Civil Forfeiture & the Charter

In Ontario v. Chatterjee, civil forfeiture statutes were found to be a valid provincial power, pursuant to Section 92 of the Constitution Act, 1867. The Constitution Act gives the provincial governments jurisdiction over “property and civil rights” and the federal government jurisdiction over criminal law issues. In finding provincial civil forfeiture legislation constitutional, the Supreme Court of Canada stated that such laws were primarily concerned with property and civil rights, as opposed to criminal law.

Various provincial governments have taken Chatterjee as a declaration that their respective forfeiture statutes are constitutional in all circumstances, regardless of how they are applied. British Columbia and Alberta, in particular, have relentlessly pursued forfeiture remedies in the wake of the Chartterjee decision.

One issue that has not been conclusively resolved by the courts, however, is the precise interplay between civil forfeiture and the Charter of Rights and Freedoms, which establishes certain legal rights such as trial within a reasonable time, freedom from double jeopardy, freedom from self-incrimination, and freedom from cruel and unusual punishment.

The Alberta Court of Queen’s Bench has already found that Charter remedies can apply to evidence collected illegally, and that such evidence can be excluded in civil forfeiture cases. Whether legal and procedural rights apply to civil forfeiture cases, however, is a matter of debate.

Provincial governments have argued that the legal rights delineated in the Charter apply only to a “person charged with an offence,” which is the plain and ordinary language of Section 11 of the Charter. Since forfeiture proceedings are “civil” in nature, it might be argued that Defendants are not “charged with an offence” and therefore do not benefit from the same procedural safeguards. Furthermore, it can be argued that property rights are not explicitly protected in the Charter of Rights and Freedoms.

The Supreme Court of Canada in R. v. Wigglesworth, however, found that Charter rights might apply to civil and regulatory proceedings where the defendant is not “charged with an offence,” but is nevertheless facing a “true penal consequence” which is punitive in nature:

“This is not to say that if a person is charged with a private, domestic or disciplinary matter which is primarily intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity, he or she can never possess the rights guaranteed under s. 11. Some of these matters may well fall within s. 11, not because they are the classic kind of matters intended to fall within the section, but because they involve the imposition of true penal consequences. In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity.”

In Chatterjee v. Ontario, in finding Ontario’s civil forfeiture legislation to be constitutional, the Supreme Court of Canada stated that “forfeiture may have de facto punitive effects in some cases.”

There remain some serious legal questions therefore, as to what if any application the Charter might have in cases where forfeiture of property results in a “true penal consequence” for the defendant.

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