Monday, November 30, 2009

Facts Don't Fit Government PR Agenda?

I read with interest and bewilderment the following comment from Alberta Justice Minister Alison Redford in the government's latest self-congratulatory press conference regarding Alberta's civil forfeiture legislation:

The government was met with skepticism last year when the law was introduced, but the Supreme Court of Canada has reviewed similar legislation in Ontario and ruled it is not unconstitutional, Redford said.

"The people who were skeptical last year as to whether or not we'd be able to have our legislation upheld were proven wrong. The legislation is constitutional. We haven't had any constitutional challenges here," she said.

Well, let's see, the Minister must be referring to the SCC decision called Chatterjee v. Ontario (Attorney General)

It is true that the Chatterjee decision did say that the provinces were competent to pass such legislation based on the constitutional division of law making powers between the federal and provincial governments, however, that is hardly the complete story.

Specifically, the SCC only ruled upon the division of powers issue and then only with respect to the proceeds of crime sections of the Ontario legislation. The sections pertaining to "instruments of crime" (i.e. cars being used to facilitate crime rather than cars having been purchased with ill-gotten gains) were expressly not part of the SCC decision:

The application judge declined to permit the appellant to challenge Part III of the CRA dealing with instruments of crime because, although some of the seized items were alleged to be instruments of crime, Mr. Chatterjee disclaimed ownership of them. Loukidelis J. also rejected a challenge under the Canadian Charter of Rights and Freedoms. Neither issue is pursued in this Court.

So I boldly say that us skeptics have not yet been proven wrong.

Whether the provinces have legislative authority to pass laws pertaining to instruments of crime has not been decided by the SCC (although, based on the reasoning from Chatterjee, the division of powers issue may well be decided in the same manner).

Whether the particular procedures and substantive forfeiture mechanisms for either proceeds or instruments are Charter compliant (the Charter being part of the Constitution) has also not been decided by the SCC and Ontario's legislation is far from identical to Alberta's in this regard.

More troubling for me, however, is the assertion that there have been no constitutional challenges to the Alberta legislation.

I have personally participated in the filing of two such constitutional challenges, one of which is set for hearing in an actual courtroom before an actual judge in the Court of Queen's Bench in January, 2010. This hearing was scheduled by court order on October 5, excess of 50 days prior to Minister Redford's planned and scripted statement that no such challenges exist.

In fairness to the Minister, the earlier challenge that I filed was withdrawn by my client after Ms. Redford decided to release his SUV back to him. Apparently, notwithstanding that the government previously had the SUV in its possession pursuant other federal seizure legislation, Minister Redford didn't realize that the vehicle she swooped down upon was not able to be driven and in such a state of disrepair that it was worth tens of thousands of dollars less than the residual value owed to the lessor (that's fancy law talk for the government devoted resources to use their special legislation to seize worthless property only to turn around and give it back since they had no possible way to benefit from having seized it).

I wonder how many of the 61 vehicles Ms. Redford brags about seizing met the same fate as in my previous case? I wonder how much of the $11 million in value has actually simply been returned to the lessor or other beneficial property owner. I suppose I would ask the Minister, but given that my constitutional challeneges apprently don't exist, I don't think that I would place much reliance on the government's official response.

I wonder if we should question the veracity of the government's pervasive assertion that they are only targeting gang crime with these civil forfeitures? They wouldn't just say that to continue to get public support for yet more law enforcement power over the citizenry would they?

A current elderly client fighting the constitutionality of Alberta's Attorney General taking away her condo would beg to differ.