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.
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 in Chatterjee v. Ontario, seven Canadian provinces are now using quasi-criminal legislation to confiscate individuals’ property on the balance of probabilities, without extending any presumption of innocence.
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 Ontario (Attorney General) v. Lee, for example, the Crown didn’t even lay charges for lack of hard evidence, but in the absence of a believable explanation from the accused, the court ordered forfeiture of a house worth approximately $457,000. 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, such as Alberta (Justice and Attorney General) v. Chan, 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.
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 civil forfeiture cases which are appealed, Canadian Courts of Appeal have generally shown themselves to be even less sympathetic to defendants and more stringent in their application of civil forfeiture legislation.