alerted me to this article about police raids on alleged illegal poker games.
I'm somewhat familiar with the laws surrounding this, although I'm not a lawyer, and it seems to me that they might have a leg to stand on in some of these cases. (Bearing in mind that the article may well be based largely on statements from the police etc, though.) The spirit of the law, it seems to me, is in the right place in this regard: essentially, it's illegal to operate a gambling event or house for profit. Whether that was being done in all 5 cases is in some doubt, of course, and it wouldn't surprise me if only 2 or 3 are actually breaking the law.
The legislation surrounding proceeds of crime, however, is more problematic. The Criminal Code
is pretty reasonable (see section 462.37 in part XII.2), but some other recent laws are not so restrained. In particular, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act
doesn't provide for a lot of due process or privacy protection (see the Privacy Commissioner's Review
). The Controlled Drugs and Substances Act
also has forfeiture of property provisions which are based on similar balance of probabilities language. Worse yet, an Ontario law, the Remedies for Organized Crime and Other Unlawful Activities Act
, which allows the government to seize property as proceeds of crime based on balance of probabilities before the case even goes to trial
There's a lot of law-and-order and omg-terrorists rhetoric around this, but if we Follow The Money, it's not too hard to see this as a pretty crass cash grab. Once our governments have a revenue source, they're loath to give it up: remember, income taxes began as a temporary measure to pay for a war, and the GST is showing no signs of going away, despite political promises effectively forgotten. Many of these laws have been tightened quite recently, for example by Bill C-53
The raid on these poker games has netted some cash which might be legitimately argued to be money intended for illegal use and/or proceeds of crime, but the TV? Shouldn't it be necessary to prove something
beyond reasonable doubt before business fixtures like this are forfeit to the state? It's alarming, to say the least, that the police have carte blanche to seize anything and leave one to try to out-argue them before a judge. The practice of testilying
is particularly tempting in cases like this where the burden of proof is more onerous for the citizen and the state stands to gain materially through the disposal of the forfeit property. Got pot? Bye-bye, car... if you have enough that they can charge you with intent to traffic, you have to show that you didn't earn the money to buy that car by selling drugs. And that's just the situation the operators of these establishments are in now: they're without the means to run their businesses until they can get onto court timetables and clear themselves if they are innocent.For a good discussion of Canadian property rights in general, see this presentation.