Convicting property

By Steven Martinovich
web posted December 4, 2000

On February 27, 1991, Willie Jones attempted to purchase a round-trip ticket at an American Airlines counter in the Nashville Metro Airport to Houston. The clerk reacted strangely when Jones paid in cash and disappeared into the back before reappearing and handing the landscaper his ticket. Ten minutes later, as he waited for his plane, Jones was approached by two members of the Drug Enforcement Agency who asked him whether he was carrying drugs or a large amount of money. Jones denied that he had drugs but did admit that he had a large amount of money on him to purchase plants for his business.

After a pat down, the agents found a wallet with $9 600. The father of three girls vainly attempted to explain that growers preferred to be paid in cash but they confiscated the money and told him that an unseen dog had sniffed the money he had used to pay for the ticket and reacted as if drugs were on it. Jones -- who is black -- was never arrested and only recovered his money two years later by suing the DEA for racial discrimination.

You could be tempted to blame racist attitudes for what happened to Jones and several hundred other Americans, but you would only be partly correct. What happened to Jones is called asset forfeiture, essentially laws passed in the U.S. which allow law enforcement to seize the assets of people they suspect are drug dealers regardless of whether they are ever charged for any offence. If the Mike Harris government has its way, these types of laws will be coming to Ontario.

On November 27, Attorney General Jim Flaherty and Solicitor General David Tsubouchi announced that the province would be the first to "ask the courts for permission to seize illegal profits and help victims." The purpose of the proposed law is simple. It would allow the seizure of civil assets being used by organized crime. Modeled on the Racketeer Influenced and Corrupt Organizations (RICO) laws introduced three decades ago in the United States, the assets would be used to fund the activities of law enforcement and help the victims of organized crime.

The legislation would also allow the confiscation of so-called "third party" properties, legitimate businesses being used to hide the profits of crime. The Crown would merely have to "prove" its case on probabilities, rather than beyond the reasonable doubt that one would see in a criminal proceeding.

While Flaherty is promising that provisions will be built into the legislation to protect the innocent from arbitrary procedures, it's hard to see how that can happen given the history of similar legislation in other jurisdictions.

Flaherty's legislation also only deals with civil law and not criminal and civil law like RICO. Under criminal forfeiture, someone has to be found guilty in order for their assets to be seized. Under civil seizure, the procedure is actually against "guilty" property, meaning that the constitutional protections we receive don't apply. With the government only having to show probable cause, the property owner must shoulder the burden of proof -- reversing the tradition of being considered innocent before being proven guilty. An added problem is that if the property seized is an owner's only asset, defending oneself can be problematic.

And since civil forfeiture would likely be brought separate from criminal proceedings, it would effectively mean that a person could be charged twice for the same crime.

Besides the possible danger to our basic legal protections, there is the added problem that the use of civil seizure could be expanded in the future. Several American states see police have the power to seize assets in crimes as lowly as shoplifting. In October, a private members bill was introduced in the Ontario legislature which would amend the Highway Traffic Act giving judges the power to seize the vehicles of suspended drivers used in the commission of a crime, proving that there are already politicians interested in wider applications of seizure.

Another possible danger is misuse of the legislation. Law enforcement in the U.S. has come under severe criticism for allegedly targeting minorities, sometimes stopping them and relieving them of their money before allowing them back on their way. Only those two DEA agents know if they targeted Jones because he is black. The legislation could also be misused by police as a new revenue stream as some departments in the U.S. have been accused of doing. South of the border, police seized nearly $500 million in assets in 1999, most of that going to law enforcement as a prize - all without trials or the inconvenience of having to go to the taxpayer for funding.

Flaherty's legislation must clearly set out that only people can commit crimes and avoid medieval doctrine that a thing can be guilty because of its alleged ties. By enshrining that, the civil rights of Ontarians will at least be somewhat protected from our more capricious members of government.

Steve Martinovich is a freelance writer in Sudbury, Ontario.

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