Guest blogger: lawiscool.com

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.

Our courts couldn’t find any protection of private property from government action in the Charter. You can say that you don’t care because people like Kenk and Chatterjee are bad guys, even if no court of law convicted them of any crime. It looks like a pretty smart idea to go after a bad guy’s assets when there is a chance some sleazy lawyer will get him off. It shouldn’t happen to us because we are not bad guys. Our stuff doesn’t smell of marijuana. But the Civil Remedies Act doesn’t just target people who smell like drugs. You only need to be in the wrong place at the wrong time or even let wrong people use your property to get caught by this law. The statute specifically allows the government to take property of mentally ill found not criminally responsible or of people who were acquitted or who weren’t even charged. Again, this law doesn’t require any specific crime or any specific victim. Your property only needs to be “tainted.” The reasons are noble but the net is wide, and it’s the breadth of the law that you should be worried about. The law doesn’t work with exceptions. It targets general categories.

Because laws apply to general groups of people and don’t include lists of good guys, we should always check them for potential abuses. But this case also gives us a good chance to see what private property means in Canada in general. Chatterjee’s lawyers threw all Charter sections they could think of at the Superior Court judge. All failed. They dropped two out of four on appeal. Still no luck. Finally before the Supreme Court of Canada, all Charter challenges to property taking by the government were abandoned. And there is a good reason for that. Our modern constitutional law does not protect private property. We need to know this to understand our government and our legal system and to plan our lives accordingly. The starting point in this understanding should be the question of what property is.

Property is not a thing, it’s a relationship, as they say in first-year law-school classes. Your car is your property because you are in a certain relationship with other people. This relationship gives you a right to exclude anyone else from driving your car. The other end of this relationship is that other people have a duty not to take your car without your permission. But the most important thing about this relationship that makes your car your property is that the government will enforce it. The police will charge a car thief with a criminal offence. The courts will convict him or will order him to return the car if he took it accidentally. The only reason your car is yours is because the government lets you have it. The government gives you a permission to keep your car and to exclude others. If the government decides to take its permission back, you lose your property or some part of it. For example, if a police officer needs your car in an emergency, he can lawfully take it from you. Or the Parliament can pass a law allowing the government to take all cars with a milage below 10 mpg catching your Hummer in the net. There is no legal limit to how the Parliament can change your property relationships through statute because there are no constitutional protections of private property in Canada.

That’s why Chatterjee’s Charter arguments failed so miserably. We do not have a right to property in Canada like we have a right to life, liberty, or security. And the Ontario legislature can’t just pass a law infringing on those three lightly like it can with property rights. The Charter forces the government to follow the principles of fundamental justice if it wants to imprison, kill, or endanger someone. The criminal process is extremely demanding on the government because of the Charter, and the Parliament can’t take these rights from us because it can’t change the Charter on its own. For these reasons, our rights guaranteed by the Charter are truly our rights. Everything else are just privileges granted by the government, including property and ownership. You can say that the government is not some evil organization to be feared and distrusted, and you will be absolutely right. Canada is a democracy but the democracy is nothing but the rule of a majority. The very reason we put some crucial rights away from Parliament’s reach is to protect them from the majority. History knows many examples when democratic majorities persecuted smaller groups of citizens.

For this reason, it’s important to know what rights are protected and what rights are not. The Ontario’s Civil Remedies Act is a good example of how our property rights in Canada are not protected from the government. The public should know this, even if there are many perfectly good reasons for this lack of constitutional protection. The public should know that our property is just a government’s permission to call some things “ours.” This permission is not permanent, nor does the government have to follow any special fair process to take this permission back. Still, Canada’s federal and provincial governments have traditionally respected the stability of property and ownership. Because private property is critical to the survival and prosperity of our country, there is no reason to believe that Canadians will support any Parliament that tries to change the status quo. But we should be watchful when it comes to small abuses, especially against our less fortunate citizens “tainted” with crime, because there is no Charter challenge that can help them.

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