Amid the predictable chest-thumping about “getting tough on crime” when the province outlined its law-and-order agenda for the current sitting of the legislature, there was an interesting little nugget overlooked by most: a recent legal setback has prompted the government to amend its civil forfeiture legislation.
Yesterday’s news conference focussed on the creation of a provincial witness protection plan and the introduction of legislation that will give police the authority to confiscate body armour from gangsters. Fine, but neither measure comes as a surprise and the presser amounted to the government simply confirming it’s going ahead with what it already promised.
What was less expected, however, is a proposed amendment to the Victims Restitution and Compensation Payment Act, legislation that allows the Crown to use civil court proceedings to seize properties allegedly connected to criminal activity. Civil courts have become an arena for these types of cases because instead of having to prove their case beyond a reasonable doubt (the standard in criminal court), in authorities must only prove their case on a balance of probabilities.
Yet in its rush to embrace the civil court process as a crime-fighting tool, the government initially decided to strip away a time-honoured cornerstone of civil litigation: the ability of a party to recover legal costs if they’re wrongly or frivolously dragged into court.
Justice Minister Alison Redford announced the act will now give respondents the ability to go after the government for legal costs if it turns out their property wasn’t used in a crime or bought with criminal earnings. The change was prompted by a constitutional challenge I previously wrote about, which involved a 74-year-old grandmother whose condo was seized by the Crown.
Authorities alleged a 1,200-square-foot Calgary condo owned by the respondent, Patricia Thomson, was an “instrument of crime” used in carrying out a fraud, but her lawyers succeeded in getting the restraining order quashed when they showed that the fraudsters had used her address on banking and registry documents without her knowledge.
Although the Queen’s Bench justice hearing the case didn’t strike down the forfeiture legislation or any of its provisions, he allowed Thomson to seek costs on the basis the Crown acted outside the authority of the act. The ruling applied only to Thomson’s case, but it obviously gave the government pause. Michael Bates, who mounted the constitutional challenge with co-counsel Karen Molle, said he’s happy about the amendment — but added he still believes the legislation places an unfair onus on respondents if they want to hold onto their property.
“It’s definitely an improvement, but there are still some concerns from our side of things, because a citizen shouldn’t be put through that,” he told me.
The judge who heard Thomson’s case raised some similar concerns, even if he didn’t go the extra step of striking down any portion of the law.
Despite the concession made by the government, Redford said she remains confident the law will withstand any future constitutional challenges.
“Lawyers will always bring challenges. That’s what they do,” she said.
True enough — what’s less certain is what a judge will do when that challenge inevitably comes.