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Civil Forfeiture - How Your Government Can Take Your Property

Remedies for Organized Crime and Other Unlawful Activities Act, 2001, SO 2001, c 28. like similar legislation in the United States, Ireland, the United Kingdom and Australia was passed to tackle organized crime such as international drug trafficking and terrorism. Countries were frustrated that despite much effort these crimes continued to prosper. Arresting the parties seemed to do nothing to stem the illegal activity.  Post 9-11, countries were urged to adopt more stringent criminal and civil laws targeting money-laundering and the proceeds of crime.  

Non-conviction asset forfeiture or civil forfeiture’s purpose is to get at the profits of illegal activity that sustain the business, the proceeds that are used to purchase houses, fancy cars, bling, or to bribe officials, and the places where the activity occurs.  The thinking is that if businesses grow when profits are put back into the business, businesses starve if the profits are taken away.

Crime should not pay is a no-brainer everyone would agree with this however, the Ontario Civil Remedies Act, 2001 can be used against anyone who commits an unlawful act in the Province of Ontario, whether under federal law or a provincial infraction.  Someone does not need to be charged separately in relation to the same property.  Land, personal property or money can be seized by the Attorney General that is believed connected to illegal activity once they provide notice to the owner that they are seeking forfeiture.

Once notice is given, a hearing will be held at the Superior Court of Ontario. The government must show on a balance of probabilities, about 51 percent that “bad property” was involved in illegal activity. The property is the subject of the case, not the owner so there will be cases Ontario (Attorney General) v 2007 Honda Civil. The owner must prove that they did everything possible to ensure that their property was not involved in illegal activity, or the property was not maintained by proceeds from illegal activity, that they are a “responsible owner” in section 7:

who has done all that can reasonably be done to prevent the property from being used to engage in unlawful activity, including,

(a) promptly notifying appropriate law enforcement agencies whenever the person knows or ought to know that the property has been or is likely to be used to engage in unlawful activity, and

(b) refusing or withdrawing any permission that the person has authority to give and that the person knows or ought to know has facilitated or is likely to facilitate the property being used to engage in unlawful activity;

An owner must be prepared to provide detailed information/records of their ownership. Records such as employment records, leases, banking statements, tax forms, receipts are necessary for showing the source of funds to acquire and maintain the property. 

The government can seek forfeiture of proceeds of illegal activity going back 15 years and forever for instruments of illegal activity, so records must be kept for a long time. Even if extensive proof has been provided, a court can still order that the property be forfeited to ensure that the statute’s broader purposes are met.  These purposes are to compensate victims of crime, prevent people from engaging in illegal activity and keeping the property.  Forfeiture will not be ordered if it is not in the interests of justice, a huge discretionary power of a judge, which cannot be counted on in every case. As it is a civil proceeding, the loser pays the winner’s legal fees. This is a short overview of this legislation.[1]


Joanne M. Prince has been a criminal lawyer since her call to the Ontario Bar in February 1999. In the last five years, Ms. Prince has added residential real estate to her firm’s services. She has completed a Master of Law in 2008 and is working towards her doctorate writing on government interference with property rights through forfeiture regimes.

 

[1] This is not legal advice. If given Notice of a possible forfeiture, please contact a lawyer immediately.