Civil forfeiture, an uncivil remedy

Ontario’s Civil Remedies Act is an extraordinary and draconian piece of legislation. It allows the attorney general of Ontario to bring proceedings against people who have never been charged with — let alone convicted of — a crime to forfeit their cash, cars, houses or any other form of property.

Basic notions of justice and fairness demand that these powers be reigned in. 

The act was originally introduced as a way to thwart organized crime by making it unprofitable. But since its passage in 2001, the act has been used aggressively, repeatedly and successfully by the attorney general in cases that have little or nothing to do with organized crime. This track record highlights why significant legislative changes are required. 

The most fundamental issue with the act may be its sheer breadth. 

Under the act, civil forfeiture applies to property that is either the “proceeds” of or an “instrument” of “unlawful activity” (subject to narrow statutory defences that almost never apply). 

According to the act, proceeds means property acquired “directly or indirectly, in whole or in part, as a result of unlawful activity.” And, under the act, an instrument means “property that is likely to be used to engage in unlawful activity that, in turn, would be likely to or is intended to result in the acquisition of other property or serious bodily harm to any person.”

These provisions cast the forfeiture net far too wide. Houses partially financed from the sale of drugs can be forfeited. So, too, can vehicles used to effect minor drug transactions. In one case, an entire 12-unit residential apartment complex was forfeited because residents in four units dealt drugs in their units and in common areas of the building.

Consistent with its original purpose, the scope of the act must be narrowed. Cash flowing directly from criminal activity is one thing. However, forfeiting a car, house or apartment complex because of some partial or indirect link to illegal activity is quite another. 

When it comes to an instrument of unlawful activity, the test must be more than a nebulous requirement to show property is “likely to be used” a certain way in the future.  At a minimum, the attorney general must also prove that the property was, in fact, used in unlawful activity in the past. 

Compounding the problematic scope of the act is the range of “unlawful activity” that may lead to forfeiture proceedings. It applies to any offence under any federal, provincial or territorial act. As Michael Bryant put it in a 2001 legislative session, while he was an MPP in the opposition, you could have your property seized “because you violated the beekeepers act.” 

These concerns are not academic. Courts have justified the forfeiture of cash on the basis that it came from trading in used cars, contrary to the Motor Vehicles Dealers Act.

Not all “illegal” conduct should give rise to a risk of civil forfeiture. Ontario should restrict the scope of the act to violations of specific legislation (or provisions of legislation), such as the Criminal Code and the Controlled Drug and Substances Act. 

Yet another problem with the act is that it treats civil forfeiture proceedings largely the same as any other civil case. Proof is on a balance of probabilities, and it may be satisfied based on circumstantial evidence. Adverse inferences may be drawn against a property owner who fails to provide evidence or explanations. Again, no criminal charge or conviction is required.

But civil forfeiture should not be treated the same way as other civil claims.

These cases are instigated and litigated at the behest of the attorney general, they benefit from the state’s virtually limitless legal and investigative resources and they often carry very serious consequences for property owners.

In these circumstances, requiring the attorney general to meet an intermediate standard of proof — akin to the “clear and convincing evidence” standard in certain professional disciplinary regimes — would offer at least some degree of protection against overreach.

The unfairness of applying the civil standard of proof comes into even sharper relief when one considers that the attorney general need not identify precisely what unlawful activity forms the basis for forfeiting a piece of property.

For example, cash is often forfeited without any finding of a connection to any specific type of unlawful activity. Instead, courts conclude that the circumstances surrounding the cash are “suspicious” and, in the absence of a detailed or convincing responding explanation, order forfeiture as a result.

The bar cannot be set so low.

As one court put it, “[T]he concept of freedom includes the freedom to be eccentric [and] the freedom to carry cash instead of paying transaction fees to banks . . .” 

To guard against forfeiture in these kinds of situations, the act should, at the very least, require the attorney general to tie the property in question to a particular type of unlawful activity.

No one should bear a legal or tactical onus to justify simply holding cash in their  pocket, car or under their bed.

Finally, courts should be given greater flexibility in terms of offering relief from forfeiture. The act grants courts a limited discretion to refuse forfeiture where “it would clearly not be in the interests of justice” — a very high standard.

This discretion should be expanded to allow for a more nuanced consideration of the overall fairness and proportionality of a forfeiture order in the circumstances of a given case. 

Civil forfeiture may have a role to play in our justice system. But such an extraordinary power requires careful limits in its application and explicit protections for those who may be impacted. The act falls short in both respects. Nearly 20 years after its inception, it is time for the legislature to take another look.

Justin Safayeni practises civil, constitutional and administrative law at Stockwoods LLP in Toronto.