COURT RULING ON CIVIL REMEDIES ACT RAISES TROUBLING QUESTIONS

An old saying has it, "You can't be a little bit pregnant." But
according to the Supreme Court of Canada, you can be a little bit
guilty when it comes to criminal liability in Ontario.

Last week, the Court upheld the province's Civil Remedies Act, which
permits the attorney general to seize property resulting from
unlawful activity.

At first blush, this is entirely unremarkable. The federal Criminal
Code allows judges to make forfeiture orders as part of sentencing,
and such orders are routinely made. What's new about the Ontario
legislation, however, is that you needn't be convicted of anything to
have your property taken by the state. Unlike the Criminal Code,
which requires proof of guilt beyond a reasonable doubt, the
provincial law has a much lower standard -- "on the balance of
probabilities" -- which means that the property is more likely than
not to have been the product of unlawful activities.

In this case, Robin Chatterjee was stopped by police for failing to
have a front licence plate. Upon arrest for a breach of a
recognizance order, police found $29,020 in cash, a light ballast,
socket and exhaust fan in his car. Although these possessions had a
"marijuana odour," no actual drugs were found in the car. Of course,
it is more than slightly suspicious that Chatterjee, an unemployed
student, would be riding around with that much cash and with some of
the trappings of marijuana production.

There is, however, no crime known as "driving with money and
electrical supplies," so Chatterjee was not charged with any drug
crime. Even though there was no proof beyond a reasonable doubt that
Chatterjee was a drug dealer, the suspicious circumstances were
enough to allow the attorney general to seize the money on the
grounds that it was likely the result of criminal activity. In other
words, the state couldn't prove he was guilty of a crime -- but he
was a little bit guilty, and so it was appropriate to strip him of
his property.

How is this possible? The answer lies in the division of powers in
our federal state. While the federal government has the power to
enact criminal laws, the provinces are given wide scope to legislate
on matters relating to property. The Supreme Court has interpreted
these powers to allow for some degree of overlap -
"interjurisdictional immunity," as lawyers put it, is rare in
Canadian federalism - and thus a provincial law can have aspects that
intrude on federal powers so long as it is not the primary focus of
the law. In the case of the Civil Remedies Act, Ontario argues that
its law is directed at the regulation of property (ensuring
legitimate ownership and preventing the property from being used in
future criminal endeavours, for example) and not a means of punishing
criminal behaviour.

Consistent with this approach, the law does not impose any fine or
punishment beyond the property seizure and the legal proceedings are
not brought against the accused, but rather in respect of the
property itself. This accounts for the original name of the case:
instead of R. v. Chatterjee we have the punchline-inducing "Attorney
General (of Ontario) vs. $29,020 and a Light socket."

The Supreme Court accepted Ontario's characterization of law despite
cases like Chatterjee's, where unproven but suspected criminal
liability resulted in property deprivation. The province argues that
the seizure is not a punishment but simply a return of ill-gotten
gains. Again, however, this assumes an underlying offence which,
while proven likely, fails to meet the higher standards we usually
insist upon for criminal liability.

This is not to say that civil liability cannot be an effective
complement to the criminal justice system. Ron Goldman's parents
managed to get a modicum of justice when they were able to establish
that O.J. Simpson was the likely killer of their son, even though an
absurd jury verdict had relieved Simpson of criminal responsibility.

Similarly, it is hard to imagine that Chatterjee's windfall had been
acquired legitimately. (To answer this concern, Chatterjee offered a
series of inconsistent explanations, ranging from casino winnings to
transferring funds for his girlfriend, to simply not knowing at all
how such a sum had materialized in his vehicle.)

At the same time, the imposition of civil consequences to alleged
criminal behaviour raises a number of serious concerns. Chief among
them are the unavailability of key charter guarantees in these cases,
since many due process rights are triggered only with a criminal
charge. This opens the possibility for outcomes more troubling than
Chatterjee's, where an unconstitutional police search could lead to a
seizure of property.

Civil rights advocates and property rights enthusiasts -- rarely the
same people, in this author's experience -- would be wise to monitor
future applications of the Civil Remedies Act and the similar
legislative schemes enacted across the country.