Newman

Forfeiture Laws Threaten Property Rights

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.One B.C.-based criminal defense 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… Read More