Montréal, 15 avril 2000  /  No 60
<< page précédente 
Ralph Maddocks is a retired textile executive and former management consultant. He lives in Cowansville.
by Ralph Maddocks
          As the tax deadline approaches, and the Canadian government gets ready to relieve you once more of some of your assets, another form of asset forfeiture comes to mind. A few weeks ago I wrote about the increasing use of asset forfeiture by the United States as part of its drug war (see WHAT'S YOURS IS MINE..., le QL, no 58). Canada too has asset forfeiture, but unlike the US, at least it is conviction based. Canada was in fact one of the first western democracies to become involved in asset forfeiture.
          It is not hard to understand why this is so. The USA is able to exert enormous pressure on Canada through its legislation and policies. It does this, whether deliberately or not, whenever it passes stringent laws against the proceeds of crime or against money laundering. In the Houston Journal of International Law in 1988 the following remarks by one George Kurisky encapsulated the advantages of asset forfeiture to law enforcement forces: « This provision, attacking the proceeds of trafficking, is extremely valuable to the government and has recently become established as the preferred attack of the DEA. Now drug agents have a very real and powerful weapon to attack the profits of drug trafficking. Investigators are no longer restricted to the procedure of arrest, seizure, and trial, resulting in neither conviction nor forfeiture. » 
          That quotation explains much of the abuse reported so often in the US press and is positively chilling. In another document, this time about the Canadian experience in fighting money laundering, its author pointed out that Canadians preferred a conviction-based system. The author commented thus: « Take away the legal procedures for determining guilt or innocence – with the guaranteed protections for the citizen – then the provisions are exceedingly convenient for law enforcement! » An understatement if ever there was one. 
          Canada does not yet share the proceeds from asset forfeiture with any of its law enforcement agencies, the current belief being that this would distort priorities among the various agencies resulting in the kinds of excesses and potential for corruption reported in the US. Any proceeds from seized assets are paid into the consolidated revenue of the responsible federal or provincial government. Evidently, there is some resentment among the forces of law and order, since some sharing payments have been made available from the US but not from Canada. According to a knowledgeable source to whom I spoke, some of the proceeds of a seizure do ultimately find their way to the various agencies. 
Asset Forfeiture Canadian Style 
          The legal and government structure in Canada is such that there are a number of laws that operate in both federal and provincial jurisdictions. Responsibility for enforcing the Canadian Criminal Code in a province is vested in that province's Attorney General. Some federal laws such as the Food and Drugs Act and the Narcotic Control Act though, are the responsibility of the Federal Attorney General. This causes some problems, insofar as the proceeds from forfeiture following conviction under the Narcotics Act flow to the federal government even though the police force responsible for the conviction may well have been a provincial or even a local one.  
          This leads, understandably, to a lack of enthusiasm among local and provincial police to devote their often-slender resources to such cases. Since drug cases involves such large amounts of money, all police forces in the country have jurisdiction. In practice though, it is mainly the larger forces such as the RCMP, the Ontario and Quebec Provincial Police forces and those of the larger cities that have the resources to deal with such cases.  
     « Such conspiracies between government agencies and drug dealers which result in the confiscation of the properties of the innocent can only lead to further distrust of government. »   
          Canada also has an Office of National Strategy for Drug Prosecutions. It is similar in function to the US Executive Office for Asset Forfeiture though lacking that group's influence. The ONSPD's main responsibility is to review the Canadian government's initiatives for the confiscation of the proceeds of crime. As the name suggests, it has responsibilities beyond simple asset confiscation although, unlike its US counterpart, it is staffed with lawyers rather than representatives of those police agencies directly in touch with asset confiscation. The office deals with policy formulation rather than the co-ordination of any of the programmes. It seems that most of the police forces in Canada have been much influenced by what they see happening in the US. They find the thought of getting their hands on some of the proceeds of asset confiscation quite appealing. 
          One stumbling block faced by provincial prosecutors is related to the section of the Canadian Criminal Code concerning restraint orders. A judge, to prevent an accused person from disposing of property prior to judgement, may grant such orders. This may then require the appointment of a receiver to manage the property and problems then arise regarding who should pay for this. As there is no provision for the law enforcement agency to recover its costs from asset confiscation, and the fact that there may not be any asset confiscation at all after the trial, should the accused be found not guilty, this represents a serious obstacle. An obstacle that causes the agencies, especially the smaller ones, to take a somewhat less than enthusiastic views of things, and could incite them to risk not seeking a restraint order anyway. 
The long arm of the law 
          One problem, which has not yet arisen in Canada, at least as far as I know, is the extraterritorial application of US asset forfeiture law. This happened in the UK some time ago when the English High Court ruled that a US forfeiture order could be registered and enforced in England even though the owner of the asset was never given an opportunity to rebut the evidence. The case, which had something of a Catch 22 air about it, involved the US government alleging that the « real » owner of the property was some drug dealer or other. The English court ruled that only the « real » owner has the right to claim the property and that the « real » owner was who the US government said it was. The US court had simply accepted the allegations made by the US law enforcement agent, and the innocent owner of the property was held not to have « standing ». He did not have « standing » because he wasn't the « real » owner as defined by the US agent!  
          This judgement makes abundantly clear that, although the English courts have, theoretically, the discretion not to register a US forfeiture case, it is quite unlikely to happen. The « real » owner (if he exists, is a fugitive and has no interest in the property) quite obviously will not come forward, and the true owner cannot because he is not considered by the US court to be the « real » owner. 
          An interesting side effect of all this is that if the fictitious « real » owner so wishes, he may use those assets to fight his case. Consider a not so hypothetical case where a drug dealer decides to claim your vulnerable assets as his own. He can give them away to the US government by claiming them for himself or by simply stating that you, or your company, are simply fronts for some drug running operation or competitor of his. As the actual and true owner of the properties you will not be able to contest any of this because you will not be considered by the US (and now the English) court to be the « real » owner. 
          All of the above is yet one more example of the many iniquities resulting from the so-called « drug wars » being waged unsuccessfully by the United States of America. Such conspiracies between government agencies and drug dealers which result in the confiscation of the properties of the innocent can only lead to further distrust of government. It is already obvious that the US government is considered by some to be oppressive, hence the formation of militia groups who are stockpiling guns and ammunition for the day which they believe will come soon when they will have to wrest control away from the government. 
          In what must be counted as pure serendipity, as I write this, the Washington Post carried a report that the White House has indicated that it will sign a bill already approved by both the House and the Senate making it harder for the US government to seize property from suspected criminals. The article reported that in 1998 « …the US Justice department seized $ 449 million of assets linked to alleged criminal activity. » This measure should put an end to the practice of seizing a suspect's assets even before arresting them and then failing to return them after the suspect is found not guilty. 
          Naturally, there has been the predictable whining from law enforcement agencies pleading that it limits their ability to go after the drug dealers. The compromise reached in the final agreement had to do with the proposal by Congress that prosecutors be required to provide « clear and convincing evidence » that the property being seized was linked to criminal activity. The final agreement requires them to show that a « preponderance of the evidence » indicates that the property was so linked. The government must now pay the property owner's legal fees if he or she can successfully challenge the seizure of their assets. A clear step in the right direction, and in what must have been quite a rare occurrence, the bill passed without any dissent. 
Articles précédents de Ralph Maddocks
<< retour au sommaire