Civil forfeiture
| Author | Robert Hubbard; Daniel Murphy; Fergus O'Donnell; Peter De Freitas |
| Pages | 579-651 |
[579]
CHAPTER
NINE
CIVIL
FORFEITURE
A.
Introduction
With
the
proclamation
of the
Anti-terrorism
Act1
on 24
December
2001,
fully
fledged
civil
forfeiture
provisions were introduced into
the
Canadian
Crimi-
nal
Code.2
While
the
civil
forfeiture
provisions apply only
to
property related
to
terrorism
and
are, therefore, limited
in
scope, these provisions raise
inter-
esting
constitutional questions. Because Canada
is a
federal
state with
a
national government that coexists with governments
in
each
of its
provinces,
the
federal government
shares
its
jurisdiction
to
enact legislation with
the
provinces. Undoubtedly,
the
importation
of in rem
forfeiture
provisions
into
the
federal
Code
will trigger challenges alleging that
the
federal
government
is
entrenching
on
provincial power over property
and
civil rights.
The
government
of
Ontario
has
also
passed
its own
proceeds-of-crime
legislation.
On
12
April 2002,
the
Remedies
for
Organized
Crime
and
Other
Unlawful
Activities
Act,
2001
was
proclaimed
in
force.3
This legislation permits
civil
forfeiture
of
crime-related property
in the
absence
of any
conviction
or
proceedings
in
respect
of
crime. Similar questions about
the
jurisdiction
of
the
provincial government will
be
raised about Ontario's legislation.
While
this
provincial legislation
was
enacted under
the
authority
of
provincial
juris-
diction over property
and
civil rights,
the
legislation will undoubtedly
be
attacked
as
infringing
on
federal
jurisdiction over criminal law. This chapter,
therefore,
examines
the
question
of the
jurisdiction
of
both federal
and
provincial governments
to
pass
civil
forfeiture
provisions
in
respect
of
prop-
erty related
to
crime.
B.The
U.S.
Experience
with
Civil
Forfeiture
1)
Civil Forfeiture Augments
the War on
Crime
The
American experience
with
civil
forfeiture
provisions
is
closely linked
to
its
war on
crime.
Specifically,
civil
forfeiture
was
added
to the
arsenal avail-
able
to law
enforcement
to
combat drugs
and
organized crime.
In
United
1
Anti-terrorism
Act, S.C.
2001,
0.41.
2
Criminal
Code,
R.S.C.
1985,
c.C-46,
as
amended.
3
S.O.
2001,
c.28,
s.i,
in
force
12
April 2002,
O.
Gaz. 2002,
291.
NINE:
CIVIL
FORFEITURE
States
v.
Real
Property, Buildings, Appurtenances
and
Improvements Located
at 221
Dana
Ave,
Hyde
Park,
Massachusetts,4
the
court
succinctly traced
the
history
of
civil
forfeiture
in the
United States:
When
Congress
fast
authorized
the
seizure
and
forfeiture
of
proceeds
of
illegal
drug
transac-
tions
in
1978,
it
"marked
an
important
expansion
of
governmental
power';
previously,
the
federal
drug
forfeiture
statute
had
authorized only
the
seizure
of the
illegal
sub-
stances
themselves
and the
instruments
by
which they were manufactured
and
dis-
tributed.
92
Buena
Vista
Ave.,
121-22.
...
Forfeiture
of the
proceeds
of
illegal
drug transactions
was
initially limited
to all
moneys, negotiable instruments,
securities,
and
other things
of
value furnished
by any
person
in
exchange
for a
controlled substance,
and all
proceeds traceable
to the
exchange.
See
Psychotropic
Substances
Act of
1978,
Pub.
L. No.
95-633,
92
Stat. 3768, 3777.
In
1984,
Congress
enacted
section
^o6(a)
of
the
Comprehensive
Crime
Control
Act,
which
further
expand-
ed
civil
forfeiture
to
reach
all
real
property
used
in
violation
of the
statute.
See
Pub.
L. No.
98-473,98
Stat. 2050
(1984)
(codified
at
21
U.S.C.
§
88i(a)(y)
(1988)).
This
measure
was
"designed
to
enhance
the use
of
forfeiture
...
in
combatting
two of the
most
serious
crime
problems
facing
the
country:
racketeering
and
drug
trafficking"
S.
Rep.
No.
98-225,
at
191
(1984),
reprinted
in
1984
U.S.C.C.A.N.
3182,
3374.
Congress believed that success-
ful
law
enforcement
in
this area depended
on
attacking
"the
economic aspects"
of
such
crimes through such measures.
Id.
In
this case,
the
court
noted
that
the
civil
forfeiture statute
had
been
recently
amended: "Congress recently amended
the
forfeiture
statute through
the
Civil
Asset
Forfeiture
Reform
Act
of
2000.
See
Pub.
L. No.
106-185,
IT4
Stat.
202,
(U.S.C.A. Supp. 2000).
However,
the
newly amended
innocent owner
defense
applies only
to
those
forfeiture
proceedings "com-
menced
on or
after
the
date that
is
120
days
after
[April
25,
2000]."
Pub.
L.
No.
106-185,
§
2I>
JI4
Stat.
at
225;
983, historical
and
statutory
notes.
The
forfeiture
proceeding
here
was
commenced
on
February
3,
1998,
and
so the
amended innocent owner
defense
does
not
apply
to
this
case."6
In
United
States
v.
Carrell,1
the
court noted
the
impact that
the
civil
forfei-
ture remedies were meant
to
have
on the war on
crime:
In
1978,
Congress amended
the
Comprehensive
Drug
Abuse
Prevention
and
Control
Act
of
1970
to
provide
for
civil
forfeiture
of
"[a]ll
moneys, negotiable instruments,
securities,
or
other things
of
value furnished
or
intended
to be
furnished
by any
person
in
exchange
for a
controlled substance
[and]
all
proceeds
traceable
to
such
an
(ist
Cir.
2001).
This case
was
vacated,
see
5
Ibid,
at
91
(footnote
4 in
original) [emphasis
added].
6
Ibid,
(footnote
3 in
original).
(nth Cir.
2001)
[CarreU\.
580
MONEY
LAUNDERING
AND
PROCEEDS
OF
CRIME
exchange"
[Emphasis
in
original.]
21
U.S.C.
§
88i(a)(6);
see
United
States
v.
Dac-
carett,
6
F.3<i
37, 46
(ad
Cir.
1993)
("Now
'one
of the
most
potent
weapons
in the
judicial
armamentarium'
civil
forfeiture
has
become
a
favored
method
for
imposing
significant
eco-
nomic
sanctions
against
narcotics
traffickers."...}
Apart from
the former
forfeiture
of
property actually involved
in
unlawful drug transactions,
the
Supreme
Court
noted
that
"to
authorize
the
seizure
and
forfeiture
of
proceeds
of
illegal drug transac-
tions...
marked
an
important
expansion
of
governmental
power'.'
United
States
v. 92
Buena
Vista
Ave.,
507
U.S.
in,
121,
113
S.Ct.
1126,
1133...
(1993)
... ; see
Alexander
v.
United
States,
509
U.S. 544, 563,
113
S.Ct. 2766,
2778...
(1993)
(Kennedy,).,
dis-
senting)
("Civil
in
rem
forfeiture
is
limited
in
application
to
contraband
and
articles
put to
unlawful use,
or in its
broadest reach,
to
proceeds traceable
to
unlawful
activity.");
Four
Million,
Two
Hundred
Fifty-jive
Thousand,
762
F.2d
at 905
("The
statute
authorizes
the
forfeiture
of'all
proceeds traceable
to [a
narcotics]
exchange,'
21
U.S.C.
§
88i(a)(6),
and
does
not
limit forfeiture
to
property found
in the
hands
of a
drug dealer." (Alteration
in
original.)8
The
long
history
of
civil
forfeiture
proceedings
against
property
associated
with
criminal
activities
was
also
commented
on in
United
States
v. 92
Buena
Vista
Ave.,
Rumson,
NJ.9
In
this
case,
the
United
States
Supreme
Court
noted:
Laws
providing
for the
official
seizure
and
forfeiture
of
tangible
property
used
in
criminal
activity
have
played
an
important
role
in
the
history
of
our
country.
Colonial
courts
regu-
larly exercised jurisdiction
to
enforce English
and
local statutes authorizing
the
seizure
of
ships
and
goods used
in
violation
of
customs
and
revenue laws. Indeed,
the
misuse
of the
hated general warrant
is
often cited
as an
important cause
of the
American
Revolution.
The
First
Congress
enacted
legislation
authorizing
the
seizure
and
forfeiture
of
ships
and
cargos
involved
in
customs
offenses.
Other
statutes
authorized
the
seizure
of
ships
engaged
in
piracy.
When
a
ship
was
engaged
in
acts
of
"piratical aggression,"
it was
subject
to
confiscation
notwithstanding
the
innocence
of the
owner
of the
vessel. Later
statutes
involved
the
seizure
and
forfeiture
of
distilleries
and
other property used
to
defraud
the
United
States
of tax
revenues from
the
sale
of
alcoholic
beverages. See,
e.g.,
United
States
v.
Stowell,
133
U.S.
i,
11-12,
10,
S. Ct.
244, 245-46,
33 L. Ed.
555>
(rSpo).
In
these
cases,
as in the
piracy
cases,
the
innocence
of the
owner
of
premises leased
to a
distiller would
not
defeat
a
decree
of
condemnation based
on
the
fraudulent
conduct
of the
lessee.
In all of
these
early
cases
the
Government's
right
to
take
possession
of
property
stemmed
from
the
misuse
of the
property
itself.
...
8
Ibid,
at
1199-1200
[emphasis
added].
9
(1993)
[Buena
Vista
Ave.]
10
Ibid,
at
1131—33
[emphasis
added].
[58i]
10
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