Tag Archives: charter challenge

The cost of getting it wrong: answered

A judge issued a ruling today ordering the Crown to repay $86,201.62  in legal costs to a senior citizen whose Calgary condo was wrongly targeted by authorities using Alberta’s civil forfeiture legislation.

Lawyers for Patricia Thomson, 74, were in court last month arguing that the Crown should have to pick up the tab for the money she spent fighting in court to hold on to her property. Alberta Justice obtained a restraining order against Thomson’s $300,000 condo last year, alleging it was used by her son and other suspects implicated in a fraud scheme.

In a ruling last February, Queen’s Bench Justice Alan Macleod quashed the restraining order following a charter challenge from Thomson’s lawyers, saying it amounted to a “fishing expedition” for evidence against the fraud suspects that violated Thomson’s rights.

The Victims Compensation and Restitution Payment Act is intended to target organized crime by giving the Crown the authority to permanently seize property used in the commission of crime, or bought with money earned through criminal activity. That usually means things like houses used as marijuana grow operations, flashy cars bought by drug dealers or legitimate businesses bought by gangsters to launder money.

In Thomson’s case, authorities alleged the condo was used in a fraud scheme involving her son because her address was listed on banking and corporate registry documents. It turns out that was the only way Thomson’s property was involved: as an address listed on a form, without her knowledge — hence Macleod’s “fishing expedition” comment.

Speaking today with one of Thomson’s lawyers, Michael Bates, he said he hopes the Crown will think twice before attempting such a broad interpretation of what the act defines as an “instrument of crime” or “proceeds of crime.”

“I hope it’s going to cause the minister to be far more careful to push the limits of this legislation,” he said.

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The cost of getting it wrong

An update on the case of Patricia Thomson, the senior citizen whose Calgary condominium was targeted for seizure under government legislation designed to target properties connected to crime.

A Queen’s Bench justice ruled earlier this year there was no evidence Thomson’s $300,000 condo was used by her son and other suspects implicated in a fraud scheme. The judge quashed the civil restraining order against the condo, and Thomson got to keep it. But at what cost? About $70,000 in legal fees, it turns out.

The province turned to the civil courts when it conceived the Victims Restitution and Compensation Payment Act because the burden of proof is lower than the test in criminal court, where a case must be proven beyond a reasonable doubt. But in embracing the civil process, the government turned its back on another cornerstone of the civil process: that a successful litigant can sue the loser for legal costs.

In Thomson’s case, the judge ruled because the government acted outside the authority of the legislation, it didn’t apply, and allowed her to claim costs. The ruling applied only to Thomson’s case, but the government took notice just a month later and announced it would amend the act to allow respondents whose properties are wrongly targeted to recover their costs.

And so, lawyers for both sides were in court this week arguing their case. Part of Thomson’s defence included a Charter challenge on the constitutionality of the law. Although the judge didn’t rule on the constitutional question, Thomson’s lawyers, Karen Molle and Michael Bates, said it was a necessary part of her defence. Although the Crown hasn’t assigned a dollar figure to what’s it’s willing to pay, Alberta Justice lawyer Cynthia Hykaway argued the cost of the mooted Charter challenge shouldn’t be included in any award.

It only got brief mention in the published article, so it’s worth mentioning here that Thomson’s mortgage holder, the Toronto Dominion bank, is also seeking costs from the Crown. The legislation compelled the bank to file affidavits and documents to prove it wasn’t somehow complicit in the alleged criminal activity or risk losing its investment in Thomson’s property. The bank’s legal costs were around $7,400 — a sum Thomson will be bound by the terms of her mortgage to pay, if the court doesn’t award the bank its costs.

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Forfeiture law gets a bit more civil

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.

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Law not so civil for granny, judge rules

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?

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