Ontario Attorney-General James Flaherty announced this month that legislation would be introduced in the fall to circumvent Ottawa's criminal law, which, he says, "hasn't done very well in terms of discouraging organized crime in Canada." Lobbied energetically by police forces, encouraged by political consultants who claim that a hard-on-crime stance pays off at the polls, and reassured by crime "researchers" who know on which side of their daily bread the butter gets spread thickest, Queen's Park stands poised to destroy the distinction between civil and criminal processes, reverse the burden of proof, smear citizens with the taint of criminality without benefit of trial, and turn police forces into self-financing bounty-hunting organizations.

If common sense does not suffice to raise a warning flag, a glance at recent U.S. history will reveal a whole field of furiously flapping red banners.

In the 1980s, America was supposedly facing an unprecedented epidemic of drug use, the work of alien crime cartels dripping filthy lucre. The fact that it wasn't true did not prevent U.S. law enforcement from concluding that the best way to fight back was to take away the profits of crime. This, in theory, would remove both the motive (profit) and the means (working capital) for more crimes.

In the old days, if the state wanted to grab someone's property, it had to prove beyond a reasonable doubt, first, that a person had committed a crime and, second, that the assets the state wanted to take came from that crime. That proved something of an obstacle. Then came civil forfeiture.

Instead of proceeding against a person in a criminal process -- where people could obstruct true justice by invoking frivolities such as the right to counsel, defense against double jeopardy, and the requirement of proof beyond reasonable doubt -- the government could move directly against a person's property without the need to charge the individual with an offence. Not only did property have no constitutional rights, but the standard of proof was lowered to a mere balance of probabilities. Indeed, the prosecutors soon found ways to lower it even further. Best of all, in 1984 came a law that gave police the right to keep what they seized.

Thereafter the police seized property on "probable cause," which could amount to nothing more than hearsay from paid and anonymous informants, and then reverse the burden of proof. Furthermore, even if the government chose to first bring a criminal proceeding against the owner, and lost the case, it could relitigate the same facts against the property. It faced only the requirement of meeting a civil (balance of probabilities) standard, and could be reassured that it had already worn down the owner's resources and therefore his ability to defend himself.

Matters have not improved. If the police believe someone made a phone call from someone else's house to strike a dope deal, they can deem the house an "instrumentality" of crime and seize it. Parents wake up to find their car (provided it is sufficiently luxurious) forfeited to the police as an "instrumentality" because their teenage kids tried to use it to score a joint. Black street people in Washington have been shaken down by beat cops for sums as little as $4, only to learn that they'd have to post a bond of at least $250 and hire a lawyer to protest the seizure.

In airports, customs officers and police use drug-courier "profiles" to target people and grab their money, with ethnic minorities getting most of the attention. This is supplemented by the use of drug-sniffing dogs that pick up traces of cocaine on currency, thereby establishing probable cause (this despite the fact that tests have shown 80 to 93 per cent of U.S. currency carries enough drug residue, a minuscule amount, for dogs to pick up. Indeed, some dogs have become so well trained that they now react to the smell of the money rather than drug residue -- producing the intriguing possibility that simply having cash in a wallet constitutes probable cause for it to be seized.)

Forget considerations of justice in this Alice in Wonderland world. Even from the point of view of pure law enforcement, the results have been appalling.

The police are sometimes given bonuses based on how much they grab. The result is to shift resources away from violent criminals, who would be a genuine threat, toward wealthy ones. Another result has been a reduction in charges filed under laws where there would be fines (which are more or less fixed in amount, and paid to the public treasury), in favour of actions under laws where unlimited amounts of assets can be seized.

Forfeiture frenzy also skews the choice of who gets prison time and who takes a walk. Wealthier people can bargain their way out by offering the police part of their property, while the poor get hard time.

In other ways, too, these laws make police forces, literally, partners in crime. Arizona state troopers spent 18 months undercover as couriers driving 13 tons of marijuana from Mexico in a "controlled delivery" operation from which every gram hit the street. At the end, the police seized $3-million (U.S.), permitting the assistant attorney-general to declare the operation "a success from a cost-benefit standpoint."

The whole process reached its logical conclusion when a Florida sheriff set up a "forfeiture trap" on Interstate 95 to wave down cars and seize any cash he found. The result: an average of $5,000 a day for the law-enforcement budget. When people noted that most of those whose money was seized were blacks or Hispanics, the sheriff replied that most drug dealers were blacks or Hispanics. When asked how he was so sure the money came from crime, he pointed out that few people -- whose cars were stopped at gunpoint -- bothered to ask for a receipt.

Despite repeated exposés of gross abuses, despite incalculable suffering imposed on the innocent, the law enforcement community for years was able to mobilize enough clout to block even modest reforms. Finally, this spring, only a couple months before Ontario decided to climb on the forfeiture bandwagon, a few changes were pushed through.

These strengthen, slightly, innocent owner protection, provide indigent owners with counsel, and oblige the government to pay compensation if the claimant prevails. Although police can still seize on "probable cause," at least the government may in the future actually have to make a case -- on weak civil grounds -- before property is forfeited.

But the U.S. reforms came at a high price. The police also won an expanded list of crimes for which civil forfeiture could apply, the right to demand total proceeds instead of net earnings of alleged crimes (which greatly increases the amount they can grab), and the right to seize an entire bank account if they think some criminal funds (no matter how small the amount) at some point ran through it.

The ultimate justification offered for these legal atrocities is that they are necessary to combat those filthy-rich alien narco-barons. In reality, time after time, serious researchers have demonstrated that the underworld consists overwhelmingly of informal networks of small-time operators with short career life expectancies. Their earnings are generally modest and almost always blown on fast living, leaving little or nothing left to seize.

No one suggests those who commit crimes for profit are pleasant people. Some are rapacious; a few are violent; all should be held accountable for their actions. But the notion that legitimate society is under siege by fabulously rich crime cartels made up in equal parts of stone killers and Harvard MBAs, is Hollywood fiction.

Thus, civil forfeiture will continue to fill government coffers with the trailer homes, cars and motorboats of ordinary citizens, many of them innocent, with no sign of the narco-baron's yachts or gold-plated bathtubs. That's the lesson from the United States. Unless we stop it, it will be Canada's turn next.

R. T. Naylor is an economics professor at McGill University. He is a co-author of a recent study by the UN Drug Control and Crime Prevention Office.

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