Wednesday, 10 September 2014

Can your boat or car be forfeited because you were drunk?

One day in the summer of 2013, the Toronto (Canada) police pulled Valentin Chygyrynskyy, 61 (hereinafter referred to as VC) from the Toronto harbour, apparently drunk and soaked to the bone. According to the police, VC had allegedly steered his sailboat into another boat parked along the harbour’s west wall and as a result of the collision, he was subsequently tossed into the water. The Toronto police saw him swimming in the inner harbour and arrested him after he took a breathalyzer test, blowing almost double the legal limit.

The police immediately impounded his 25-foot boat, the Kittiwake, and now provincial attorneys wish to have it seized by using their authority under the civil forfeiture laws that target property that is “related” to crime. As an example of how that law works would—suppose VC had a stash of illicit drugs in the boat that he had been transporting from the American shores across the lake.  That would be sufficient justification for the police to seize his boat.

However, in his case, he wasn’t transporting anything that was illicit in his boat. He was simply steering it while he edged it towards the dock and did this while he was allegedly drunk.

VC has yet to be convicted for impaired sailing his boat in the case, but the seizure of his boat is going ahead regardless. If the case is successful, it could set a precedent with serious implications for drunk drivers on both land and water: not only can you lose your licence and be sent to prison, but soon you might stand to lose your boat or your car as well. This has never happened in Canada as of yet.

Lawyer Craig Bottomley upon hearing of this case said, “I think it’s a brilliant idea. It would have a fabulous deterrent effect.”

He may be right because in a great many cases of drunk driving, going to jail doesn’t deter people from drinking and driving however, losing their car actually might deter these drunk drivers from driving their cars while they are drunk.

The Ontario Civil Remedies Act would appear to be a Robin Hood law conceived as a way to take property from criminals and give the proceeds from its sale to their victims.

Neither a conviction nor even a charge is absolutely necessary for a seizure and forfeiture to take place.

Recently, an Oshawa couple had a portion of the value of their house seized even though drug possession charges against them were dropped. In Orillia, a landlord who rented rooms to homeless people could lose his property because the provincial authorities contend that tenants paid rent with money made selling drugs.

Critics point out that because it’s easier to prove a case in civil court than in criminal court, the forfeiture process has become a parallel justice system for weak cases.

“The Crown (prosecutor) hasn’t established that VC was even driving the boat,” said Joshua Krane, a lawyer who has previously argued a civil forfeiture case before the Supreme Court of Canada, but is not involved in VC’s case. He asked a rhetorical question, “Is sitting on a boat and having a drink grounds for taking the boat?” No it isn’t. For such a law being enforced, it could also mean that if you were drinking alcohol in your house and were drunk but causing no problems whatsoever, the authorities could still seize and sell your house. To do so under those circumstances would be outrageous.

While many of the targets of civil asset forfeiture may not be sympathetic characters, surely seizing their property without a conviction is in conflict with the principles behind the presumption of innocence, including proof beyond reasonable doubt.

As an example, imagine being arrested because you were found staggering in your house by the police and after smelling alcohol on your breath, they presumed that you were drunk. So while you are waiting for your trial, your house is sold in an auction. Then a year later at your trial, it was explained to the court by your physician that you were suffering from diabetes. Diabetics on occasion have been known to have alcoholic breath.

I once represented a man charged with being drunk while he was sitting in his car with the motor running. I was able to convince the court that he was not drunk when he was seated in his parked car because he was a diabetic and the police smelled his alcoholic breath and presumed that he had been drinking even though there were no bottles of liquor or beer in his car.  He was acquitted.

In August of this year, Superior Court Justice, David Corbett appointed a lawyer to research civil forfeiture and counter the Attorney General’s argument for seizing the boat. In an “endorsement” of the lawyer, Corbett explained that VC doesn’t speak English and can’t afford to hire counsel, but the issues involved are too important to rule on without both sides being represented.

Corbett cautioned the lawyers representing the Ontario Attorney General’s office about the implications of going after a boat for an incident in which no one was hurt.

I am not fully convinced such an argument by itself is a valid one. If a drunk  driver of a car smashes into three cars and damages all three of them but no-one is hurt because he was alone and seat-belted in his own car and there was no-one in the other cars, are we to believe that he can’t be charged with driving his car while his driving was impaired? Not to charge him would be ludicrous. Even if VC didn’t hit the other boat and alternatively was sailing his boat in a dangerous manner because he was drunk, he could still be convicted of sailing his boat while his ability to do so was impaired. 

However, the real question that will be before the court is; if the boat was not used for criminal purposes, such as transporting illicit drugs or was part of a criminal enterprise, will a forfeiture of the boat be legitimate because his ability to sail the boat in safety was hampered because of him being drunk when he was sailing the boat in the Toronto harbour?

I suppose if a car can be seized because the driver was drunk it follows that so can a boat.

Corbett noted: “There is a significant legal question as to whether the Civil Remedies Act can and does extend to forfeiture of property in these circumstances. These are important issues that could have significant implications for a great many people.”

Unfortunately for VC, this was not his only offence of being drunk. Court records show that he has been charged with impaired or dangerous driving on at least five occasions in the past seven years, not including last summer’s boating incident. He was convicted once, had charges withdrawn once, and has two ongoing cases still not dealt with. In April of this year, he was again charged with impaired driving and pleaded guilty. He was prohibited from driving a car for a year. He should have been prohibited from sailing a sailboat also. But there is not current law on the books that allows such a prohibition.  
His history of being drunk while driving a vehicle certainly played a major role in the decision to go after his boat.

Taking away his boat from him is not necessarily going to stop him if he has the money to buy another boat. I would normally deter anyone else who loses his boat. It would then become a deterrent because if he is caught again, he would lose his second boat also.  

‘Seizing property is a very effective deterrent in a system where criminal charges are often dropped on technicalities or because of a limited budget to prosecute cases. Of course, such forfeitures do raise that nagging question—could the defendant have been really innocent?

Unlike the situation in the United States, where billions of dollars of property are seized every year by police forces that get to keep the proceeds, civil forfeiture in Ontario is relatively rare and the proceeds go into general provincial coffers. In Ontario, there are fewer than 50 cases a year sent to the Attorney General for seizures and forfeitures of property of any kind.

The people in charge of enforcing the Forfeiture Act have checks and balances in place to make sure those borderline cases don’t result in forfeitures. The question the Attorney General has to face is; IS VC’s case a borderline case?

The Civil Remedies Act stipulates that a vehicle can be seized if it “was or is likely to be used” in impaired driving and the driver has had his or her licence suspended twice in the past 10 years.

But in VC’s case, one would hope that the civil office would wait for the criminal charges to be determined before they make their application VC’s charges are due to be heard in court in February 2015

Since 2003, the Ontario government has seized $44.6 million in property, including 18 vehicles, using the Civil Remedies Act. The Attorney General’s office said at least three of the vehicles were involved in “repeat drinking and driving offences. That being the case, it is conceivable that CV’s boat will be forfeited. 

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