M Michelle Gallant Faculty of Law University of Manitoba Manchester, 10/2014

Federal Regulation Canadian Criminal Code Money Laundering (and Terrorist Financing Law) Controlled Substances Law Criminal Law Jurisdiction Provincial Regulation Provincial Civil Forfeiture Acts (8 Acts) Property and Civil Rights Manchester, 10/2014

Criminal Forfeiture of Property Act (Manitoba, CCMC c C306) 3(1) If the director is satisfied that property is proceeds of unlawful activity or an instrument of unlawful activity, he or she may commence proceedings in court seeking an order forfeiting the property to the government. Manchester, 10/2014

"proceeds of unlawful activity" means (a) property acquired directly or indirectly, in whole or in part, as a result of unlawful activity, whether the property was acquired before or after the coming into force of this Act; or (b) an increase in the value of property or a decrease in a debt obligation secured against property, if the increase or decrease resulted directly or indirectly from unlawful activity; Manchester, 10/2014

"instrument of unlawful activity" means property that (a) has been used to engage in unlawful activity that, in turn, (i) resulted in or was likely to result in the acquisition of property, or (ii) caused or was likely to cause serious bodily harm to a person; or (b) is likely to be used to engage in unlawful activity that, in turn, would be likely to, or is intended to, (i) result in the acquisition of property, or (ii) cause serious bodily harm to a person. (« instrument d'activité illégale ») Manchester, 10/2014

Burden of Proof is the civil burden, balance of probabilities Administrative Forfeiture: where the value of the property is less than $75,000, property automatically forfeit (Part 3) Saving provisions: 14(1)Subject to section 15, and unless it would clearly not be in the interests of justice, the court must make an order forfeiting property to the government if it finds that the property is proceeds of unlawful activity or an instrument of unlawful activity. Manchester, 10/2014

Constitutional Concerns Jurisdictional: violates division of powers: Is civil forfeiture criminal or civil legislation? Chatterjee, 2009, Supreme Court of Canada Deals with property and civil rights, falls into provincial jurisdiction No one convicted of an offence, aimed at property, remedial device aimed at controlling the use of property Manchester, 10/2014

Lower Courts May not be in the interests of justice if not sufficiently connected to, or proportionate, with the alleged underlying offences No clear message that it violates Charter rights such as the presumption of innocence, double jeopardy. On-going battle in British Columbia involving the seizure of property (physical locations, club houses) alleged belonging to member of the Hell’s Angels Gang. Manchester, 10/2014

In popular discourse, and informing legal debates claims that it is excessive, used to forfeiture cars (involved in alleged highway traffic offences, speeding and drunk driving), boats (drinking and yacthing), real property (houses) in which only modest criminal activity may have occurred (or little connection with the offence) Manchester, 10/2014

Constitutional wrangling should be shaped by some broad contextual analysis of the application of civil forfeiture For example: What crimes attract civil forfeiture actions? Drugs, highway traffic violations, stolen property, etc. Which power, forfeiture of proceeds of crime or forfeiture of instruments, is the more common action? Are houses (real property) being seized in the context of assaults? (as the instrument of crime) What defenses, if any, are alleged? Manchester, 10/2014

Began a modest investigation, in 2014, of the context of civil forfeiture actions Drawn from the civil forfeiture files in Manitoba A random selection of files from 2009 to 2014 Pulling four kinds of information Crimes alleged Property liable to be forfeit Evidence marshaled in support of the claim Outcomes Manchester, 10/2014

Some tentative empirical results for the project Most involve drugs and allegations of drugs trafficking offences Most common property seized is proceeds of crime (of drugs offences) and houses (all involve property used as grow-ops) With property used as growth operations, the principal substance is marijuana, with the main evidence consisting of cash, plants (sometimes up to 400), the theft of electricity, watering and heating apparatus. Often, property is rental property Manchester, 10/2014

Many actions result in default judgements Interested parties do not respond to the service of writs of notice Most actions are successful A few settlements (usually involving claims by property owners who claim no knowledge that rented property was being used as a growth operation; owners receive some portion of moneys derived from the sale of property) Manchester, 10/2014

Some preliminary observations derived from the empirical investigations and the shaping of the constitutional arguments Much of the public discourse on civil forfeiture regulation is animated by references to actions that are not representative of the principal contextual situations in which the device occurs The few cases involving the seizure of cars (speeding or drunk driving offences) In Manitoba, much interest focused on a single case involving the seizure of property connected to an alleged sexual assault Manchester, 10/2014