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Law Times • June 8, 2009 Rule of law is for everyone ject to the rule of law. Well, everyone except W those holding a community hostage in Caledonia since Feb 28, 2006. They are, ap- parently, still above the law. The situation is a fester- ing canker on the law and the legislature itself but there's pre- cious little discussion about it. More recently Ontario Progres- sive Conservative Party leader- ship candidate Tim Hudak (Ni- agara West-Glanbrook) added a promise to his platform, saying if elected leader and if elected premier — two big ifs as of this writing — he would introduce amendments to the Trespass to Property Act. Again, he's preaching to the party faithful since it's they who must elect him June 27 and 28 and it's a sad commentary on our times that this type of initiative isn't being hotly discussed in the legislature or at least higher up on the Liberal government's agenda. The situation in Caledonia, however, remains intolerable, if not distasteful. It began when aboriginal protestors from the nearby Six Nations erected tents and a shack on a construction site claiming the development is on native land. Since then mayhem has reigned. Hudak says it's time to change trespassing laws to deter such "illegal occupations and en- sure that violators are dealt with fairly and decisively. Communi- ties, like Caledonia, should not be paralyzed by illegal occupations. Blocked highways and roads take a toll on families and have an im- pact on local businesses." Well, duh. Who'd disagree with that? His plan is to increase penalties for trespass, make il- legal occupation a separate of- fence, with escalating penalties each day of an occupation, and make it an offence for an orga- nization to encourage others to engage in an illegal occupation. "I believe that no person or group of people is above the law. Tougher penalties have worked to prevent illegal strikes in Ontario for many decades and they can be used to pre- vent illegal occupations too," says Hudak, adding he'd also ensure frontline police officers and prosecutors have the re- sources they need to enforce the enhancements. Beefing up the penalties is nice rhetoric but at some point it's going to mean moving in with intent and in this country we're afraid to do that. Ontar- ians have been held hostage by interest groups too many times over the last few years and it's worn thin. When the Tamils moved to shut down the Gar- diner Expressway last month it was the last straw and last week Mohawks took control of the bridge to the U.S. at Cornwall. Those folks in Caledonia hen I last checked, everyone in this province is sub- Inside Queen's Park By Ian Harvey waiting for public action have tak- en matters into their own hands, hiring local lawyer John Findlay to take on the province in a class action which is grinding its way through the system despite all at- tempts to shoot it down. The next step in this legal mar- athon is already in play: Findlay is amending the class certifica- tion to more narrowly define it, he says, and should have that served sometime this week. "We've just finished redefin- ing the classes in accordance with Justice David Crane's deci- sion," he says. "There are about 420 households affected and also the contractor class and two business classes, one on the two main streets and one class af- fected out on Highway 6." Next up will be a certification hearing which will likely not happen before the fall, meaning a fourth long, hot summer of intimidation by the thugs from the reserve who patrol the streets in the lockdown area as if they own them, screaming around on ATVs at all hours and gener- ally menacing the locals. Waiting for official relief is not an option; let's just say there will be no bailout for these folks in the same way Chrysler and GM were helped out. "There's a compensation fund from Municipal Affairs and Housing but it's really only about $400,000 which isn't much for all the people in- volved," says Findlay. The core of his action is based on the rule of law and how those charged with administering that rule have utterly failed, but it's more than just a matter of occu- pation of property, he says. "There's a burned out tractor- trailer that's been there for a year which gives the site an appear- ance of a war zone," he says. "And there are smoke shacks popping up which are com- pletely illegal. We see more of them all over here and just re- cently on a trip to Hagarsville we saw them on country lands, not just the reserves." Beyond the loss of the resi- dents and business directly af- fected, however, he knows no court award will ever compensate the community at large for the losses they have suffered. "This area has a mystique about it and drew a lot of tour- ism," he says. "You can't compen- sate those losses and they may never get that back." LT Ian Harvey has been a journalist for 32 years writing about a diverse range of issues including legal and political affairs. His e-mail address is ianharvey@rogers.com. grounds to believe it was related to the offence. At the end or even during a proceeding a lawyer could contact the police to have the items re- turned and generally speaking, unless it was actual evidence and there was a clear link to the charge, the property was returned. Today, it is far more likely that a client's home, vehicle, and moneys are restrained and/or forfeited to the attorney general without any direct link or evidence. In the new age of crime fighting, govern- ments use a complicated and poorly understood combination of legislation to prevent people from re- gaining their property. The courts, at this time, choose to view this not as punishment. There are two different routes the government may choose in order to seize, restrain, and/or obtain forfeiture of property it considers "offence-related property." The Criminal Code and the Controlled Drugs and Substances Act speak to the power of seizing property through the criminal justice sys- tem while the Civil Remedies Act speaks to a civil system of restraint and forfeiture of property. The common theme running through the criminal and civil processes is to foist the burden on the accused as, "He who asserts, must prove." It is the CRA that is of the most concern to a private citi- zen's right to retain lawful property; it was enacted in 2001 and took effect in 2002. It contains five parts. Part I sets out its purpose: compensating persons who suffer pecuniary or non-pecuniary losses as a result of unlawful activities; prevent- ing persons who engage in unlawful activities and other from keeping property that was acquired as a result of unlawful activities; preventing property from being used to engage in unlawful activities; and preventing injury to the public that may result from conspiracies to engage in unlawful activities. Unlawful activity is defined to mean an act or omission that is an offence in Canada or is an offence outside of Canada if a similar act or omission would be an offence in Canada. An offence may be found to have been committed even if no person has been charged with the of- fence, or a person was charged with the offence but the charge was withdrawn or stayed, or the person was acquitted of the charge. The act can easily become an end-run around the criminal standard of proof. The Crown would essentially be entitled to withdraw a weak criminal charge in order to preserve its right to forfeit the indi- vidual's property on a lesser standard. Under the act, the Crown bears the onus H of proof on a balance of probabilities that the property is proceeds or an instrument of crime. On a motion by the attorney general in a pro- ceeding for a forfeiture order, among other orders, the Superior Court may make any or all of the following interlocutory orders for the preservation of any property that is the subject of the proceeding: an order restraining the disposition of the property; an order for the possession, delivery or safekeeping of the prop- erty; any other order for the preservation of the property that the court considers just. The test for granting an order is two-pronged. First, the court must be satisfied that there are reasonable grounds to believe that the property sought to be preserved is an instrument of unlaw- ful activity. Second, if the court is satisfied with the first part then, the court "shall" make the order "unless" it is clearly not in the interest of the justice to make the order. These provisions create a mech- anism for the attorney general to commence an in rem civil proceeding to preserve and determine whether property is the proceeds of an unlawful act. While property is essential to the attorney general's ability to commence a proceeding under the act, people are not. The attorney general can www.lawtimesnews.com COMMENT An uncivil remedy BY LEORA SHEMESH For Law Times istorically, a client charged with a crimi- nal offence would have personal prop- erty or moneys seized if the police had Speaker's Corner commence a proceeding against moneys, vehicles, and/or homes without ever naming a person as a party. The onus is on an interested party to estab- lish legitimate ownership. The courts have found it is unworkable for the Crown, as applicant, to disprove a respondent's ownership interest. While attacking the profit incentive of crime is clearly in the public interest, this act operates for persons who are innocent or otherwise were sub- jected to constitutionally invalid acts by police to additional hardship and punishment. The act may deprive people of their right to be secure against unreasonable searches and seizures. Section 8 of the Charter and its application to the act has still not been fully tested. When charges are stayed, with- drawn, or successfully de- fended and the search has been found to be unlawful, an accused person will still be faced with the potential loss of property seized by the police. The govern- ment can and often restrains property under the act beyond the case's conclusion, and the client must prove he is in possession of the seized funds or property for a lawful purpose. The fact that the client was subjected to an en- tirely unlawful search and seizure is of no moment. The blindness to the actual mechanism for the seizure combined with the reversal of onus places persons who have come through a difficult battle with the government vulnerable simply because they may not be able to continue to afford legal counsel; they may not have the emotional ability to continue a fight with the government, and they may not be able to provide all of the necessary trail of evidence to establish lawful ownership. Recently the Supreme Court of Canada in Chatterjee v. Ontario (Attorney General) reasoned that since the act does not seek to impose a pen- alty, fine, or imprisonment, there is no stigma as- sociated with a civil forfeiture of property order sufficient to constitute a punishment. Further, the court concluded there was no general bar to a province enacting civil consequences to criminal acts provided the province did so for its own pur- poses in relation to provincial heads of legislative power. This analysis rings hollow when the real ef- fect is punishment to the person and his or her family who are about to lose their family home. The Supreme Court of Canada reasoned that the purpose of the CRA was to make crime in general unprofitable, to capture resources tainted by crime so as to make them unavailable to fund future crime, and to help compensate private in- dividuals and public institutions for the costs of past crimes. Crime, it continued, creates costs to victims and to the public that would otherwise fall on the provincial treasury including health, policing resources, community stability, and fam- ily welfare. This sounds like a polite way of the government shoving its' hands into individuals' pockets, grabbing moneys without justification. The other dilemma yet to be defined is that the federal forfeiture provisions will no doubt be displaced by the CRA with its lower threshold of proof. Crowns may no longer be forced to seek the forfeiture of property under s. 490 of the Criminal Code and satisfy a justice the property was pro- ceeds of crime. Instead, the attorney general will simply bring forth a civil remedies application with a much lenient and lower standard. Since 2002, Ontario has seized $16 million in property, with 73 per cent of it from drug- related cases. What is not revealed is how many of those cases ended with the government un- able to prove those charged were guilty of any specific criminal offence. What are we to say to those who have been found not guilty of a criminal offence, and yet may still face the loss of their family home? How do we reconcile the differences between a criminal system and that of a civil one that more harshly punishes and criminalizes them? LT Leora Shemesh practises criminal law in Toronto. Her e-mail is law@leorashemesh.com. PAGE 7