For years, I've warned about the dangers of civil forfeiture laws that permit police to seize your property, without accusing you of any crime.
The legal theory behind civil forfeiture is that your property is somehow “guilty” of a crime. Prosecutors accuse your property, not you, of that crime. And, if your property is found to have somehow been involved in or facilitated a crime, you lose it.
Because civil forfeiture is a civil procedure, none of the protections that would apply to a criminal defendant apply. Essentially, your property is “presumed guilty,” and if you can’t prove that it’s “innocent,” you can lose it.
In the United States, civil forfeiture is a gravy train for local police and the federal government. Each year, billions of dollars of assets are confiscated from owners who in many cases are never charged with any crime. The proceeds of the forfeiture need not be disbursed to the alleged "victims" of the crime your property supposedly was involved in. Instead, police get to keep it. This sets up an insidious bounty hunter mentality where instead of focusing on preventing crime, law enforcement agencies focus on seizing the richest, legally undefended assets they can find.
The attractions of a legal procedure like civil forfeiture to law enforcement agencies are obvious. And because of the "success" of civil forfeiture laws in the United States, other countries are bringing them into effect.
Case in point: Canada. In Ontario, a civil forfeiture law enacted in 2001 to be used against "organized crime" permits the province to seize assets if it can show on the balance of probabilities the assets were acquired directly or indirectly “in whole or in part” as a result of any illegal activity. Now that the law has been upheld by the Ontario Court of Appeal, the attorney general of Ontario predicts “exponential growth” in the use of the seizure powers.
Only, the law isn't being used against organized crime. Instead, it's mostly been used to confiscate "grow houses" where marijuana is cultivated. In numerous cases, the owner of the house has claimed not to be aware of the illegal activity. But innocence is no defense in a civil forfeiture, as the Court of Appeal decision held that the Canadian Charter of Rights—which guarantees that a person is innocent until proven guilty—doesn't protect property rights.
A recent report from the Ontario attorney general’s office states that C$3.6 million in property has been seized in the past four years in 170 proceedings. Nearly C$1 million of these funds have been transferred to municipal police forces. And based on these results, lawmakers in five other provinces have introduced similar legislation.
If you live or do business in Canada—particularly if you own rental property—the proliferation of civil forfeiture laws should be a grave concern. Policing for profit is a burgeoning enterprise in Ontario, and may soon be a reality in most other provinces as well.
How can you protect yourself? The easiest strategy is simply to keep your property heavily mortgaged. If there's little or no equity in the property, police have very little incentive to seize it. It's also a good idea to periodically inspect your property to make sure your tenants aren't using it illegally. Ontario law is typical in this regard: you may enter a leased residence you own if you give your tenant 24 hours written notice of entry.
Learn dozens more strategies to protect your property from "legal theft"—click here.
Copyright © 2007 by Mark Nestmann
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