Last summer, police pulled a man from the Toronto harbour, apparently drunk and soaked to the bone. Valentin Chygyrynskyy had allegedly steered his sailboat into another vessel parked along the harbour’s west wall and was tossed into the drink.
Police immediately impounded his 25-foot boat, the Kittiwake, and now provincial attorneys are trying to seize it using civil forfeiture laws that target property “related” to crime.
Chygyrynskyy has yet to be convicted for impaired driving 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 car — as well.
“I think it’s a brilliant idea,” said lawyer Craig Bottomley, who has experience in defending civil forfeiture cases. “It would have a fabulous deterrent effect.”
“We know jail doesn’t deter people (from drinking and driving), but losing your car might,” he said.
The Ontario Civil Remedies Act is a Robin Hood law conceived as a way to take property from criminals and give the proceeds from its sale to victims. Yet as the Star has previously reported, no conviction — nor even a charge — is necessary for a seizure to take place.
This summer, 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 province contends 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 hasn’t established that (Chygyrynskyy) was even driving the boat,” said Joshua Krane, a lawyer who has argued a civil forfeiture case before the Supreme Court, but is not involved in Chygyrynskyy’s case. “Is sitting on a boat and having a drink grounds for taking the boat?”
While many of the targets of civil asset forfeiture may not be sympathetic characters, Krane says seizing their property without a conviction is in tension with the principles behind the presumption of innocence, including proof beyond reasonable doubt.
Last month, 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 Chygyrynskyy doesn’t speak English and can’t afford to hire counsel, but the issues involved are too important to rule on without both sides 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.
“It is not alleged that the boat was acquired with the proceeds of crime, or that it is used (as) a criminal enterprise,” wrote Corbett in his decision. “Rather, the basis on which forfeiture is sought is that Mr. Chygyrynskyy operated his sailboat while he was impaired from alcohol or drugs.”
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.”
In August 2013, Chygyrynskyy, 61, was swimming in the inner harbour and arrested after he took a breathalyzer test, blowing almost double the legal limit, said Det. Const. Dwayne King of the Toronto police asset forfeiture unit.
The Star was unable to reach Chygyrynskyy, who has no legal representative in the forfeiture case, for comment Wednesday evening.
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; in April this year, he was again charged with impaired driving and pleaded guilty.
In an interview, King said this “clearly” played a role in the decision to go after his boat.
“Taking away his access to the boat is not going to stop him — we can all go out and buy a new boat — but it then becomes a deterrent: ‘Do I want to lose another boat?’” he said.
King, who has been working on asset forfeiture with the Toronto police for more than six years, says 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.
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. King said his office passes along fewer than 50 cases a year to the Attorney General.
“The only items we send to civil (forfeiture) have some criminal taint to them,” he said. “We’ve got the checks and balances in place to make sure those borderline cases don’t make it.”
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.”
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.
“(Chygyrynskyy’s case) seems to fit within the criteria of the act,” said Bottomley. “But one would hope that the civil office would wait for the criminal charges to be determined before they made their application.”
Chygyrynskyy’s charges are due to be heard in court in February.