Proposed forfeiture law lets police take your stuff even if you've done nothing wrong: lawyer

Changes to Saskatchewan's Seizure of Criminal Property Act should worry more people than just criminals, according an expert on constitutional law.

Derek From, a lawyer from the Canadian Constitution Foundation (CCF), said the Saskatchewan Government's plan to expand the number of crimes covered civil forfeiture laws presents problems for ordinary citizens.

Now we are looking at policing for profit.- Lawyer Derek From

He said the original objective of forfeiture laws was to remove property from the hands of criminals and then compensate the victims of those crimes.

"They've become something that is more like a supplement or an alternative to criminal law and that is problematic for a number of reasons," From said.

"These laws, including Saskatchewan laws, they basically overturn some of the great historic rights that we as Canadians hold."

The act allows the province to seize property it believes was part of an unlawful activity, such as a vehicle used to deal drugs or a house that had a marijuana grow-operation in it.

The province doesn't have to prove the property was part of criminal activity and it does not require a conviction before seizing money or property.

"When there is an unlawful activity of some sort that happens these laws allow the provinces to come in and strip the criminals as it were of the profits or the instruments of crime," From said.

But the act allows law enforcement to go much further.

"Civil forfeiture laws allow the government to take your property from you even if you haven't committed any crime or what the laws call unlawful acts," From said.

For example, a landlord could have their property seized if a renter was doing something illegal on the premises.

Proposed legislation increases forfeiture situations

The changes proposed by the Sask. government would add more scenarios in which police could seize property:

• Property that was previously subject to a community safety order under The Safer Communities and Neighbourhoods Act.
• Vehicle owners with a history of impaired driving suspensions.
• Gang or terrorist activity involving prohibited and restricted firearms.
• Matters involving sexual offences, including sexual offences with child victims.

A 2016 report by the CCF, which advocates for property rights and tries to provide some legal pushback, and the Institute for Liberal Studies gave Saskatchewan a D+ grade on its forfeiture legislation and policies.

Under Saskatchewan's law, "the standard of proof is to be on the balance of probabilities" during civil forfeiture court proceedings. The study said unlike a criminal proceeding, "civil forfeiture proceedings are relatively easier due to the lower standard of proof."

The CCF study recommended the provincial auditor examine the province's civil forfeiture records, including how much the province collected and the amount that was given to victims of crime.

From said there are several problems with the act.

Transparency

"There's hundreds of thousands of dollars of property taken every year and no one has any clue where the money goes," From said.  

The police receive a portion of the profits from their own policing activity. From said that creates an incentive for them to go after someone's property.

"Now we are looking at policing for profit. The police who are supposed to be protecting the public and deterring crime, these sorts of things, and protecting the rights of Canadians to own and enjoy property, now have an incentive to strip them of their property."

From said they have found no evidence of corruption, "but the stage is set for corruption to happen."

"There's no obligations on any of these civil forfeiture regimes in any province, including Saskatchewan, to be accountable to taxpayers or even elected officials by saying, 'Look we collected this much and we dispersed this much money and this is how we are spending the money,' " From said.

Jurisdiction

From said provinces are not supposed to be involved in criminal legislation.

"That is exclusively the area of the federal government."

He said the changes are being done because courts have been hesitant to go along with the government when it wants to seize someone's property.

"What I believe the government of Saskatchewan is doing is making the law very specific so that it applies to new sorts of offences and the courts will have less discretion to say no to the government."

A portion of the money generated through forfeiture is given to police and non-profit groups through grants.

Saskatchewan's provincial auditor examines the financial statements of Criminal Property Forfeiture Fund annually.

The province received $1,014,268 in the year 2017-18 in forfeitures. This was down from the 2016-17 total of $1,349,732. The province paid $2.5 million in grants to police and non-profits in 2016-17. In 2017-18, the grant total was considerably less at $111,525.

According to the Ministry of Corrections and Policing, in 2016-2017, there were 12 court ordered forfeitures and 109 administrative forfeiture notices totaling $1.5 million. In 2017-2018, there were 19 court order forfeitures and 122 administrative forfeiture notices totaling $882,000.

Civil forfeiture cases have gone to the Supreme Court in Canada and the United States. In some cases, plaintiffs argued property seized was not proportionate to the crime they were accused of or convicted of committing.