The Yukon government is poised to pass a law that would give the territory sweeping new powers to seize property believed to be the proceeds of crime, without a criminal conviction or even laying a criminal charge.

The proposed Civil Forfeiture Act – expected to be passed during this spring sitting of the legislature – would make the Yukon the ninth jurisdiction in Canada to enact such legislation.

For the territory, it would enable the Justice department to take ownership of money, vehicles, houses and other property believed to be earned or purchased through unlawful activity.

While the same power currently exists in the federal Criminal Code, subject to a criminal conviction, the Civil Forfeitures Act would allow the territory to seize property by suing for it in civil court.

This has riled civil liberties and criminal lawyers associations nationwide. They argue it permits police and prosecutors to do an end run around the higher standard of proof required in criminal law.

According to the Criminal Code, guilt must be proved "beyond a reasonable doubt,” whereas the civil standard of proof is based on a "balance of probability.”

Ontario was the first province in Canada to introduce such legislation, known in that jurisdiction as the Civil Remedies Act, and since 2003 has seized upwards of $10 million in cash and property.

Outlaw biker gangs appeared the primary target of that province's act; however, the potential for the law to be misused is what worries liberty advocates.

Following a Supreme Court decision last year that upheld Ontario's right to seize cash and property believed to be the proceeds of drug dealing, the British Columbia Civil Liberties Association (BCCLA), an intervener in the case, offered its scathing assessment.

"We have always had real concerns not only with the constitutionality of forfeiture legislation, but also with how it has been implemented by provinces,” Grace Pastine, litigation director for the BCCLA, said in a statement following the Supreme Court's April 2009 ruling.

"There continues to be a real risk that the legislation will be inappropriately used to by-step Charter protections that are available to individuals in criminal proceedings.”

But Yukon Justice Minister Marian Horne is touting the proposed Civil Forfeiture Act as "another tool to stop unlawful activity from occurring in (the territory). We are doing what we can to build safer and healthier communities.”

In a March 29 press release, Horne's department suggests the 2009 Supreme Court ruling is evidence the Yukon's civil forfeiture law is in line with the Charter.

Designed to dovetail with the territory's Safer Communities and Neighbourhoods Act (SCAN) that allows the eviction and lease nullification of tenants based on suspicion of drug dealing, prostitution or running a gaming house, the forfeitures act goes one step further.

In 2007, the NDP was instrumental in bringing SCAN to fruition, but the proposed Civil Forfeiture Act has NDP Leader Liz Hanson urging the government to proceed with caution.

"There's still some recurring issues that come up about civil liberties, and I think we need to be thoughtful and careful as we deliberate this,” she told the Star.

"It's all good for the ‘hard on crime' message but it begs the question: what if you get somebody who is not involved in crime ... there needs to be something that speaks to redress this.”

Among Hanson's concerns is the Civil Forfeiture Act's 10-year retroactive clause and another statute that allows for property seizure even in the event somebody is found not criminally responsible by reason of insanity.

Instances where a landlord is renting to a suspected drug dealer or even if a vehicle owner is unknowingly transporting a suspected drug dealer, it is possible for both the landlord and car owner to be ensnared.

When confronted with these hypotheticals, Justice department spokesman Dan Cable said checks and balances would protect unwitting citizens.

"This (law) is going to be used relatively infrequently ... this type of leg is secondary to SCAN because it requires judicial oversight, so I kind of doubt you could get something past a judge,” said Cable.

"There's no accounting for people who do rogue things and I assume we screen our staff ... and the Crown (prosecutor) that we have prosecuting these cases wouldn't do that.”

Albeit successful in closing down a known Whitehorse drug den in 2008, SCAN failed its first test in Yukon Supreme Court last year.

In that case, Justice Earl Johnson overturned an eviction notice for suspected drug dealing because in his view, it was based on "weak” evidence.

The entire process was rushed, Johnson noted in his decision, and the director of public safety and (SCAN) investigations should have taken more time to prepare the case, and have it approved in court, rather than approving it himself.

But Cable said the Civil Forfeiture Act is a court-driven process and that a judge, not the director of public safety, would decide whether personal property could be

seized.

But as lawyer and civil libertarian Karen Selick opined in a January 2009 Globe and Mail piece, the Criminal Code requires 90-per-cent proof whereas the civil code only demands 51 per cent.

The Yukon Liberal Party caucus declined to comment for this story.