Civil Forfeiture and Peace Bonds as Precriminal Strategy
Today we officially launched, through Routledge Press, Criminal Law and Precrime: Legal Studies in Canadian Punishment and Surveillance.
"The evolving legal interpretation of harm has significant implications concerning governance. While precriminal creep can be observed within Canadian criminal law, this philosophical shift has also occurred within other legislative branches, specifically administrative law.
The administration of punitive legal sanctions is demonstrative of this ideological change in law’s conception of harm and a novel risk-based approach. With precaution, prevention, and security at the forefront of legislative aims, sanctions have been developed outside of criminal law and the criminal justice apparatus, negating the law’s responsibility to afford criminal protections when responding to precriminal or criminal conduct.
The net result is administrative control over matters which, on their face, would appear to be covered under the criminal law, but which instead have been relegated to administrative procedures.
There is an overlap between our criminal and non-criminal law systems, bringing to light the non-criminal courts’ growth in powers and ability to govern the moral public sphere much like our criminal court system: subjecting individuals to punitive measures without affording them criminal law’s procedural protections, in the interests of allowing them to exist within a society preoccupied with risk. Administrative sanctions entertained in non-criminal law proceedings have the same capacity as in the criminal to restrict or limit behaviour after the fact, or provide for punitive measures to be imposed for violating social norms often, on the basis of suspicion of criminal behaviour.
Due to our neoliberal exigent climate of exceptional circumstance and its focus on individual responsibility, the state’s approach to governing criminal and precriminal conduct has been altered; power has moved beyond the state to ancillary networks and alliances which exercise ‘government-at-a-distance’. These ancillary networks provide a legal space to interfere with civil liberties absent a criminal offense.
Civil property forfeiture legislation which results in property seizure prior to or in anticipation of the criminal process allows restrictions to be placed on otherwise legal behaviour and has the consequence of seizing the property of those who have not been convicted of criminal offences. The result is an insidious crossover of criminal law into the administrative sphere without the magnitude of due process protections afforded in the criminal process. This provides the state with the means to notionally construct guilt absent criminal proceedings, removing the fundamental obligation of protections, such as the presumption of innocence.
The migration to administrative processes and systems allows for precriminal offenses to be adjudicated by law without requirements normally adhered to in the criminal process. The administrative approach entertains subjective considerations of (risk of) harm to be weighed and balanced against the probability an offense has taken or will take place.
Many Canadian provinces (and indeed most states in America) have chosen to embrace the concept of civil liability through the process of civil forfeiture in order to ensure that ‘crime does not pay’. Legislation has also extended the scope of peace bonds, a civil order which places restrictions on the liberty of the subject of the bond, allowing for a novel, ‘specialized’ peace bond application that blurs the line between civil and criminal law. Both civil forfeiture and peace bonds have become technologies of crime control and punitivity, but they exist outside of the realm of the criminal law.
With respect to civil forfeiture, civil courts, now the functional delegates of criminal adjudication, determine whether the property at issue is the proceeds of crime, on reduced standards of proof. This occurs in the absence of Canadian criminal justice safeguards, since the process can be viewed as the state acting against a piece of property rather than the state acting against a human. On the other hand, peace bonds have expanded their scope, resembling sanctions similar to that of probation following criminal conviction.
An underlying logic of precaution undermines the new ideological linkage between criminal and civil court systems, allowing for a continuous and seamless relationship between the pair. Historically, the courts have guarded the distinction between the criminal and administrative law. Justices Cory and L’Heureux Dubé famously described this distinction in R. v. Wholesale Travel Group Inc. (1991: section I): "It has always been thought that there is a rational basis for distinguishing between crimes and regulatory offences. Acts or actions are criminal when they constitute conduct that is, in itself, so abhorrent to the basic values of human society that it ought to be prohibited completely."
We argue that the shift of matters traditionally within the criminal sphere into the regulatory sphere is a manifestation of precriminal approaches to crime control in Canada. These are processes which occur prior to or in anticipation of any criminal conviction and in the name of prospective and precautionary harm prevention."