Mr. Speaker, it is a great pleasure as well as an honour for me to start the debate on this Bloc Québécois motion to reverse the burden of proof as regards the proceeds of crime for individuals convicted of specific offences.
For the benefit of my colleagues and those listening today, I want to clarify that the motion before the House today reads as follows:
That, in the opinion of the House, in order to better fight crime, the government should introduce a bill by May 31, 2005, to amend the Criminal Code by reversing the burden of proof as regards the proceeds of crime, requiring the accused, once found guilty of a serious offence, to demonstrate on the balance of probabilities that their assets were not obtained using the proceeds of their criminal activities.
Organized crime is one of the most serious social issues facing our society, and this is even more so given that, since 1994, there has been a bloody war in Quebec among the rival criminal motorcycle gangs. Over 160 people have died as a result of this war, including innocent bystanders who had the misfortune of getting in the way of these criminals.
There is a direct link between this motion and the deadly circumstances surrounding this motorcycle gang war in Quebec, as elsewhere in Canada. In the name of public safety, but also and above all to support police efforts to fight organized crime, substantive changes to the legal framework must be made to better equip the Crown.
Amending the Criminal Code as proposed in this Bloc Québécois motion would constitute a very big step forward and I know already that our efforts are welcome, both by police forces and crown prosecutors in general.
For a number of years, the Bloc Québécois has lobbied the federal government to put forward effective legislation to fight organized crime. During the 2000 election campaign, the Bloc Québécois continued such efforts and called for Ottawa to amend the Criminal Code to give police and crown prosecutors more effective tools with which to fight and stamp out organized crime.
The Canadian government eventually responded to some of our demands by introducing the antigang legislation, which amended the Criminal Code provisions applicable to organized crime. The Bloc believes, however, that further reform is needed to tighten the noose currently around organized crime in Quebec and Canada.
Hon. members will remember that, on October 28, I tabled in the House of Commons, with the support of the Conservative member for Provencher and the NDP member for Windsor—Tecumseh, Bill C-242, to reverse the burden of proof and require an accused, once convicted of an offence in association with a criminal organization, to demonstrate that the goods that he owns were obtained in an honest and legitimate fashion. I suggested then that we should use what is called the balance of probabilities.
The media coverage on this legislation—which, everyone will agree, is as bold as it is tough—revived the whole debate on the conviction of individuals associated with the underworld, particularly in the case of the megatrials that were held in Quebec following opération printemps 2001.
In that context, I am very pleased to see that a strong consensus is being achieved on the issue, from coast to coast. The repeated pressures exerted by the Bloc Québécois over the years have convinced several governments of the merits of this amendment to the Criminal Code.
In this regard, it is important to note that, at the recent federal-provincial-territorial meeting of justice ministers, held here in Ottawa on January 24 and 25, the justice ministers agreed on a series of measures that should be taken to improve Canada's justice system.
As regards these measures, the news release issued at the conclusion of the meeting read as follows:
Ministers discussed proposals to change the Criminal Code to create a reverse onus for the proceeds of crime regime. Offenders would have to prove on a balance of probabilities that their property is not the proceeds of crime. All ministers agreed that the ability to obtain the forfeiture of proceeds of crime is needed and the federal justice minister said he intends to move forward as quickly as possible with changes that meet charter requirements.
In addition, in an open letter sent to the Quebec major newspapers at the beginning of February, while he was still Quebec's attorney general and minister of justice, Jacques Dupuis spoke out on behalf of his counterparts and embraced the principle of Bill C-242, which I introduced last fall.
In this regard, he made a further commitment by saying that:
The current subsection 462.37(1) of the Criminal Code places on the Crown prosecutor the burden of proving that the property to be forfeited is proceeds of crime related to the offence committed. Once an accused person has been convicted, the Crown must prove that the property was illegally acquired in order to obtain its forfeiture. My colleague Attorneys General in the other provinces and territories have supported the proposal we have put forward to shift the burden of proof onto the accused after a finding of guilt beyond a reasonable doubt. We have therefore asked the Minister of Justice of Canada to amend the Criminal Code accordingly.
If the proposed amendment is enacted, an accused who is convicted of an indictable offence will be required to satisfy the court, on a balance of probabilities, that the property in respect of which the Attorney General is seeking forfeiture is not proceeds of crime related to the offence of which the accused has been convicted.
Our proposed amendment goes further than the amendment in Billin the House of C 242 recently tabled Commons in that it applies to all indictable offences, not only criminal organization offences.
Despite the expertise Québec has developed and our success in offence-related property forfeiture (since 1996, property worth a total of $32 million has been forfeited), it remains difficult to prove that a particular item of property is in fact proceeds of crime. Establishing that proof is a lengthy and painstaking process. Our proposed amendment to reverse the burden of proof will further enhance the claim that crime does not pay.
So what Jacques Dupuis was calling for, with the agreement of the Bloc Québécois, was a kind of Bill C-242 plus.
The motion we are debating today is along the same lines and has as its main objective to remind the government of its commitment to this and primarily to accelerate the process by which it plans to act. With the May 31 deadline for the government to being in a bill with such a commitment, the Bloc Québécois is stepping up the pressure on the government to do more than talk, finally.
I would also point out to my hon. colleagues that adoption of such a measure is central to the Bloc Québécois' commitments to Quebeckers, and particular focus was placed on it in the Bloc Québécois election platform. That platform became a kind of plebiscite, as can be seen by the exceptional results of the June 28, 2004 election.
I want to mention the contribution by my colleague from Saint-Hyacinthe—Bagot to the drafting of that platform. This colleague's work on the platform, and his whole battle against organized crime, deserves our recognition. His position , which we share, was reflected in the last campaign platform for which he was responsible.
This idea is certainly not a Bloc original. No Canadian political party has ever dared take it as far before, however. The motion is in large part inspired by certain international legislative precedents.
In its 40 recommendations relating to property laundering, the OECD financial action task force, generally called FATF, proposes the adoption of measures to permit property to be confiscated.
It could not make its stand on this any clearer. It says the following in connection with improvements to justice systems:
Countries should adopt measures similar to those set forth in the Vienna and Palermo Conventions, including legislative measures, to enable their competent authorities to confiscate property laundered, proceeds from money laundering or predicate offences, instrumentalities used in or intended for use in the commission of these offences, instrumentalities used in or intended for use in the commission of these offences, or property of corresponding value, without prejudicing the rights of bona fide third parties.
The quote continues:
Such measures should include the authority to: (a) identify, trace and evaluate property which is subject to confiscation; (b) carry out provisional measures, such as freeing and seizing, to prevent any dealing, transfer or disposal of such property; (c) take steps that will prevent or void actions that prejudice that State's ability to recover property that is subject to confiscation; and (d) take any appropriate investigative measures.
FATF goes still further by suggesting that:
Countries may consider adopting measures that allow such proceeds or instrumentalities to be confiscated without requiring a criminal conviction, or which require an offender to demonstrate the lawful origin of the property alleged to be liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law.
Since it is important to put the international legal situation clearly on the table, FATF recommendation 27 states clearly that:
Countries should consider taking measures, including legislative ones, at the national level, to allow their competent authorities investigating money laundering cases to postpone or waive the arrest of suspected persons and/or the seizure of the money for the purpose of identifying persons involved in such activities or for evidence gathering. Without such measures the use of procedures such as controlled deliveries and undercover operations are precluded.
Simply put, the financial action task force suggests strongly that countries adopt measures that would create an obligation for the presumed perpetrator of an organized crime offence to prove the legitimate origin of goods subject to confiscation, insofar as such an obligation is consistent with their domestic laws.
A number of countries, including Australia, Austria, France, Italy, New Zealand, Switzerland and Great Britain have already passed legislation and made statutory provision that the burden of proof may be reversed when it concerns the proceeds of crime.
In order to facilitate proof that certain goods are indeed the proceeds of illegal activities, reversing the burden of proof must therefore be considered, as is currently the case in many countries. Thus, once someone's criminal activities are proven beyond a reasonable doubt, the offender must explain the legitimate source of his property to the court.
Simply put, members of a criminal organization or any other offender would have to justify their lifestyle and explain how they acquired so many luxury goods, totally legitimately. I would be willing to bet that the tax authorities would also be grateful to Parliament for the opportunity to fight the scourges of tax evasion and money laundering more effectively.
Certainly, members will agree that this is an audacious legislative step and some will certainly point out—and loudly so—that this proposal would be contrary to the spirit and the letter of the Canadian Charter of Rights and Freedoms.
But we firmly believe that this is not true. We already see at least two key elements in our Criminal Code based on the same reasoning. One of them is section 515(6) and the other is 351(1), which says:
Every one who, without lawful excuse, the proof of which lies on him, has in his possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for any such purpose, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
With respect to the offence referred to in the latter section, it is interesting to note, first, that the burden of proof is reversed even before the offender is convicted, which is clearly not what we are proposing, and second, that this reversal of the burden of proof was declared legal by the Supreme Court of Canada in 1988, in the case of R. v. Holmes [1988] 1 S.C.R. 914. In this case, the court ruled that this presumption does not violate the presumption of innocence under the Canadian Charter of Rights and Freedoms.
The reversal of the burden of proof following conviction, as proposed in this motion and in Bill C-242, will no doubt be considered constitutionally valid.
Given the many negative effects of organized crime, both in its social and economic aspects, there is ample justification for strengthening the legislation to fight crime. Economically, organized crime generates huge revenues, which often need to be reinvested in the legitimate world, but without making a positive contribution to it.
The resulting tax evasion deprives governments from considerable revenues, and gangsters refine every day their techniques to avoid having their assets reviewed judicially. Very simply, it is becoming particularly frustrating for ordinary taxpayers to see notorious criminals display ostentatiously and condescendingly the proceeds of their illegal activities.
How many times have we heard comments from citizens disgusted with the administration of justice when they see individuals with a plainly criminal past or present get convicted of a crime and then resume their jet-set lifestyles as if nothing had happened, because they know full well that these people have not earned an honest living for a single day in their life?
As lawmakers, we have to act to restore the public's confidence in its justice system. It has become imperative that criminal organizations be sent a clear signal that the days are over when they could shamelessly make a fast buck without facing punishment. From now on, criminals will have to face the consequences of their actions and, in that sense, they will no longer be able to benefit from their criminal and illegal activities.
Let us not be fooled. There is nothing wrong with calling for the seizure of goods constituting the proceeds of crime. It is common sense. Period.
By amending the Criminal Code to reverse the burden of proof as regards the acquisition of luxury items by an individual found guilty of gangsterism, we are giving police and the Crown another means to eradicate this problem. An individual found guilty and sentenced accordingly will still, at the end of the sentence, have to demonstrate that their assets were acquired using legitimate means.
It will become particularly difficult for a criminal to show that his luxurious home, his chalet in the north, his condo in Florida, his shiny motorcycle, his sports cars, and his entire lifestyle correspond to declared income more often than not so low it hovers around the poverty line.
Such a legal initiative could also complicate the widespread practice by criminals of using front men. We know that individuals register their assets in the name of their spouse, parents or friends in order to avoid having major financial assets in their own name that could be confiscated by the government. The bill to be tabled must take into account this particular reality whereby these front men are often forced to obey the criminals.
In conclusion, the Bloc Québécois initiative is highly courageous and expresses a true political will to curb organized crime and a deep social consideration to reiterate the adage crime does not pay.
In light of the megatrials held in Quebec over the past few years, it is high time to take concrete action to deal a fatal blow to criminal organizations.
In our opinion, this is a matter of common sense.
