There has been a lot of fawning media coverage of last year’s amendments to Alberta’s Victims Restitution and Compensation Payment Act, but not much attention paid to potential problems with the legislation.
The changes, which came into effect last year, give authorities the power to use civil courts to restrain — and, if successful, permanently seize — property used to commit crime or property bought with criminal earnings. The Crown already has the option of trying to take away property when someone is convicted in criminal court, but Alberta and other provinces have recently turned to civil courts. And why not? Instead of proving their case beyond a reasonable doubt (the standard in criminal court), in civil court authorities must only prove their case on a balance of probabilities — and no criminal conviction necessary.
Alberta Justice has more than $11 million in property either restrained or permanently forfeited to the Crown, a fact they recently trumpeted in photo-ops in front of seized properties that were dutifully attended by media outlets in Calgary and Edmonton.
What has gained far less media coverage is a quirky little court case here in Calgary, where a 74-year-old great-grandmother, Patricia Thomson, was fighting to get her condominium back after Alberta Justice got a restraining order against it last July. Authorities alleged the 1,200-square-foot condo (valued at $299,500 in the 2010 municipal assessment) was an “instrument of crime” used in a fraud scheme allegedly involving a group of suspects that includes one of her sons.
Alberta Justice based its allegation on the fact the fraud suspects listed Thomson’s address on banking and corporate registry documents. But in a judgment issued Friday, Queen’s Bench Justice Alan Macleod ruled that there was no evidence Thomson’s condo was ever physically used in the commission of a crime — and that the use of her address information doesn’t make the real property an instrument of crime as defined by the act. Macleod quashed the restraining order.
Although Macleod decided that officials exceeded their authority in Thomson’s case, he didn’t make any ruling on a constitutional challenge mounted by her lawyers, Karen Molle and Michael Bates. They argued, in part, that some provisions of the law violated Thomson’s charter right to privacy and protection against unreasonable search and seizure. The lawyers also said the law violates provisions in the Alberta Bill of Rights guaranteeing due process and enjoyment of property.
Macleod may have stopped short of striking down key provisions of the law, but his comments indicate he has concerns. The act “permits the Crown to go on a fishing expedition with respect to its criminal investigation,” he said. Macleod was also troubled by the fact the legislation makes it mandatory to issue the restraining order ex parte (without giving notice), presumably so people don’t alter or dispose of their property before the Crown gets ahold of it. This means someone who has their property restrained can only make their case after the fact, and only after submitting to questioning and cross-examination in court. “It must be noted that the consequences of the order are dramatic and constitute a serious interference of Ms. Thomson’s right to enjoy her home,” Macleod said.
Another interesting aspect to the case is that Macleod is allowing Thomson to recover the cost of defending herself. While awarding costs is common in civil litigation, Macleod’s ruling is notable here because the province wrote a provision into the law prohibiting people from claiming costs against the Crown. Macleod didn’t strike down that part of the law, but he argued Thomson is entitled to claim costs because officials acted outside of the authority of the legislation.
The thing to watch now is whether the province will change parts of the act highlighted by Justice Macleod. And if the province doesn’t amend the law, will Macleod’s judgment provide the basis for a successful constitutional challenge by someone else?
