Asset forfeiture efforts ramp up

This article in the Province reports on the British Columbia government’s attempts to increase the forfeiture of assets connected with crime. Asset forfeiture refers to the process by which the government endeavours to confiscate property which it can prove has been obtained by, or used in, criminal activity. The governing statute in Ontario is called the Civil Remedies Act, which came into force in 2002 and was the first such law of its type in Canada.

Providing an additional means to undercut criminal profit motives, government will generally pursue related assets following a criminal conviction. Unlike the criminal standard of guilt beyond a reasonable doubt, however, forfeiture only requires that the government prove the asset was, more likely than not (“balance of probabilities”), used in or obtained through crime. A 2007 report by Ontario’s Attorney General provides an interesting history of civil forfeiture, both within and outside Canada.

It’s argued in support of asset forfeiture that because civil proceedings require a lower standard of proof to achieve a result (better than 50-50), confiscating property could occur in a greater share of cases and thus have greater efficacy as a threat against criminality. But because civil forfeiture usually follows a criminal conviction, the approach is more of a supplementary tool, as opposed to an alternative measure.

While asset forfeiture legislation is designed to primarily target organized crime, it is also being utilized to target less serious criminal behaviour, including reckless driving offences. The Province story reports on a 2008 Ferrari Scuderia seized after it was involved in a street race up Mount Seymour, which nearly hit a mother and her children.

Provincial governments have taken to touting the potential power of asset forfeiture, including coordinated inter-provincial schemes, in the fight against crime. As B.C.’s Minister of Public Safety, Shirley Bond, stated in a press release: “B.C. helped pioneer civil forfeiture in Canada, and we look forward to working with other provinces to improve this important crime-fighting tool. Working together, we can better target the profit incentive behind crime and use those proceeds to make our communities safer.”

To this point, however, civil forfeiture has barely dented criminal business in Canada. The BC government, despite its public stunting, seized just $15.8 million in all of 2010. As a Simon Fraser criminologist, Professor David MacAlister, said in the Province piece, this is but a drop in the bucket of revenues generated by criminal enterprise in B.C.: “I would think you would want to see that figure in the hundreds of millions to make a dent on crime groups.”

The confiscation of the aforementioned Ferrari exemplifies some of the complexities surrounding civil forfeiture, showing why it is often less lucrative than might be expected. While the vehicle was sold to a dealer for $235K, half of that money went to the family of a co-owner who was not in the vehicle at the time of the offence. The province then received just 20 percent of the total sale price, because the offender owner owed the bank 30 percent on the purchase price of the car. In the end, the province recovered under $50K for its efforts.

Attempts have been made to challenge the constitutionality of civil forfeiture laws as going beyond the scope of provincial law-making power, arguing that they infringe on the federal government’s criminal law-making domain. These attempts have failed, and provincial governments will certainly continue to chase assets which they believe they may be able to seize. The British Columbia Civil Liberties Association is set to challenge the constitutionality of changes to that province’s forfeiture regime introduced under its Civil Forfeiture Amendment Act. The new scheme allows appointed directors to turn property over to the province if they “have reason to believe” the property was obtained through or used in crime, removing the judicial decision-making normally central to due process.

Effectively, asset forfeiture amounts to a heavy tax on criminality. But as the use of this tool expands, problems will undoubtedly be revealed. The B.C. government has gone after motorcycles which were speeding in order to attend a funeral, and after the house of one gardener who grew marijuana in addition to numerous other plants. 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, etc., etc., etc.