Provincial property grabs target more than crooks: Neil Macdonald

Canada's provincial governments, it appears, are now well into the wonderfully lucrative business model of grabbing private property.

The bureaucrats in charge of it prefer the term "civil forfeiture," but the reality is crude and effective: Seize people's property or money, declare that it's probably the proceeds or instrument of illegal activity, and force the targets to hire lawyers and prove their innocence in court even though they often don't face any criminal charge.

The legal looting here doesn't approach the frantic greed jamborees going on in certain American states. But Canada is moving enthusiastically down the same path.

Since it began the practice of civil forfeiturein 2003, Ontario has seized $49.5 million worth of property. Since 2006, British Columbia has confiscated $64 million. Six other provinces have similar programs. And more is seized every year.

Forfeiture laws are supposed to target drug dealers and other criminals, reasoning that bankrupting the perpetrators is more effective than a fine or jail time. But inevitably, they go after innocent people too.

Landlords whose properties may have been used for drug transactions, or people who own expensive cars that a relative or friend may have used during the commission of some offence, or just people foolish enough to carry a large amount of cash for some reason find themselves facing messianic bureaucrats willing to use the full power of the state to acquire their property.

And in some cases, provinces are providing police and Crown agents with an irresistible lure: they get to keep some of the take.

In the United States, similarly "incentivized" police have gone hog wild, seizing billions, then using the confiscated wealth for everything from military equipment to luxurious convention trips to performance bonuses. In the southern states, especially, towns hire officers who've taken training in how to relieve motorists of their money during trumped-up traffic stops.

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Stories of police seizing money from clearly innocent people, then offering to return some of it if the mark agrees to sign a waiver promising not to sue, have made headlines in the U.S., a country whose citizens revere property rights. There are congressional hearings into the practice this week.

There hasn't been that level of scrutiny in Canada, and there is nothing here as well funded as the Institute for Justice, a group of libertarian American lawyers who regularly take police and governments to court.

But there is the Canadian Constitution Foundation, which advocates for property rights and tries to provide some legal pushback.

CCF general counsel Derek From says "once you write a law, the bureaucracy takes over, and mission creep sets in, and they get their blinders on, and it grows and metastasizes.

"They see what they are doing as the Lord's work. They see themselves as punishing sin."

From ticks off cases he's seen: Chad Squire, the motorist pulled over in Brooks, Alta., by a traffic cop who proceeded to relieve him of $27,000 cash. It took Squire two years of fighting in court to have his money returned. It was legally acquired from the sale of his home, something the province's forfeiture agents must have known very well.

'Shut up forever'

Ontario forfeiture agents often offer a settlement, but those can come with a demand that a target agree to a gag order, promising never to discuss it publicly.

"That's extortion," says From. "'Give me $50,000 and shut up forever, and the case goes away.'"

There was the case of Robert Murray, whose house in Nelson, B.C., was searched by the Mounties in 2012. They found marijuana plants, but laid no charges. Instead, the province went after his home.

The forfeiture office initially demanded 80 per cent of his equity, about $65,000. Then, when Murray fought, it kept lowering its demand. Eventually he received a final offer: pay $10,000 now, or we'll force it into court and the costs will bankrupt you.

Murray didn't flinch. The province dropped the case.

But most people do flinch, and just settle, which forfeiture authorities count on. Going to court costs money.

'Zealous measures'

As B.C. Supreme Court Justice D.W. Thompson put it when he returned a seized pickup truck to a woman whose friend police suspected had been driving it while intoxicated:

"The office of the director of civil forfeiture has taken zealous measures with the unfortunate effect of depriving a citizen of lawful possession and use of her property, and putting that citizen to what I suspect is considerable expense and inconvenience to retrieve her property."

Ontario and B.C. deny they are "incentivizing" police with people's money. While police can apply for "grants," provincial officials say much of the money also goes to charities and victims rights groups.

From, though, says forfeiture offices refuse to provide documentation of how the money is spent.

"They deliberately don't keep track of money in, money out, so we can't access it."

Behavioural economics

A 2014 study of forfeiture in B.C. and Ontario, done at the University of Western Ontario, effectively concluded that forfeiture boils down to behavioural economics.

"The greater the incentives the more public enforcers will use forfeiture laws.

"Self-interested actors will attempt to maximize the size and budget of their agencies, which provides benefits through higher salaries, greater job security, better resources, and increased power and prestige."

In the U.S., when after years of negative publicity, Washington suspended its "equitable sharing program" in late 2015, the uproar from police departments and municipalities nationwide was so loud that the program was restored a few months later.

The police had come to depend on seized money. And make no mistake: so will Canadian law enforcement.

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There is one group, though, that enjoys near-total immunity from forfeiture: lawyers.

If anyone is likely to be paid with money that's the proceeds of a crime, it's a criminal defence lawyer. But of course lawyers write laws, and are well-positioned to ensure their self-interest is protected. Again, behavioural economics.

I asked the Law Society of Upper Canada, the group that enforces legal ethics in Ontario, if it had any concerns about forfeiture offices going after lawyers who are paid in cash by criminals.

"An important principle is solicitor-client privilege," a spokeswoman replied. "The client holds the privilege and the lawyer is the trustee of that privilege. Only the client can give informed consent to the disclosure of his or her privileged information."

In other words, how lawyers are paid is none of the province's business, so butt out. Grab somebody else's cash.