The legal meaning of private property, Part 1

Do you think you own your car? If the government convinces a judge that it’s more likely than not that your car is “tainted” with crime, the court can let the government take it from you. No conviction, trial, specific victim, or even specific crime are required.  Ontario’s Attorney General asked the courts to let him seize a house and trucks of an alleged bike thief and drug dealer months before he could even stand trial. Another man lost thousands in cash and some personal property to the government because the banknotes smelled of marijuana. The government justifies this law by the need to fight crime and recover its costs. But the really interesting question for all of us is what property really means, do we have any true rights to it, and what the government can do to our property. Although these cases involved people who seem to be different from most of us, we should learn that ownership in Canada is really a permission from the government to have something, whether we are shady characters or law-school professors.

Igor Kenk had a bike store on Queen West in Toronto. One day cops staked him out. They saw money change hands after some guy cut locks on a bike and brought the bike to Kenk. They saw it twice, and then they arrested Kenk. After searching his store and other addresses connected to him, they found hundreds of bicycles, pounds of pot and some cocaine. The police charged Kenk with theft and possession for the purpose of trafficking. About 500 bikes were claimed after a public showing. The remaining 2292 bikes went to storage because no one showed up for them. Kenk was arrested in July, 2008. In October, the province gave him a notice that it would be applying to court for a forfeiture of his store, the bicycles, and his two pickup trucks under the Civil Remedies Act. Not only did he not have his criminal trial yet, but even his preliminary hearing will not be held until next March.

Kenk is not the first man to see his property slip to the government’s hands without any criminal conviction. Robin Chatterjee lost almost $30,000 in cash and other personal property without even being charged with a crime. All it took was the smell of marijuana coming from his things when the police stopped Chatterjee’s car for a minor violation. The police didn’t find any actual pot. When the Attorney General of Ontario asked the courts to let the government keep Chatterjee’s property, Chatterjee started a legal battle. He claimed the Civil Remedies Act was against the constitution. And he lost at every step of the way, including at the Supreme Court. But his case became a leading judicial decision on civil forfeiture—government’s taking of crime-connected property without compensation.

In many Canadian provinces, legislatures gave the government a right to take crime-connected property with a court’s permission. In Ontario, this right comes from the Civil Remedies Act. This law allows the government to take “proceeds” and “instruments” of “unlawful activity” without compensation. The purpose of the law is to compensate victims of crime in general and to recover costs of crime. Your property only needs to be associated with or “tainted” by crime to fall under the law’s sweep. The government doesn’t have to prove you committed any crime. It doesn’t have to produce any specific victim of crime. It simply must show to the court that your property is “tainted.” The standard of proof is more-likely-true-than-not, also known as the balance of probabilities.

The Chatterjee case ended up supporting the Civil Remedies Act. His lawyers started at the Ontario’s Superior Court by attacking the law on many fronts. They claimed that the province doesn’t have the power to pass a law that is essentially a criminal law. Under the Canadian constitution, only the federal government can do that. The court rejected this argument and said that a forfeiture to recover costs of crime and compensate victims is a matter of property and civil rights in the province. The lawyers also claimed that the law breached  four sections of the Charter. The Superior Court disagreed again. On appeal, Chatterjee’s lawyers dropped two Charter challenges out of four but still lost on all counts. The version of the case that reached the Supreme Court of Canada didn’t allege any Charter violations. All Chatterjee tried to claim was that Ontario overstepped its powers because the Civil Remedies Act was essentially a criminal statute designed to punish people. The SCC unanimously rejected the appeal. So, the Ontario law stands as it is.

Our courts made it clear that the Charter does not apply when the government takes our property to recover costs of crime, even if you didn’t commit any crime. What’s more, courts’ rulings show that the Charter does not protect our property from the government at all. First, the Charter doesn’t even mention “property.” Second, not a single Charter section Chatterjee relied on convinced the courts that the Charter could imply property protection. He tried sections 7, 8, 9, and 11(d). Section 7 guarantees us fundamental justice when the government tries to take our life, liberty, or security. Section 8 protects us from unreasonable search and seizure. Section 9 prohibits the government from arbitrary arrests. Section 11(d) guarantees presumption of innocence and a fair trial. The Superior Court held that s. 7 does not protect “economic interests.” It also said that even the stress and the stigma of losing your property under the label of crime are not enough to harm our “security” that s. 7 protects. As for s. 8, the court said it applies to privacy, not property. Section 9 was rejected outright. Section 11(d) didn’t fly because the court held that “civil forfeiture [did] not qualify as an offence.” So there was no presumption of innocence to protect or fair trial to guarantee.

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