Debates of Sept. 28th, 2005
House of Commons Hansard #127 of the 38th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was organized.
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September 28th, 2005 / 4 p.m.
Richard Marceau Charlesbourg, QC
Madam Speaker, I thank the hon. member for Saint-Maurice—Champlain for his question. I also want to thank him for his work as a member of Parliament. He is one of the most diligent members in the House of Commons, and he makes a rather exceptional contribution to the questions and comments period. He always presents an opinion that benefits not only the various speakers in the House, but all MPs, because he has broad political experience. He sat as an MNA in Quebec City. So, I thank him for his public service, for the work that he does and for the time that he dedicates to his fellow citizens, particularly considering that, at his venerable age, he could easily be doing something else. But he has decided to continue to serve his fellow citizens in the public domain, and to serve a cause that is so dear to him, namely the independence of a country about which he feels very strongly, Quebec.
I will conclude by simply telling my colleague that, under the bill, the state can confiscate the assets belonging to criminals. I will provide a more detailed reply in a few moments.
Joe Comartin Windsor—Tecumseh, ON
Madam Speaker, I am pleased to speak to Bill C-53. This legislation has come up in the justice committee in a variety of ways over the last several years and certainly in the last year that I have been my party's representative on the committee. In the course of reviewing this proposed legislation and some of the provincial legislation where there is a corresponding jurisdiction, it is obvious we have to be careful about how we use the legislation once it is in force.
From that perspective, my party supports the principle of the bill, as do all parties in the House. The basic principle is that proceeds of crime should be forfeited and that the Crown should not have to prove what are proceeds of crime using the criminal standard, but rather using the civil standard. Rather than having to prove beyond a reasonable doubt that the gains were from criminal activity, the prosecutor would only have to establish a reasonable belief that there was a gain. The onus would shift to the convicted person to establish that the assets, the cash or whatever the assets are, were not received as proceeds of a crime.
There is a jurisdictional issue here. Manitoba and Ontario both have legislation that deals with the proceeds of crime. We have to be very careful that we do not further complicate the receipt of these assets by the Crown by overlapping jurisdictions. For that reason, when the bill goes to committee, as it obviously will from the support it has received, that will be one of the issues that will have to be addressed. Hopefully, we will hear from provincial attorneys general or their representatives with regard to their position on the bill.
There is one that gives me greater concern and I have expressed this to my confreres on the committee. I have heard from the Canadian Bar Association and other legal groups. They are concerned about the reverse onus applying to assets that are mixed with those of other individuals.
The commercial wing of the Canadian Bar Association used the example of a person who was in a business relationship and unbeknownst to that person, one of the partners or associates had been engaged in organized crime activity and some of the money invested in the firm had come from those activities, but the person was an innocent third party. That person would be faced with the Crown moving against an asset in which the person had an interest. It is important that we build in protections for that business partner. I believe it is possible to do that without undermining the effectiveness of the legislation, but the legislation as drafted does not address this point, at least not to my satisfaction.
The second area where we run into this is with respect to family assets. The immediate stereotype involves someone in a full time relationship with another person. We assume that individual would know if the other person was engaged in organized crime or drug activity, the two criminal areas that the clauses of the bill control, but that in fact is not the case. It is not unusual for family members—and it does not necessarily mean a spouse or a partner; it may be a more extended family member—with joint assets with the person who has been convicted of an offence to have no knowledge that the asset was obtained by way of proceeds from crime. We need to be sure that we protect those innocent third parties.
There is one final point that I want to make, and this came up in a completely different context. The commissioner of the RCMP was before the committee, and I have to say that my memory is fading on this point as I cannot remember if he was before the justice committee or the subcommittee on public security. He raised concerns about police forces becoming dependent on the proceeds of crime. Where these funds go is also very much an issue.
Commissioner Zaccardelli was very clear that he felt it was inappropriate for any police force in this country, and I think he would probably say anywhere in the world, to become dependent as the recipients of the proceeds of crime once they are forfeited to the Crown. That is another issue that very much has to be addressed, with regard to the role that the crown attorneys and the police forces would play at the local level. That needs to be addressed.
Along the same lines, we do need to hear from the provincial attorneys general, at least some of them who have corresponding legislation.
I believe those are all my comments. We will be very much supportive of this bill going to the committee. I hope the committee will be able to deal with it in an expeditious manner and have it back before the House in short order with the proper protections built in.
Peter Adams Parliamentary Secretary to the Minister of Human Resources and Skills Development and Minister responsible for Democratic Renewal
Madam Speaker, I am pleased to join the debate on Bill C-53 regarding proceeds of crime.
Bill C-53 would be a very worthwhile addition to the proceeds of crime provisions already in the Criminal Code. In particular, it would add the important reverse onus measure, which my colleague has just been discussing, that can apply in appropriate circumstances to applications to forfeit property. It also makes a number of practical improvements to the existing proceeds of crime application procedure, a procedure that will continue to exist in addition to the new reverse onus measures.
I will begin by speaking in more detail about the way in which the new reverse onus provisions of Bill C-53 would operate. The reverse onus forfeiture power would be available after conviction for a criminal organization offence as defined under the Criminal Code that is punishable by five or more years of imprisonment. It would also be available upon conviction on indictment for certain drug offences under the Controlled Drugs and Substances Act.
Under the proposed scheme, the court would have to be satisfied on a balance of probabilities that either the offender has engaged in a pattern of criminal activity for the purpose of providing the offender with material benefit, or that income of the offender unrelated to crime cannot reasonably account for the value of all the property of the offender. Upon these conditions being satisfied, any property of the offender identified by the Attorney General will be forfeited unless the offender demonstrates, again on a balance of probabilities, that the property is not proceeds of crime. The court, however, would be permitted to set a limit on the total amount of property forfeited as may be required by the interests of justice.
I want to comment on the particular offences that would be subject to this reverse onus set of provisions. These offences do not comprise all of the designated offences that are subject to the current proceeds of crime scheme under the Criminal Code. It is important to emphasize this. It is also important to emphasize that the current forfeiture scheme under the code will continue to exist and be available for this wider range of offences. Indeed, at the discretion of the Crown the current forfeiture scheme will also be available even for the particular offences identified in the reverse onus forfeiture scheme.
What Bill C-53 adds, however, is an additional special forfeiture power for which the Crown, at its discretion, may apply in respect of the narrower class of offences that I just mentioned. Ultimately, the new forfeiture power is targeted at organized crime and its main activities. That is why the legislation specifically identifies criminal organization offences as the basis for the reverse onus forfeiture.
These criminal organization offences are crimes that logically can support a presumption that substantial property of the offender is the proceeds of crime. A core aspect of the definition of criminal organization is that it is a group formed for the purpose of committing offences to obtain “material benefit”. There is, therefore, a logical basis founded on the definition of criminal organization itself for the underlying presumption inherent in the reversal of the onus. There is also the justification of taking special measures to address the substantial societal harm caused by organized crime.
The one other category of offences to which the reverse onus provisions will apply are the serious drug offences of trafficking, importing and exporting, and production of illegal drugs where these offences are prosecuted on indictment. There are probably no offences more closely associated with organized crime than these serious drug offences, so it was thought entirely in keeping with the purpose of this legislation to include them. There is also the justification of taking special measures against such drug offences that represent matters of recognized societal harm in their own right. These are the offences that the government puts forward in Bill C-53 as appropriately being subject to the reverse onus forfeiture which my colleague was discussing earlier.
I recognize, of course, that organized crime is involved in a wide variety of offences beyond those specifically identified in Bill C-53. It is worthwhile to point out, however, that while the definition of a criminal organization offence in the Criminal Code of course includes the special criminal organization offences set out in there, such as participation in the activities of a criminal organization, it also includes other indictable offences provided these offences were committed for the benefit of, at the direction of, or in association with a criminal organization. Therefore, the potential scope of application of the proposed new reverse measure is quite broad, although still tied to organized crime.
I now wish to address the additional conditions attached to the application of the reverse onus. Once again, these are that the court would have to be satisfied on a balance of probabilities that either the offender engaged in a pattern of criminal activity for the purpose of providing the offender with material benefit, or that income of the offender unrelated to crime cannot reasonably account for the value of all the property possessed by the offender.
These conditions have to be added to help support the presumption that extensive property of the offender is the proceeds of crime and that reverse onus forfeiture is appropriate. It should be remembered that these two conditions are alternative conditions and it is sufficient to prove one or the other. Each is to be assessed on a balance of probabilities.
Demonstration of a pattern of criminality leading to material benefit and the alternative condition that income of the offender unrelated to crime cannot reasonably account for the offender's property each have a clear link to the reversal of the onus with respect to the offender's property. The legislation has been carefully designed to include conditions which ensure that the reverse onus will apply only in appropriate circumstances.
Additional provisions that I wish to discuss are specific safeguards in the legislation to protect legitimate interests in property, including third party interests.
The current proceeds of crime legislation in the Criminal Code includes procedures to ensure that such interests can be considered by the courts. For example, prior to an order of forfeiture being made, a court is directed to require that notice be given to any person who appears to have an interest in the property subject to forfeiture. The court may then hear a claim from such a person. The court may order that the property will be returned to that person if satisfied that the person is lawfully entitled and is innocent of any complicity or collusion. Specific provisions of Bill C-53 ensure that this protection is also available in respect of the new forfeiture powers under the bill.
In addition, the current forfeiture scheme under the Criminal Code allows that any person who claims a legitimate interest in property that has already been forfeited may apply for an order declaring that his or her interest is not affected by the forfeiture. The court may then make the order under this section if it is satisfied that the applicant is innocent of any complicity or collusion in a designated offence that resulted in the forfeiture. Under Bill C-53, these orders are all specifically extended to apply in respect of the new forfeiture power.
In summary, Bill C-53 has as its main purpose the addition of an important new forfeiture power to the Criminal Code. This new power would provide, in appropriate circumstances and subject to certain logical conditions, for the forfeiture of property of an offender unless the offender can prove, on a balance of probabilities, that the property is not the proceeds of crime. Safeguards are also put in place to ensure the protection of legitimate interests in property. The bill seeks to build on current proceeds of crime schemes in the Criminal Code to more effectively address organized crime and its prime motivation of illicit economic gain.
I urge all members to extend their support to Bill C-53.
Pat Martin Winnipeg Centre, MB
Madam Speaker, I am thankful to the parliamentary secretary for his views on Bill C-53. Coming from the province of Manitoba, I wholly support this idea as we have similar legislation our province. It has been very useful. I could cite case studies of how it has been operating very well.
My question for my colleague is not about the reverse onus, about having people demonstrate that their assets are not the proceeds of crime. My question has more to do with the technical side of where that money goes if in fact assets are seized. If they are found to be the proceeds of crime and are seized by the government, in what way will the federal government be able to convert those material possessions into dollars? What is the methodology? How will the treasury benefit from the assets seized after they are found to be the proceeds of crime?
Peter Adams Peterborough, ON
Madam Speaker, before I became as we all are now, not being a lawyer engaged in this legislation, there were a number of technical things I was concerned about, such as what happens if a criminal writes a book and all of those sorts of things.
I have to say that at the moment I do not have the answer. Whether these moneys go into the general revenues directly and are simply merged in the total budget, or whether they go into the general revenues designated for a specific purpose, or whether they go directly to the police or somewhere else, I do not know.
I would undertake during the debate now to get that reply, in a few minutes, I hope, and I would read the response into the record.
Vic Toews Provencher, MB
Madam Speaker, in respect of that issue I believe that what happens is that the federal government enters into agreements with the provincial governments on a cost sharing. There is a lot of dispute as to what is the appropriate share that the province should get. I know that has been an ongoing dispute. Many times officers conducting municipal functions, for example, the RCMP, the federal police force, seize the money but are conducting municipal operations and do not get the fair share that many are saying they should be entitled to.
The member for Winnipeg Centre has pointed out a concern that needs to be addressed. I do not think we need to address it in the legislation, but certainly the agreements need to be worked out so that those who bear the cost of policing are getting their fair share of these seizure and it is not going directly to the police forces. I agree with the comments that it should not go to the police forces directly but rather to the provincial government involved or the federal government.
I also share the concern about third party interests. It is my understanding the bill does adequately protect third party interests, that notices are given to third parties who may have an interest in the property being considered for seizure, and that there is an opportunity for those third parties to make a response. I do not know if the hon. parliamentary secretary has further comment on that.
Peter Adams Peterborough, ON
Madam Speaker, first I want to thank my colleague. I think we now have the answer. As we know, my colleague had a senior position in the provincial system and as a lawyer I think understands this. The answer that I received is exactly that one: that the moneys go, undesignated, into the general revenues, but that agreements are made specifically in each province as to the use of them. I agree with my colleague. I think that is the appropriate way in which those moneys should be allocated.
With regard to the third party, I think there is provision in the bill, both before the event and after the event; I do not know the legal terms of these things. If, for example, I was involved in some company or some business and someone else was forfeiting their share of that business, I can apply beforehand. In the settlement which is made by the court, as I understand it, as long as I can demonstrate that I was not involved in a criminal activity, my share would be protected. My understanding also is that after the event, if this happens and I have not had time or I did not hear about it in time, I can apply retroactively to protect my investments in the area where the forfeiture is taking place.
I hope this is the sort of response my colleague wished for.
The Acting Speaker (Hon. Jean Augustine)
It is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Renfrew—Nipissing—Pembroke, National Defence; the hon. member for New Brunswick Southwest, Veterans Affairs.
Vic Toews Provencher, MB
Madam Speaker, it is my honour to rise today in the House to address Bill C-53 as the justice critic for the Conservative Party, the official opposition.
The key purpose of the bill is to provide a reverse onus of proof in proceeds of crime related to organized criminal activity. The provisions in the bill have long been a part of the Conservative Party platform and I hope to see the legislation passed as quickly as possible. Indeed, it is noteworthy that the bill generally speaking enjoys all-party support, something that is all too rare in the House of Commons.
I hope that some of the explanation that the parliamentary secretary gave just a moment ago in the House will assure some members of the New Democratic Party that the interest of innocent third parties are preserved. The bill does not need too much retinkering or amendments. I am concerned that the bill, which appears to be on the face of it a relatively good bill, not be held up any further.
The reverse onus provision for proceeds of crime was recommended by the subcommittee on organized crime but was not included in the government's last bill addressing organized crime, Bill C-24, which was tabled and passed in 2001.
I want to note that there are serious shortcomings in our organized crime legislation. This is an important step to address some of those shortcomings, but there are many other issues that need to be addressed.
I know that it is quite onerous now when we are prosecuting organized criminal organizations that in each specific case there has to be a reproving of the fact that the organization is a criminal organization. Quite frankly we should adopt some of the legislation from other jurisdictions and I specifically refer to the RICO laws in the United States that have been very effective in attacking organized crime. We could learn a lot from that legislation. It respects I believe due process. It respects the constitutional safeguards not only in the American constitution but in the Canadian constitution as well. We should not hesitate to adopt similar procedures where it is in the best interest of Canadian public security.
I make the comment that we do not consider this the fight against organized crime to be at an end simply because we are agreeing to what is an important amendment because in the overall picture it is still a relatively small step.
I feel compelled to point out that the Liberals did not act on the reverse onus measure until they faced significant provincial pressure from the provincial ministers of justice as well as the opposition justice critic since the beginning of this minority Parliament.
I know that certain provinces, including my home province of Manitoba, have passed similar legislation. I do not think we should hesitate in moving forward with federal legislation. The provinces did so out of desperation. They were not receiving any help from the federal government and quite frankly had to move ahead. I support what the provinces generally speaking have been doing. However, it is a much more cumbersome process that the provinces had to adopt.
I strongly believe that the level of government that is primarily responsible for the enforcement of the criminal law should also be responsible for passing appropriate legislation dealing with the proceeds of crime. We should not leave it to the provincial governments to do it under their constitutional jurisdiction under property and civil rights. It is cumbersome and not as effective. This is the right approach and we should not hesitate. I do not think there would be any province standing in the way of Parliament in terms of taking those steps.
Organized crime is a problem that reaches across nations, oceans and boundaries affecting communities everywhere. The violence, the welfare and the financial implications of organized crime are far reaching. Globalization and technological revolution has made it possible for organizations to exert enormous influence on an international scale.
Generally speaking, we are asking our police forces to face a 21st century problem with all of the technological advantages that organized crime has with essentially 19th century tools. Many of our evidentiary laws are old laws.
They are simply not updated often enough in order to keep abreast of the changes in technology, so we need to, on an ongoing basis, ensure that our police forces have not only the appropriate frontline police resources but indeed the legal resources in the form of effective laws. This is one such step in bringing our criminal law essentially out of the 19th century and into the 21st century. In that sense it is a quantum leap for Canada. Unfortunately, we have not learned from the examples which other countries have gained and therefore we are still far behind other countries in terms of addressing issues of organized crime.
The extent of collaboration within and among criminal groups has broadened greatly. The available technology has improved their ability to conduct organized crime by leaps and bounds, and therefore Canada has become a very attractive place for these types of criminals. According to Criminal Intelligence Service Canada, virtually every major criminal group in the world is active in Canada.
In 1998 the Department of the Solicitor General of Canada, now the public safety department, commissioned an independent study to assess the cost of certain activities related to organized crime. It was found that the economic costs of organized crime, I am not talking about the economic profits to organized crime, but the costs, amount to at least $5 billion a year. Frontline police officers who are struggling to maintain their fight on existing technology simply do not have the resources to compete with the new and emerging technologies to which these criminal organizations have access.
The reverse onus provision for proceeds of crime is vital for an effective war on organized criminal activity. At present, in order to obtain an order of forfeiture, the Crown must prove on a balance of probabilities that property is the proceeds of crime and that the property is connected to the crime for which the person was convicted. The Crown must prove that the accused or convicted person owns the property and that the property is the proceeds of crime.
Again, given the resources available to many criminal organizations, accountants, lawyers and the like, they have learned to distance themselves from their assets. Often criminal organizations do not use the regular types of security that other businessmen would have to use. They enforce their security in ways that legitimate business people do not and should not.
If there is no connection between the offence and the property established, the court nevertheless may order forfeiture of the property if it is satisfied beyond a reasonable doubt that the property is the proceeds of crime. That is the existing law now.
The amendments introduced in Bill C-53 provide that once an offender has been convicted of the appropriate crime, that is a criminal organization offence or certain offences under the Controlled Drug and Substances Act, the court shall order the forfeiture of property of the offender identified by the Crown unless the offender proves on a balance of probabilities that the property is not the proceeds of the crime. Once the conviction is made now, any property belonging to the accused is forfeited unless the accused establishes that the property is not the proceeds of the crime.
There have been some concerns about the constitutionality of the legislation. I think, however, it is very clear that there are no constitutional problems. The reverse onus provision does not impinge on individual liberty rights secured by the Constitution, but rather relate to property rights once he or she has already been convicted of a criminal offence.
We are not talking about double jeopardy. We are not talking about reverse onus in the establishment of an essential element to a criminal offence. This is an appropriate constitutional response of the federal government under its criminal law powers or a provincial government under its rights to regulate property and civil rights.
I am quite pleased to support the bill. I would urge my colleagues, not only here in the House but in committee, to move this bill through as quickly as possible.
Pat Martin Winnipeg Centre, MB
Madam Speaker, I am very interested in Bill C-53. In fact, it does my heart good that we are debating this bill today because I am putting myself in the mindset of police officers in recent history. One can imagine the frustration they feel when they drive by the home of somebody they know full well to be involved in some unsavoury element of organized crime and see the big boat in the driveway, the Ski-Doo and the 4 x 4, and the affluence of a person with no visible means of support who has not filed income tax for five years.
There are people like that who people involved in the criminal justice know full well are guys who are up to no good. It seems like the criminals get to thumb their nose at the police officers who are held to a much higher test in terms of the onus being on them to prove, and this is an almost impossible test, that this person had managed to acquire these luxury items by legal means.
I can just imagine the frustration that police officers must be feeling. I am glad to hear virtual unanimity across the party lines that something should be done to put the tools in the hands of the good guys, and put the burden of proof and the onus on the bad guys to clear up where they got the means to buy something like a 40-foot luxury cabin cruiser. I do not accept any arguments or any criticisms that this could in any way violate someone's constitutional rights. I would ask them to simply reveal where they got the money to buy the boat, or whatever the luxury item might be.
I ask this question of my colleague because I know he has first-hand experience in these things, having been the attorney general for the province of Manitoba for a number of years. What would he recommend we put in place as a process to ensure that the provinces and the law enforcement agencies get their fair share of the proceeds that may come from liquidating these assets and that the money does not in fact end up going into the black hole that we know is the consolidated revenue fund of the Government of Canada?
Can he recommend, even if it is not as an aspect of the legislation, some process by which we will get to use some of these proceeds for future law enforcement and that it does not go to a God knows what priority of the government of the day?
Vic Toews Provencher, MB
Madam Speaker, it comes down to bargaining power. My colleague is a union organizer and negotiator. Often in the situation when we are bargaining with a strong company, the union does not have the power that it would like to have to advance the legitimate interests of working men and women.
In the same situation, often the provinces are just not in a position to push that envelope. I have seen glaring situations where RCMP police officers, under contract to the province as their provincial police, have been involved in municipal highway traffic situations. They stop a motor vehicle under a provincial law and find a million dollars in the trunk of the car. That money is seized and given to the federal government. The federal government gets 90% of it, if not more.
It comes down to the agreement that is made. If there were some way that we in the House could actually supervise some of these agreements in a more direct fashion and not simply leave each attorney general fighting the might of the federal government, it might help. The federal government is mighty in these kinds of funding arrangements, especially at a time when the costs of policing are astronomical.
I cannot offer any specific comments right now, other than perhaps bringing the matter back to the justice committee to talk about that issue once the amendments have gone through. We might have to install some kind of a review process and hear from attorneys general as to how effective it is.
One very brief thing is that there is a bit of a loophole that criminals could avoid forfeiting their property. In the legislation, as I understand it, a court may also decline to make an order of forfeiture against the property if the court considers it in the interests of justice. Is it in the interests of justice if a lawyer, for example, is not getting paid, his criminal client has all this illegal money and the judge says that it may be in the interest of justice that the lawyer scoop all the money as opposed to the Crown?
We have to be a little clearer in terms of the discretion we are giving to the courts in this context. The money may never flow to the provinces or to the federal government if there is that kind of loophole. That is one thing we need to examine in the committee.
Réal Ménard Hochelaga, QC
Madam Speaker, it is a pleasure for me to take part in the debate on Bill C-53 to amending the Criminal Code, especially the provisions on property acquired through crime. In some ways, this is surely the most important of the criminal law bills.
We have seen a certain amount of legislative activism, of course, over the last few years in regard to the criminal law. It has not always been to the liking of defence attorneys. This is a debate in which we are always trying the find the middle ground between the powers that the Department of Public Safety and Emergency Preparedness must have and the rights of people representing the accused who are always deemed innocent.
It is true that we are tipping the legal balance a little further today because it is not very common in the criminal law to reverse the onus of proof. Before looking at things in depth, we should realize that this reversal of the onus of proof pertains only to some very specific crimes. First, these offences are related to organized crime. They are related, therefore, to criminal organizations like those described in Criminal Code sections 467 and following. They are usually related to crimes involving drug trafficking.
Still, this bill is historic. I can recall that in the early 1990s biker wars were raging in certain big cities, including Montreal.
It should also be remembered that in Quebec there was an assassination attempt in the mid-1990s on the journalist Michel Auger. We are reminded that 160 people have died, victims in some cases and organized crime members in others, in the conflict among rival groups.
In the early 1990s, I remember meeting the Minister of Justice at the time and his senior officials. It was Allan Rock, currently Canada's ambassador to the United Nations. He was a very nice person who wondered himself about the most effective way of fighting organized crime. That was relatively new, it must be said. I am not speaking of organized crime but of organized crime moving into public spaces, with car bombings and raids and murders in orderly places like cities. That was relatively new.
Of course the elders among us, or the ones with the most experience—let us not confuse the two—will remember the CIOC, the Commission of Inquiry on Organized Crime. This was headed by Justice Robert Cliche.
Its hearings were televised and I remember my parents and a lot of other people in Quebec watching them. What they got out of it was perhaps a more detailed understanding of the ramifications of organized crime in various sectors of the society of the day, including the construction industry.
In the early 1990s I met the Minister of Justice, or at least some of the senior departmental officials, as well as the mother of Daniel Desrochers. No doubt hon. members will recall that, on August 9, 1995, a car bomb on Adam St. in Hochelaga—Maisonneuve took the first innocent victim, this young boy who went to Hochelaga school in the Maisonneuve sector. This boy died because he was in the wrong place at the wrong time.
At that time, during the 1990s, senior Justice officials were convinced that organized crime could be eradicated just by using Criminal Code provisions against conspiracy. Police and investigators I met with explained to me that this was not possible because there has to be active participation for there to be a conspiracy.
I note the nod from my colleague from Abitibi—Témiscamingue, who remains a member of the legal profession. We remember the likes of Maurice “Mom” Boucher, for instance, who was the one giving the orders and is now behind bars for 25 years, with no possibility of parole. We know very well that the ones giving the orders are not the ones who commit the offence. It was clear that conspiracy provisions would not work for dismantling major organized crime rings.
I met with investigators, police officers, lawyers and criminologists who convinced me that new provisions had to be included in the Criminal Code. At the time, in the mid-1990s, that was not obvious. The example of my colleague from Marc-Aurèle-Fortin, who was the Minister of Public Safety at the time, comes to mind; he has been justice minister and he is a defence counsel as well. He had very legitimate concerns about this issue, given that the presumption of innocence is something sacred in criminal law. Without the presumption of innocence, there can obviously be abuse.
Now, we are going a little further, arguing that tools are being given to the Crown. There are counsels who might feel somewhat uncomfortable at times, but I believe that is only temporary.
On the face of the wording of the bill, it is clear that these tools provided to the Crown are designed to be used once a conviction has been pronounced. The order sought to reverse the burden of proof applies to possessions presumably obtained illegally. The conviction, however, has already been pronounced, based on all the rules of fairness and natural justice one can expect as part of a trial.
This is nevertheless a very major tool that is being provided. It is hard to understand how individuals who report very modest incomes for income tax purposes can own property worth several million. How can someone who declares an annual income of $12,000 afford a boat, three houses, two triplex buildings and a millionaire's lifestyle?
Now, tools are being provided which respect this balance. I would not want this balance to be upset. I realize that the presumption of innocence, the burden of proof and adjudicative fairness are very important rules that ensure a degree of civility in our justice system.
What will this mean in actual fact? The Crown will have to prove, beyond all reasonable doubt, that the accused is guilty of a criminal offence. We are talking about offences related to organized crime and, in essence, drug trafficking. These offences are indictable offences carrying minimum five-year sentences. Once the individual is convicted of a criminal offence, an order of forfeiture should be made against certain property, although not necessarily all of an individual's property. In its order, the crown should specify the property it wishes to seize on the grounds that it is the proceeds of crime. Here is where the reversal of onus of proof occurs. The accused will have to show how and by what means he acquired that property.
Since my time has almost expired, I want to say rapidly in closing that all parliamentarians should unanimously vote in favour of this bill, which should then, in all due diligence, be referred to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.
Tom Lukiwski Regina—Lumsden—Lake Centre, SK
Madam Speaker, I rise to allow my hon. colleague from the Bloc a few more moments to complete his thoughts so my question is rather open-ended. Could he further expand upon his comments?
Réal Ménard Hochelaga, QC
Madam Speaker, how much time do I have remaining?
The Acting Speaker (Hon. Jean Augustine)
Five minutes for questions and comments.