Saturday, January 1, 2011

Criminal Property Forfeitures Act

The NDP government probably feels vulnerable on crime. It seems a likely reason why they are using the Criminal Property Forfeitures Act to try to confiscate a house where an alleged sex offender lived.

Setting aside the awfulness of the charge, the idea that any felony charge can lead to property being taken by the government is probably not going to stand a court challenge.

It is one thing to confiscate property linked to the proceeds of crime or used as a front for a criminal enterprise and whole different thing about where a crime takes place.

In short, this pushing of the boundaries could be used to take people's houses if they are convicted of domestic abuse. And why not? The crime took place in the home and the province could easily make the claim that the property was an instrument of that crime.

Some people say that criminals deserve no mercy and that there should be no limit to the punishment they receive. However, it is very likely that this decision to go after people based on the location of the crime might fail the provisions of Section 12 and Section 7 of the Charter.

hit counter javascript


Marty said...

Can you link to those sections John?

John Dobbin said...

I am not an attorney but my view is that the court might take issue for two particular reasons:

In Section 7, there is a provision in regards to overbreadth.

The definition:

The "Principles of Fundamental Justice" require that means used to achieve a societal purpose or objective must be reasonably necessary.

This principle is violated when the government, in pursuing a "legitimate objective", uses "means" that unnecessarily and disproportionately interfere with an individual's rights.

The court has ruled before on this matter.

The second provision is Section 12 in regards to cruel and unusual punishment.

The conviction on a sexual offence will be a hard one. The confiscation of property by the government is an unusual event. Aside from the location of the alleged crime, there doesn't seem to be evidence that the property was the result of proceeds of crime nor that it was used as a front for criminal enterprise. In short, the government is stretching the definition to the point that it could mean that any felony crime that takes place on property could be confiscated by the state.

bwalzer said...

This sort of forfeiture has always struck me as a bad idea in general. It can create a situation where we end up being dependent on a healthy criminal class for part of our government income. You end up with something which is sort of a crime tax. I am not entirely comfortable with the idea of funding things like public schools with illegal drug money.

So for me, proceeds of crime is wrong no matter what is being seized from who. If we truly think we can discourage crime in this way then we can donate such proceeds to a worthwhile charity out of the country and eliminate the conflict of interest altogether. Otherwise I will think this is really all about the money and is for all practical purposes a form of government corruption...

John Dobbin said...

Bwalzer, Sometimes the proceeds of crime provisions are recovering money stolen from taxpayers. An example is illegal cigarette sales.

The money recovered from such criminal enterprises should be returned to the taxpayer.

Generally speaking, the proceeds of crime money doesn't go to general revenue of the government but to victim services programs.

Having said all that, I believe the government is seriously over reaching to confiscate property based solely on where the crime took place.

Michael said...

Whatever happened to the "innocent until proven guilty" thing. The idea that I could have my property seized based SOLELY on an allegation, kind of worries me a little. Even if they have an iron clad case against the guy, he is technically not a criminal until he is convicted.

bwalzer said...

Even if the money was used to feed starving children it would still be wrong. It is still a societal benefit. We are all complicit and gain advantage from forfeiture laws.

Our grandparents understood the corrupting influence of "dirty money". It seems we will have to relearn this particular lesson.

John Dobbin said...

Bwalzer, if money is given to poor foreign countries, won't they bed dependent on it as well?

bwalzer said...

The people poor foreign countries have no way to influence our policy. They for instance would not be able to encourage the sort of scope creep we are seeing in the case in question..

John Dobbin said...

Bwalzer, I was referring to the dependence that donations can bring.

Also, the very giving of money is political policy so foreign countries are indeed trying to influence our government to be recipients of aid.

John Dobbin said...

The Free Press has an editorial today about the issue.

Looks like they came to same conclusions.