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Unlike criminal proceedings, where an accused person must be presumed innocent until proven guilty and only punished once their guilt has been proven beyond a reasonable doubt, civil forfeiture proceedings operate on the balance of probabilities, meaning that the state must merely demonstrate that an individual has probably done something illegal in order to obtain forfeiture of their property.

This has allowed for de facto civil prosecution of suspected criminals when the Crown does not have sufficient evidence to secure a criminal conviction. In some cases, the Crown doesn't even lay charges for lack of hard evidence, but in the absence of a believable explanation from the accused, the court will order forfeiture of valuable properties. This is a clear example of how civil forfeiture legislation shifts the onus away from the state and onto the accused to prove their innocence.

In other cases, the Crown has been able to achieve forfeiture after a criminal conviction has been secured and the defendant has served his or her time. This amounts to a circumvention of the rule against double jeopardy, and essentially imposes a second punishment which is, in many cases, far more onerous than the criminal penalty itself.

Because Canada's Charter of Rights and Freedoms does not explicitly protect property rights, and the Supreme Court of Canada found Ontario's civil forfeiture statute to be a valid exercise of provincial power, seven Canadian provinces are now using quasi-criminal legislation to confiscate individuals' property on the balance of probabilities, without extending any presumption of innocence.

Provincial civil forfeiture authorities have been known to claim that forfeiture is meant to be "compensatory" as opposed to "punitive," and can therefore be imposed alongside criminal sanctions. By separating this process from the normal criminal sentencing, however, provincial governments have opened the door to grossly disproportionate global punishments in a lot of cases.

In situations where forfeiture cases are appealed, Courts of Appeal have shown themselves to be even less sympathetic to defendants and more stringent in their application of civil forfeiture legislation.

Saskatchewan Court of Appeal, for example, recently overturned a decision of the Court of Queen's Bench stating that full forfeiture of a truck was "clearly not in the interests of justice" when the offence in question was a one-time sale of $60 worth of Oxycontin tablets. The Court of Appeal found that forfeiture of the truck was appropriate, and that the trial judge had failed to adequately consider the need to compensate society for the harm caused by drug transactions.

In another case, the Alberta Court of Appeal upheld a Court of Queen's Bench finding that the defendant's vehicle was merely "incidental" to the offence in question and should not be forfeit, but quashed the lower court's ruling granting costs to the defendant, forcing him to absorb the cost of his own defence despite the fact that he was successful. This is contrary to the normal rule in a civil action.

All in all, appellate courts have shown themselves to be allies of the government, and not of defendants, in regard to civil forfeiture actions.

Jeremy Maddock is the editor of Civil Forfeitre.ca, a comprehensive index of Canadian civil forfeiture cases and resources.

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