Prior to his departure to the bench, Justice Brown was known in the academic and policy circles for his specialty in property rights (among others). He wrote and spoke on the law of expropriations, and so I wondered how long it would be before he confronted such an issue on the bench.
It turns out not long. He faced the question of asset forfeiture, something I have written about (in a negative fashion) in the past.
In Alberta (Justice and Attorney General) v. Echert, 2013 ABQB 314, Justice Brown was faced with an action to seize assets (two vehicles and cash) by the state on the grounds that they were being used in drug activities. This is a civil action, so the evidence need not be beyond a reasonable doubt.
Much of the evidence was based on the experience of a police office with respect to the types of activities he observed in the case of the individuals whose assets were being seized.
Justice Brown discusses the Alberta Bill of Rights (the Charter provides no property righst protections, so the individuals had to rely on Alberta's version of the charter), and notes that it does not help the individuals in this case, although he notes that they could have cited the Alberta Personal Property Bill of Rights, which covers chattels.
At the end of the day, however, Justice Brown does not rule for the state. He takes a strict statutory approach the question, and holds the state to the burden of proof under the asset forefeiture act. What he does is, therefore, is to scrutinize the evidence of usage of drugs. He finds, at the end of the day, that there was no specific evidence that these individuals were using drugs, as opposed to the generalized evidence that drug users engage in certain activities that these individuals were engaged in (read the case for the details).
Justice Brown's approach reminds of the approach the Supreme Court took with respect to Alberta's press restrictions in the 1930s long before the Charter was passed. The Court struck down Alberta's law (and other laws) on the grounds of federalism, even though there were clear rights violations (that had no legal enforcement back then).
I may write some more on this later, but I wanted to get this case out there, as it is an important case in the small (but growing) jurisprudence on property rights in this country.
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