Last April, the Saskatchewan government had some bad news for nine individuals — the government was coming after some of their stuff.
For someone in Saskatoon, the province gave notice via a government website that it intended to seize $360 it believes was either the alleged proceeds of crime or an instrument of an unlawful activity. On the high end, the province tried to let a seemingly unsavory Regina resident know it was going to keep $4233.65 in cash it intended to take through Saskatchewan’s Seizure of Criminal Property Act.
The entire haul for the month — unless the owners of the cash bother to fight the seizure process and win — would be $19,392.50. According to Saskatchewan’s provincial auditor, the Criminal Property Forfeiture Fund collected $1,014,268 from forfeitures in the 2017-18 fiscal year. That year, it doled out $111,525 in grants to police and non-profits. (The year before the figure was much larger, $2.5 million.)
But, after amendments to the 2009 act that go into effect in June, the Saskatchewan government may well be making bigger hauls.
The amended legislation expands the scope of the property or cash the government can seize from people it suspects — but it doesn’t necessarily have to prove — are engaged in unlawful activities. It goes beyond taking the proceeds of crimes to include property that may have been used to commit a crime; for instance, a car or home used to deal drugs out of. Property, such as a home, could also be seized in matters involving sexual offences, gang or terrorist activities or vehicles owned and used by people with a history of impaired driving suspensions.
Proceeds from forfeited property will be used to fund victim services and compensation, policing initiatives and other programs promoting community safety, Corrections and Policing Minister Christine Tell said in a news release. “These changes are designed to help combat serious crimes that threaten the safety of our communities.”
But is Saskatchewan — not to mention other provinces — going too far when it comes to civil forfeiture laws? When Saskatchewan’s conservative Saskatchewan Party government announced the amendments, NDP justice critic Nicole Sarauer complained that the new rules could result in the province nabbing property from possibly innocent people. “Individuals who are subject to these proceedings aren’t necessarily convicted of a crime and they may never be convicted of a crime,” she told the media. “The burden of proof on these is much lower than criminal proceedings. There’s not legal aid representation for this.”
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 Lawyers 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, Saskatchewanians could, says Mason, “lose out much more easily with these rules now than they would have before.” And unrepresented defendants could have a “significantly” greater disadvantage in hanging on to their goods in seizure proceedings as well.
Though the province did not consult with criminal defence lawyers prior to enacting the seizure amendments, Mason said that with various oversights to keep the things in check, he’s not overly worried the province might engage in a rampage of legal looting.
Derek From, the staff lawyer for the Canadian Constitution Foundation, is not so sure. “It looks as though Saskatchewan is trying to bring themselves more in line with what generally happens in Ontario and in British Columbia.” And if that’s the case, cautions From, who says the amount of property seized in Canadian cases is often disproportionally large compared to the crime, “that’s probably a problem.” Those provinces, he says, have inched closer 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 concentrates its efforts on cases that might prove more lucrative to their police organization and members. “And that absolutely 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 to provinces such as B.C. and Ontario for opaque procedures that undermine civil liberties and give those properties 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 governments to seize property not only from criminals, but also from people who have never been charged with, or even suspected 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 rightful owner with no compensation.”
“This is the scary part,” says From, who works as a criminal defence lawyer in Calgary. “And this is what I think should concern landlords, particularly in Saskatchewan.” An honest landlord, he says, could lose a rental property if tenants happen to use it for unlawful activities. “And there is no constitutional protection, no stature of any kind that I know of in Canada that says you have to actually be convicted of something to lose your property.”
The CCF report issued several recommendations for changes to provincial civil forfeiture laws, including that seizures only take place if someone has been convicted of provincial offence and that judges have sufficient discretion to craft proportionate forfeitures that satisfy the objective of punishing illegal acts and compensating victims. But “no one has stepped up to the plate and done that yet,” says From.