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Organized Crime Law Misses Its Target

Jim Finnel

Fallen Cannabis Warrior & Ex News Moderator
An Ontario law that permits the province to seize assets without laying a criminal charge if there is evidence of a link to illegal activity is facing a potential constitutional challenge in the Supreme Court of Canada.

A former Ottawa university student who had $29,000 in cash seized by police near his family's Toronto-area home in 2003 is asking the high court to hear an appeal of a decision this spring by the Ontario Court of Appeal that upheld the provincial Civil Remedies Act.

The legislation encroaches on the federal government's exclusive jurisdiction over criminal law and is unconstitutional, say lawyers for Robin Chatterjee in a written argument filed in the Supreme Court on Aug. 30.

British Columbia, Manitoba, Saskatchewan and Alberta have all enacted similar civil forfeiture laws since the Ontario legislation came into effect in 2002 and the appeal by Mr. Chatterjee is seen as a test case.

Mr. Chatterjee was arrested by police after a traffic stop. Police said they smelled marijuana and discovered the cash after searching the car. No marijuana was found and Mr. Chatterjee was not charged with an offence.

The Criminal Code contains provisions to seize proceeds of crime if someone has been convicted of an offence.

The Ontario legislation permits the province to seize property 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.

"Our position is that this can be a dangerous tool," said James Diamond, co-counsel for Mr. Chatterjee. "It circumvents the constitutional safeguards of a criminal proceeding," the Toronto lawyer said.

The legislation was originally called the Remedies for Organized Crime and Other Unlawful Activities Act when it was introduced by the Conservative government in Ontario in 2001.

The Ontario government issued a report last week that said 170 forfeiture proceedings have been launched in the past four years. Nearly $4-million in property has been seized. Almost $1-million has been distributed to victims of crime and $950,000 has been transferred to municipal police forces.

But most of the attempts to seize assets have not been directed against organized crime leaders, say lawyers who have defended people in forfeiture hearings.

"It's lower-level marijuana grow-ops," said Toronto lawyer Ryan Naimark.

His client Yiu Ngau Lok is appealing an Ontario Superior Court ruling last month that approved the seizure and sale of the $265,000 home that he purchased in 2000, in a community just north of Toronto.

The 60-year-old widower was accused of running a grow-op in his home that allegedly generated $40,000 in annual profit. Federal prosecutors eventually dropped the criminal charges.

The province netted $5,000 after it sold the property and re-paid the bank that issued the mortgage.

The hearing to determine whether the seizure and sale was legitimate took five days in court and was not a good use of the Crown's resources, said Mr. Naimark. He called it "draconian" for the government to be able to "take someone's home" when there is no criminal conviction.

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Source: canada.com
Author: Shannon Kari
Contact: canada.com
Copyright: 2007 CanWest
Website: Organized crime law misses its target: critics
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