A weird and dangerous thing is going on today. A Superior Court in Ontario is going to consider an application to seize a man's retail bike shop, its contents and a couple of trucks under Ontario's proceeds of crime law. Here's the catch: the man, Igor Kenk, has not been convicted of any crime, and his criminal trial for bike theft and drug possession doesn't even begin until March 2010.
Now I believe this guy is a crook: police surveillance caught Kenk receiving stolen bikes; they found in his shop over five-hundred bikes that they were able to return to their original owners, and they found cocaine and marijuana. I think the guy is total scum.
But here's the problem: in our society it doesn't matter what I think or what the police think. All that matters (or used to matter) is what the jury thinks--after it has heard all the evidence, and after it has had time to deliberate.
Unfortunately, this isn't just a scheduling issue even though Kenk is pretty certain to be convicted (although nothing is guaranteed in criminal justice system). As this Toronto Sun article describes, a guy named Chatterjee had $29,000 seized by police because they said they smelled marijuana in his car. Was there any other evidence? We don't know because this case never went to trial. Unbelievably, Chatterjee was never even charged. The sense of smell is useful, but a smell doesn't hang around to be catalogued into evidence. (Note: a Toronto homicide detective once told me, "Don't believe that stuff in CSI. They just make it up.) So the police just seized Chatterjee's money because they figured he was a bad dude, possibly a drug dealer?
Or was there a different motivation? The money police seized goes to victims of crime and back to law enforcement in the form of grants. In other words, if we go down this road, police departments will be financially motivated to go hunting down the proceeds of crime more than the actual criminals. Getting a criminal off the street and into jail won't be as important as getting the criminal's money into police department budgets.
Now this won't stop good cops from going after murderers and rapists with all the effort they can muster, but what will it do to allocation of resources by upper echelon bean counters in a police department's comfortable offices? Will the drug squad get a fatter share of resources than homicide because they bring in more money? And if no conviction, or even charges are required, will our streets be any safer?
If Chatterjee is such criminal that police can seize his proceeds of crime, why isn't he in jail?
These are important questions, but here's what really disturbs me. I did a thorough check of the websites of the Toronto Star, the National Post, the Globe and Mail and the Toronto Sun on Friday, and only the Toronto Sun had an article about this threat to freedom from unreasonable search, deep in the website, the equivalent of page six.
The Toronto Star did have an article this morning about it, which seemed to suggest that it would help gentrify the neighborhood if the Kenk's shop was seized because he's a noisy and dirty. They did note that it might prejudice his criminal trial, and his defense attorney should be making that note too.
Wouldn't it be unfortunate if seizing Kenk's property resulted in having a conviction turned over on appeal because the civil seizure prejudiced his criminal trial? That's the problem: the cops get the money, but the bad guy gets away. Who is happy?
Not me. I occasionally ride my bike downtown , so I'd like Kenk and his network of bike thieves locked up, so that I'm less likely to have my bike stolen. That should be the first priority.
The Civil Remedies Act needs to be rewritten so that proceeds of crime can only be seized after a criminal conviction.
I do, however, applaud the cops who busted the Kenk. Hopefully next March, after a fair trial, the guy goes to jail for a long time. Those cops did their jobs well. It's the motivations of their bosses in suits that must be governed.
Freedom requires vigilance. It's too bad this is a page six issue for the mainstream media. It should page front page outrage.