Sunday, August 19, 2012

What are the real costs of Civil Forfeiture?

It is easy to put up statistics and make yourself look good and the Alberta Attorney General / Solicitor General, Jonathan Denis, has just had help from the Calgary Herald / Edmonton Journal in a feel-good story about the province's Civil Forfeiture Office (CFO) that is full of propaganda-like numbers:

Alberta gives 1.6 million seized from alleged criminals fund

So what are we to make of this?  Instead of just regurgitating figures, let me try to do a little analysis:

For the 5 year existence of the Victims Restitution Compensation Payment Act (VRCPA) the province has apparently seized $25.59 million worth of assets.  Slightly more than $5 million per year seems like a nice number, but wait...that's just what they have slapped preliminary court orders on.

Those ex-parte orders are obtained without giving notice to the property owner and without anybody opposing the CFO lawyers in court.

Not surprisingly, once someone is given an opportunity to come and argue against the government, the legitimacy of the initial seizure (and therefore that $25 million dollar number) doesn't hold up in a number of cases.

That is likely a major reason why of the $25.59 million seized, only $4.4 million (a mere $880 thousand per year) has been actually ordered to be kept by Her Majesty the Queen in Right of Alberta.  The quick math on those two numbers tells us that the CFO has convinced the courts to let it keep a mere 17% of the total value of property it has seized from Albertans.  (Admittedly, some of these cases will still be pending in court, so that percentage will likely go up some).

So why do police and government officials boast success rates of in excess of 95% on these cases?


     "...when police refer a case to a CFO, there is often plenty of evidence that can prove a case to the 
     lower civil threshold of balance of probabilities. This explains, in part, the extremely high success
     rate of CFOs—usually exceeding 95%."

     - Karl Wilberg, Director, Alberta CFO

Is 'success' being able to keep any money no matter how small?  If the CFO keeps $50 to cover photocopying and gives back a million-dollar home to its rightful owner does that count as a win?

I don't know, but if the former Justice Minister, now Premier Redford, is running such a transparent government, I think she should ensure that citizens of this province get the straight answers on this whole CFO program.  Can Minister Denis prove to us in black and white that the net balance sheet for taxpayers is actually not in the red?

Of course, one of the issues is that when the CFO swipes a house or a car there is often a bank that is first in line to collect proceeds.  But they know that up front in most cases because there is a registered mortgage or lien on the property.  So why report the big figure of $25.59 million at all?

Maybe part of the concern is ensuring that the program charges ahead and gets bigger every year without a full cost / benefit analysis?

Think about it; the "over 550 cases" the CFO says it has opened don't run themselves, they get handled by lawyers, who have offices, assistants, pensions and benefit plans.  There has been reported to be over a dozen Crown lawyers doing CFO seizure work in Alberta.  A senior Crown lawyer in Alberta can make more than $160,000.00 in salary alone.  Even if I really push the figures down, look at where we get:

10 lawyers making an average salary of $100,000.00 per year is a full million dollars worth of overhead.  If the average salary and head counts are higher, then this number gets way worse.

So, not counting any of the other stuff like support staff and employee benefits, the CFO is conceivably burning well over a million dollars every year and to date has successfully had forfeited only $880,000.00 annually.

This would mean once all actual costs are factored in the Alberta taxpayer could be going under by multiple hundreds of thousands of dollars every year by chasing money to use for victims programs.  But, again, these figures do not reconcile with Mr. Wilberg's public statements that his CFO brings in $1.50 for every $1.00 it spends.

When crime

     "Vehicle cases are “money-loser files” because the province has to pay towing and impound
     charges and other related fees, acknowledges Wilberg.

     But the plentiful cash-seizure cases make up for the vehicle losses. Overall, the program brings in
     $1.50 for every $1 spent by taxpayers on the initiative."

Where does he get the data for that statement?  I think the best I can say in trying to assess all of this is that we need the CFO to produce raw data so that critics and not just boosters of the civil forfeiture regime can fully analyze the real cost to Albertans.

I mean, on one of the first cases I was involved with under the VRCPA, the full value of the senior citizen's condo was given back to her and the CFO ended up minus more than $86,000.00 in costs that they had to repay to her.

On another, the CFO voluntarily gave back my client's BMW X5.  On yet another, they voluntarily dropped the seizure against my client's family home.  More recently, my client sold a seized property with the consent of the CFO and the matter was resolved by the vast majority of the proceeds being returned to him.

The bottom line, for me, is if this program is as good as the government says it is, then open the books for us all to revel in its splendor.  Let us see the actual revenue in against the expenditures out.  This legislation has been controversial since its inception, the CFO has suffered some setbacks
in court, and contrary to popular talking points, the actual constitutionality of the Alberta VRCPA is only just starting to be judged by the courts (and certainly has not been approved by the Supreme Court of Canada).

Regardless, just because Alberta can seize property from its citizens - guilty of a crime or not - doesn't mean that it should; especially if the real costs outweigh the benefits.

Michael Bates
Calgary Criminal Lawyer


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