Canadian Lawyer

w w w . c a n a d i a n l a w y e r m a g . c o m J U N E / J U LY 2 0 1 9 11 R E G I O N A L W R A P While he hasn't seen any examples of the provincial prosecutors "using sharp practice" to abuse the powers since the original Seizure of Criminal Property Act passed in 2009, Andrew Mason, president of the Saskatoon Criminal Defence Law- yers Association, says new provisions in the amendments "do streamline or make it easier for the Crown to realize a forfeiture." By putting new deeming provisions in the act that determine when someone hasn't responded to a forfeiture notice, Sas- katchewanians could, says Mason, "lose out much more easily with these rules now than they would have before." And unrepresent- ed defendants could have a "significantly" greater disadvantage in hanging on to their goods in seizure proceedings as well. Though Saskatchewan didn't consult with criminal defence lawyers prior to enacting the amendments, Mason said that, with various oversights to keep things in check, he's not worried the province might engage in a rampage of legal looting. "It looks as though Saskatchewan is trying to bring themselves more in line with what generally happens in Ontario and in British Columbia," says Derek From, staff lawyer for the Canadian Constitution Foundation. From, who says the amount of property seized in Canadian cases is often disproportionally large compared to the crime, adds, "That's probably a problem." Those provinces, he says, have inched clos- er to a U.S. style of property forfeiture "that has turned into policing for profit." In many U.S. states, police can seize property from suspected criminals and keep it for themselves or sell for their own profit. That, he says, creates "a perverse incentive" where law enforcement concen- trates its efforts on cases that might prove more lucrative to the police. "And that abso- lutely does happen in Canada," says From. In 2016, the CCF released a report on civil forfeiture in Canada, calling such laws unconstitutional. It gave an F grade B.C. and Ontario for procedures that undermine civil liberties and give those provinces too much leeway in stripping property from citizens. "Unfortunately," wrote then-executive director Marni Soupcoff in her foreword to the report, "civil forfeiture laws allow provincial gov- ernments to seize property not only from criminals, but also from people who have never been charged with, or even suspect- ed of, a crime. All the government has to show is that the property at issue was used by someone (anyone) as 'an instrument of crime,' or was 'the proceeds of crime' and they may take that property from its right- ful owner with no compensation." "This is the scary part," says From, a criminal defence lawyer in Calgary. He says a landlord could lose a rental property if tenants use it for unlawful activities. "And there is no constitutional protection, no statute of any kind that I know of in Canada that says you have to actually be convicted of something to lose your property." — Anthony Davis Untitled-5 1 2019-05-30 3:27 PM

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