B.2(n). In Rem Jurisdiction

Legal action cannot be brought against property; in rem jurisdiction is invalid.

Multiple cases across many jurisdictions involve the seizure of assets that “may have been involved in crime.” [1] These seizures are called “civil asset forfeitures.” In these cases, an obscure legal principle called in rem jurisdiction is a legal fiction that treats property like it can be guilty of crimes. That sentence is factual, but it is so absurd that my grammar checker couldn’t make sense of it as I typed. In fact, in rem is not a new concept. It has its roots in piracy and customs cases, where property needed to be taken, but the property owner couldn’t be reached. In current practice, property is seized, even when the owner is available. What’s worse, the owner may not have known, or reasonably have been expected to know, that their property “was involved” in a crime. Family cars have been seized when the teenage child made a minor drug deal, and so on.

All of this rests on a legal fiction that property can carry the taint of guilt. The fiction is ridiculous. Furthermore, the seizure violates the spirit of protections against unreasonable searches and seizures, if not the letter. There are patchwork attempts to reform the practice throughout the nation. This provision of the Charter bans all in rem jurisdiction, entirely.

---

[1] For specific cases and citations, an excellent resource is the Institute for Justice, which publishes reports detailing civil forfeitures.