Tuesday, June 9, 2009

Proof goes Poof!

When Robin Chatterjee was pulled over for having a missing licence plate, police claimed they smelled marijuana in his car.

They searched the car and found $29,000 in cash and a few items commonly used for growing marijuana. The police recognized they did not have evidence to charge him with any crime. Instead, they confiscated the items, along with the $29,000.

Shockingly, this happened in Canada. The Supreme Court of Canada recently ruled such forfeitures do not violate the Charter of Rights and Freedoms.

If the police just "think" property in your possession may have come from criminal activity, it can be legally confiscated.

Ontario's Civil Remedies Act "does not require an allegation or proof that a particular person committed a particular crime," the court wrote. This is an extraordinary grant of police power and the potential for abuse or misuse is extreme.

Many readers have no problem with the notion of police powers being exercised against criminals. But Chatterjee was never even charged with a crime, let alone convicted of one. This did not matter to the court, which wrote the trial judge "could have accepted wholeheartedly (Chatterjee's) claim that he was entirely innocent of any involvement with marijuana cultivation, yet still ordered forfeiture."

That is a remarkable statement. What happened to proof beyond a reasonable doubt? What ever happened to the principle that "the punishment must fit the crime?"

Chatterjee may have been a suspicious character. After all, it is rather unusual to travel with tools typically used for growing marijuana plus $29,000 in cash. But it is not illegal.

Receipt, please

Imagine the police pull your car over for a broken tail light or come to your house because you are waking your neighbours. Will you need to provide a receipt to justify any unusual or expensive possessions the police notice that you have?

And if you can't, should you lose your things, even with no criminal conviction?

I think it violates the principle of proof beyond a reasonable doubt to confiscate alleged proceeds of crime without any criminal charge. In a free and democratic society, we should not have to explain ourselves to the police any time we are pulled over.

In my view, if the police do not have grounds to arrest you, you should be free to go, and to take your property without having to prove it is lawfully yours.

The unfortunate trend, however, is our society's interest in personal privacy continues to degrade, coming close to the point of no return.

Since 2004, six other provinces have joined Ontario by enacting civil forfeiture laws. B.C., has confiscated more than $5 million since its law came into effect in 2006. B.C.'s Civil Forfeiture Office (BCCFO) is funded by proceeds of confiscated goods, and the office became entirely self-funded 18 months ahead of schedule.

This should be nothing to be proud of, but the BCCFO gleefully boasts it is "an exercise in efficiency" and it's "business model" is premised on "ease of access for law enforcement personnel."

It scares the hell out of me that a government forfeiture office sees itself as a business. Confiscating goods and money without sufficient proof of criminal conduct should not be undertaken so cavalierly.

U.S.-style abuses

Such programs are likely, if not certain, to suffer from the exact same sorts of abuses that have occurred in the U.S., where it is not uncommon to hear of forfeited goods going missing or forfeited cars winding up in the hands of law enforcement personnel.

The state took Chatterjee's money and other items because the cops smelled marijuana in his car. I am left to wonder what they would have confiscated had Chatterjee actually had drugs on him. Maybe his kidney?

The Toronto Sun

No comments:

Post a Comment