Abusing civil forfeiture in Canada
January 10, 201710 January 2017
Ontario’s civil forfeiture laws have created a system that is broad in scope and power, light on defence and relief, and they are being deployed very generously.
That’s a reality that Margaret and Terry Reilly have learned the hard way over the past decade, as the government has aggressively pursued two of their properties, seizing their buildings and selling them off.
It’s a case that highlights the bizarre nature of civil forfeiture — one that a group of lawyers is looking to scale back.
The Reillys have found allies in the Canada Constitution Foundation (CCF), who are helping in the legal fight against the forfeiture order.
The case dates back to 2008, when the couple had two of their rental properties in Orillia seized.
As a Crown attorney told the local paper in Orillia, where the Reillys live, the properties had essentially become drug dens, insisting that the “purpose of the act is to prevent these properties from being used for trafficking drugs and stolen goods."
But the police didn’t pursue charges against the Reillys’ tenants who were, the Reillys admit, sometimes homeless, crime-involved, and suffering from mental illness. Instead, they went after the houses themselves and, in turn, their owners.
CBA National has written before how civil forfeiture allows governments to pursue civil claims against property they believe was used in the commission of a crime, or purchased with the proceeds of it.
The properties were taken into the possession of Ontario’s Director of Asset Management in 2008, while the two sides battled it out in court, and filed to permanently take control of the properties in 2012 and sell them. The move was, according to the CCF, “on the grounds that some of the tenants’ rents may have been paid, in part, with the proceeds of their drug activity.”
“This case is a particularly chilling example,” said Shawna Fattal, a criminal lawyer who represents the Reillys, speaking at the CCF’s annual Law & Freedom Conference last week in Toronto.
In a 2016 report from the CCF, they gave Ontario an “F” on its civil forfeiture law. They note that “the province routinely uses its power to forfeit property in circumstances where there is insufficient evidence to merit criminal charges.” Also, the province “uses its power to pursue the property of third parties not suspected of any wrongdoing.”
Fattal shared the stage with Justin Safayeni, a litigator at Stockwoods with a practice in constitutional matters.
“We have very broad seizure powers, very weak statutory defences...and we have a Crown that is using this legislation is quite aggressively,” Safayeni told the crowd.
“The deck is often stacked against litigants in these situations because the government is simply better resourced.”
Indeed, in many cases, police seize petty cash or a car — items that cost less than the legal fees and lawyer costs for months-or-years-long proceedings.
And while he told the crowd that he doesn’t think “the door is totally closed in all Charter arguments,” he and Fattal agreed that the fight against overbroad forfeiture laws — something endemic to almost every province, according to the CCF — is ultimately a fight that may have to go province-by-province.
One big variable will be how the Hell’s Angels fare in British Columbia, where they are currently launching a constitutional challenge to fight the seizure of a clubhouse on the basis that, the Attorney General says, the location could be used for crime in the future.
Justin Ling is a regular contributor based in Toronto.