Legalized Piracy: The Abuse of Civil Forfeiture Laws

Posted by  on March 24, 2015
Legalized Piracy: The Abuse of Civil Forfeiture Laws

It is easy to forget that piracy was once a state-sanctioned activity. Centuries ago, English “privateers” attacked Spanish ships laden with gold, enriching themselves and the royal Crown in the process. Nowadays the government has a different name for this sort of pillaging: it’s called civil forfeiture, and it provides a means for the state and its agents to enrich themselves in the name of the law.

Civil forfeiture laws were enacted in the US in the 1980s as a response to the difficulty of prosecuting drug kingpins who were often untouchable. They were legally untouchable either because prosecutions were slow and complicated, or physically so because the targets were beyond the reach of law enforcement, in South or Central America. The way to fight back was to attack them where it really hurt: in their pocketbook. Civil forfeiture allowed the state to seize the assets of drug dealers and organized crime, without having to win a conviction in court first. These assets were then auctioned off, and the proceeds proved to be quite lucrative, financing these very same law enforcement units, whose budgets had been cut during the Reagan years of deficit reduction.

Civil forfeiture laws permit law enforcement officials to seize the assets of individuals who they believe to be committing crimes. Unlike traditional criminal law, however, there is no need to lay charges, or to prove guilt beyond a reasonable doubt in a court of law. All that is needed are the grounds to believe that an offence has been committed, and the property “used” in the commission of that alleged offence can be seized: a vehicle, a house, phones, computers, cash; in fact, anything that law enforcement officials can connect to the alleged offence. And given that the authorities are rewarded based on the number and value of their seizures, the only limit to the property seized is the creativity and imagination of the officials doing the seizing. In recent years, many police departments and sherriffs’ offices in the US depend on civil forfeiture for the majority of their budget, a conflict of interest that puts self-enrichment ahead of the fair and impartial enforcement of the law.

In short, legally sanctioned piracy.

As one would expect from any incentive system that rewards results over process, the volume and value of asset seizures have grown exponentially over the years, at the expense of rational, fair, and principled investigation. And now civil forfeiture laws are becoming big business in Canada. In British Columbia especially (and other jurisdictions are not far behind), the seizure of assets by law enforcement has exploded, and is rife with complaints of abuse. The problem is that since this is a “civil” and not a criminal process, it is difficult for individuals to seek a remedy from the court. There are short time limits for seeking the return of seized property, and the rules are complex. Hiring a lawyer to decipher these rules is extremely expensive, often more expensive than value of the assets seized. It is often easier to give up one’s claim than to risk bankruptcy by challenging the seizure, especially when the deck is stacked in the government’s favour.

In the US, some small towns have taken this practice to an extreme, where police lie in wait for a motorist to drive by, and pull them over for some trumped up offence. The motorist is threatened with arrest and incarceration, and impoundment of his car and contents; or, he can accompany the officer to a bank machine to withdraw the “fine” to be paid for the infraction. Not much different from a hold-up at gunpoint.

Will Canadians suffer the same abuses? In some instances, they already have. Fortunately, the media, and the hard work of ombudsmen who are tasked with taking on the cause of the “little guy” have been sounding the alarm. Such scrutiny, and a few cases by well-financed litigants under the Charter of Rights, might curb some of the worst abuses, and keep civil forfeiture where it belongs: as an additional tool to deter crime, not as state-sanctioned piracy.

See the editorial on civil forfeiture in the Globe and Mail here (April 30 “Innocent or Guilty. We Want Our Cut”)

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Arun S. Maini, lawyer and founder of The Defence Group, has practised criminal law since 1995. He’s a graduate of the University of Toronto and Dalhousie University Law School. After completing his articles at a Bay St. law firm, Mr. Maini joined the federal Department of Justice as a prosecutor of drug trafficking, tax evasion, and immigration fraud cases in Toronto, Brampton and Vancouver. In 1999, Mr. Maini transferred to the provincial Crown attorney’s office in Brampton, where he prosecuted a wide range of criminal offences, from theft to murder. In 2003, Mr. Maini left the government to establish The Defence Group. Mr. Maini handles all criminal offences and regulatory prosecutions.

Over more than 25 years as a criminal lawyer, Mr. Maini has prosecuted and defended hundreds of criminal cases, and has extensive jury trial experience. Mr. Maini has also lectured at The Advocates’ Society and has taught advocacy at the Law Society and Osgoode Hall Law School’s Intensive Trial Advocacy program. Maini appears occasionally in the media to comment on criminal law – see examples from the CBC, the Toronto Star, and the National Post.

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