In the Chatterjee case, the Supreme Court of Canada unanimously upheld provincial civil forfeiture laws, finding them consistent with the balance of powers described in Sections 91 and 92 of the Constitution Act, 1867.
The Defendant, Robin Chatterjee, had been found in possession of various pieces of equipment known to be useful in marijuana grow operations, as well as $29,020 in cash, all of which was seized by the provincial government. No drugs were found during the search of Mr. Chatterjee’s vehicle, and police declined to lay charges for lack of evidence.
The Province of Ontario, however, commenced forfeiture proceedings arguing that the money in Mr. Chatterjee’s possession was, more likely than not, proceeds of crime. The Ontario Superior Court of Justice (and subsequently the Ontario Court of Appeal) agreed with this submission and ordered that the money be forfeit to the Crown.
On appeal to the Supreme Court of Canada, Mr. Chatterjee’s challenged the constitutional validity of Ontario’s Civil Remedies Act, arguing that the province was essentially performing a criminal law function, and thereby encroaching on the federal jurisdiction in this area. Justice Binnie, writing for a unanimous court, rejected this argument, holding that civil forfeiture is a legitimate function of the provinces:
The CRA is an enactment “in relation to” property and civil rights, and as such its provisions may incidentally “affect” criminal law and procedure without doing violence to the division of powers. The fact the CRA aims to deter federal offences as well as provincial offences and indeed offences committed outside Canada, is not fatal to its validity. On the contrary, the very generality of the CRA shows that the province is concerned about the effects of crime as a generic source of social ill and provincial expense, and not with supplementing federal criminal law as part of the sentencing process. While it is true that forfeiture may have de facto punitive effects in some cases, the CRA does not require an allegation or proof that any particular person committed any particular crime. Property may be forfeited under the CRA if, on a balance of probabilities, it is demonstrated that the property constituted the proceeds of crime in general without further specificity.
Contrary to popular opinion, the Chartterjee case does not uphold the constitutional validity of all civil forfeiture proceedings in all circumstances. The court acknowledges that the Civil Remedies Act “may have de facto punitive effects in some cases,” but is silent on whether and how the Charter might apply in which cases.
For example, it is clear from Alberta (Minister of Justice and Attorney General v. Squire, 2012 ABQB 194 that a breach of Charter rights on arrest can be used to defeat a civil forfeiture claim. In the case of a punitive civil forfeiture claim, the right to the presumption of innocence and to be spared double jeopardy might (or at least should) also come into play.
Decided by the Supreme Court of Canada on April 17, 2009.
Click here for the full text of the decision.