An Act to Amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another Act

This bill was last introduced in the 38th Parliament, 1st Session, which ended in November 2005.

Sponsor

Irwin Cotler  Liberal

Status

This bill has received Royal Assent and is now law.

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code, and makes consequential amendments to another Act, to provide a reverse onus of proof in proceeds of crime applications involving offenders who have been convicted of a criminal organization offence or certain offences under the Controlled Drugs and Substances Act. The enactment provides that a court shall make an order of forfeiture against any property of an offender that is identified in an application if the court is satisfied that the offender has engaged in a pattern of criminal activity or has an income unrelated to crime that cannot reasonably account for all of the offender’s property. A court may not, however, make an order of forfeiture against a property that the offender has shown, on a balance of probabilities, not to be proceeds of crime. A court may also decline to make an order of forfeiture against a property if the court considers it in the interests of justice.

The enactment also amends the Criminal Code to clarify the authority of the Attorney General of Canada in regards to proceeds of crime and to clarify the definition “designated offence” in regards to offences that may be prosecuted by indictment or on summary conviction. It also amends a provision of the Criminal Code to ensure the equivalency of the English and French versions.

The enactment also amends the Controlled Drugs and Substances Act to clarify the authority of a justice under that Act to issue warrants in respect of investigations of drug-related money laundering and the possession of property obtained by drug-related crime.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

February 6th, 2007 / 10:05 a.m.
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Bloc

Réal Ménard Bloc Hochelaga, QC

I'm not finished. There are no time limits during clause-by-clause proceedings. When I'm done, I'll let you know, Mr. Chairman.

Not one of the researchers who testified was able to convince us that minimum mandatory penalties had any beneficial effects. When you ask us to vote on a bill, it's our responsibility as parliamentarians to have a good grasp of the issue. It makes no difference to me to know the Conservatives campaigned on this issue. If that's their only argument, then I would vote against the bill. Yours is a minority government, which means the majority of Canadians did not entrust you with a mandate to govern the country.

Political parties propose sound measures, and some that are less so. You were elected and we were elected, and we need to respect that. Again, Mr. Chairman, we need to put an end to this demagogy, to this contention that some parliamentarians are less concerned than others about public safety.

What's important to me—and I'm speaking more directly to my friend Mr. Petit—is that police officers be given more substantial means with which to conduct investigations. Mr. Petit rightly pointed out to us that there are 38 biker gangs in Canada, not to mention 300 gangs with 11,000 members.

Officials from the Organized Crime Prevention Bureau gave testimony before our committee and announced that they had successfully shut down the Hells Angels. Half of the Hells Angels in Quebec are behind bars, but not because of the minimum penalty provisions in the Criminal Code. They are behind bars because of extended electronic surveillance warrants and because more probing investigations were conducted. These are areas on which I want to focus. If the government wants to bring in draft legislation which would help police officers improve their investigative methods, then we will move quickly to pass these bills.

I asked that we look into the reasons why Bill C-53, with its reverse onus of proof provisions with respect to proceeds of crime, has not yet been applied. Instead of voting on minimum penalties that we know will not have a deterrent effect, in my estimation, it's far more important for the committee to understand the rationale for the reverse onus of proof provisions with respect to proceeds of crime involving some of the most hardened offenders. Yet the RCMP has not yet been able to present a test case.

Mr. Chairman, we need to be courteous and respectful of one another. We are all concerned about people's safety. No one here has cornered the market on wisdom.

February 1st, 2007 / 10:30 a.m.
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Deputy Commissioner, Federal Services and Central Region, Royal Canadian Mounted Police

D/Commr Pierre-Yves Bourduas

Your question is a relevant one. The act entered into force in November 2005. Since then, the Department of Justice has had to administer the act, under which the burden of proof is reversed, but not enough. It doesn't go far enough. The Crown nevertheless has to prove criminal activity, as well as the connection between the material acquisitions and the criminal activity, before the reversal of the burden of proof applies.

At the time debate on the bill was taking place, we asked that an individual's involvement in criminal activities be proven. Once the proof is made, we rely on the principle that no one may benefit from crime. The reversal of the burden of proof is applied, for example, where an individual has to explain to the court how, with an annual income of $10,000, he was able to own three expensive residences. It's in that sense that the act doesn't go far enough, and that's why the Department of Justice laid no information before the courts under this act to date.

We talked about — and Sergeant Butler mentioned this as well — the increasingly frequent use of the services of the Canada Revenue Agency. Ten investigators from that agency worked on the last case, Project Colisée, and I can tell you one thing: if you want to discourage organized crime people and let them know clearly that Canada is not a good place to do business, seize their assets. These people get involved in organized crime above all to acquire assets. If tough laws are applied and these assets are seized, the message is clear.

As regards the reversal of the burden of proof, the Department of Justice is waiting for an airtight casein order to establish well-settled case law. Then it will be possible to build around this act. Our investigators are trying to provide the Justice Department attorneys with the necessary evidence, precisely in order to begin a prosecution under Bill C-53. Unfortunately, that has not yet occurred, madam.

February 1st, 2007 / 10:30 a.m.
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Bloc

Carole Freeman Bloc Châteauguay—Saint-Constant, QC

Good morning.

Thank you for the quality of your presentations.

A number of questions that I would have liked to ask have already been asked. I'm nevertheless going to put two to Mr. Bourduas.

Earlier my colleague talked about the reversal of the burden of proof, under Bill C-53, in the case of property acquired by gangs associated with organized crime. Could you tell us why you haven't made more use of that provision?

February 1st, 2007 / 10:10 a.m.
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Bloc

Réal Ménard Bloc Hochelaga, QC

You're not using Bill C-53?

Don't you use Bill C-53? We voted on this bill, and all of the parties agreed. Don't you use that?

November 22nd, 2006 / 3:50 p.m.
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Richard Rosenberg President, B.C. Freedom of Information and Privacy Association (FIPA)

Thank you for the invitation.

I represent two organizations here, actually, the B.C. Freedom of Information and Privacy Association and the B.C. Civil Liberties Association.

On February 9, 1999, I appeared before the Standing Committee on Industry to present my views on behalf of Electronic Frontier Canada on Bill C-54, PIPEDA.

We supported the bill in principle. Now, on behalf of BC FIPA and BCCLA, I wish to renew our support for privacy protection in Canada by means of PIPEDA. However, there are a number of issues that must be addressed in order to ensure that the privacy of Canadians continues to be protected by this important piece of federal legislation.

In this submission, I will address a number of issues related to both the legislation itself and the operation of the Office of the Privacy Commissioner.

It's important to emphasize that privacy rights are increasingly under attack, and a necessary bulwark in defence of these rights is at the very least adequate legislation supported by a vigorous agency to defend privacy rights and to draw attention to current and anticipated problems.

The most important recommendation I will make in these notes is that the current ombudsman model for conflict regulation employed by the OPC be replaced, providing the minister with order-making powers.

I draw your attention to a story that appeared early in November in the newspapers, in which the British Broadcasting Corporation, the BBC, reported that Richard Thomas, the information commissioner of Britain, had referred to Britain as “waking up to a surveillance society that is all around us”.

Some of its characteristics are given as follows: by 2016, shoppers could be scanned as they enter stores; schools could bring in cards allowing parents to monitor what their children eat; and jobs might be refused to applicants who were seen as a health risk.

The report referred to above is a report on the surveillance society, and I take this as a very serious report. Britain, of course, has been described frequently as one of the most surveillant societies in existence.

To set the tone of some of the remarks that follow, let me turn to some comments I made a little more than six years ago, about the time PIPEDA was approved. I gave some examples of privacy invasions. I argued that one of the reasons for having a law in Canada was that it was necessary that both companies and government be responsible in their privacy activities, and that there be a possibility for questioning the privacy activities, and that the legislation could and should provide this.

Let me describe some of the concerns I have, and I think that will be the focus of my remarks. I have nine concerns, the first of which I'm calling publicizing complaints.

For the most part, the Office of the Privacy Commissioner, the OPC, has decided not to reveal the names of complainants, nor the organizations and companies against which complaints have been launched. It appears that under the current regimen there is little cost to companies that do not resolve their privacy issues; not properly implementing a required privacy regimen is just a small cost of doing business. Public attention would be a much more effective means to achieve compliance.

Second, a much more effective education function is required. The OPC could serve a more effective role than it has up to now; namely, to bring the office and its role under PIPEDA to the attention of the Canadian public. In my classes and talks I have rarely found anyone who knows about Canada's privacy law, his or her rights under the law, or the existence of the OPC, the current Privacy Commissioner, or the activities of the office.

A survey commissioned by the Office of the Privacy Commissioner in March of this year showed that something like 8% of Canadians had heard of PIPEDA. Clearly, if you're not aware of laws protecting you, it's going to be hard to take advantage of the protection they provide.

My third concern is the response of companies to breaches of their security. What, if anything, should companies be required to do when their security barriers are breached, with a resulting release of personal information? Such events have become fairly frequent, and most of the attention has been directed towards companies whose primary activity is the collection, compilation, and marketing of personal information.

When PIPEDA came into effect, the term “identity theft” probably was little known. Now ID theft is well known as one of the major crimes associated with Internet technology. In the body of the submission, I include a table showing the numbers of breaches that have occurred in the U.S. in the last couple of years.

The fourth point is on the transborder data flows of personal information of Canadians. The OPC has brought this issue to the attention of the Canadian public, especially with regard to the possible access to the personal information of Canadians held in the U.S. by the FBI under the U.S.A. Patriot Act. In 2004 this issue arose in British Columbia because the government had outsourced medical records to a subsidiary of the Maximus corporation, a U.S. company. It took B.C. Privacy Commissioner David Loukidelis's holding of hearings to find and determine what threats might occur because of this activity. Very briefly stated, the B.C. government introduced and passed legislation in response, which had some of the following requirements: no remote access to data from outside Canada; special restrictions on data access; and requirements for supervision of U.S. employees. I have more listed here. What's important is that the federal government has to deal with these possibilities as well.

Number five, on workplace privacy issues, PIPEDA does not cover information collected by employers about non-federally regulated private sector employees. Workers in three provinces--B.C., Alberta, and Quebec--have protection in the workplace, but basically there is a real lack of it. I should add, for full disclosure, that a researcher and I did a six-month research project for the Office of the Privacy Commissioner on workplace privacy, and we submitted a report to that office expressing our concern about the future of the rights of workers in Canada.

Number six is the development of the electronic medical record, the EMR, and its privacy implications. We recall that when PIPEDA was enacted, the application of the law to the protection of medical records was postponed for one year in order to provide for additional consultation to deal with any special issues associated with such records. I take medical information to be the most sensitive of all personal information and deserving of the highest degree of protection. We're now in the process, across the country, of instituting information systems that will contain, in part, the medical record of every patient who has been involved in the medical system.

Some serious questions arise as to who has access to this medical record and to what degree patients have a chance to say yes or no. One very simplistic model has most of the information about drugs and so on, or about visits, which are not of the most sensitive nature, being available in general without any special permission, but that particular information that's most sensitive might be considered to be in a special lock box, so that only when a patient gives direct permission can that information be released. You ask to whom it would be released. That would be to other doctors, to administrators to make sure that the health process is being conducted efficiently, and to researchers who would like to have access to medical records.

Point seven is on the challenges of emerging privacy-threatening technologies. The law, generally speaking, always seems to be behind new technologies that appear and have good uses, and all of a sudden they start applying to areas that hadn't been thought of. Obviously the law will still apply, but to try to figure out what's going on is the difficulty. I bring your attention to RFID technology, which is being used in U.S. passports. It's part of inventory control, and it also has possibilities for more sinister use. I don't think that's too strong a word.

Let me read you this story, which appeared earlier this year:

A Cincinnati video surveillance company CityWatcher.com now requires employees to use Verichip human implantable microchips to enter a secure data centre. Until now, the employees entered the data centre with a VeriChip housed in a heart-shaped plastic casing that hangs from their keychain. The VeriChip is a glass encapsulated RFID tag that is injected into the triceps area of the arm to uniquely identify individuals. The tag can be read by radio waves from a few inches away.

If it had slightly higher power it could be read from several metres away.

How do you feel about this? How should a privacy commissioner act in response to these kinds of activities? There is now talk about medical records going on chips to be implanted. Then you can't forget things, and you'll have this medical record. This is just one of the kinds of technologies to which we're really going to have to pay attention.

My eighth point is on current views of some aspects of consent. This is a very long area of great concern. Of a document released by the Privacy Commissioner to stimulate discussion, half of it had to do with various questions of access. Who has rights? Is there blanket access? In some of this, there was some concern about access now taking place under various acts of Parliament meant to deal with terrorism, and the requirements to gain information about individuals without informing them it's being taken. The general question is, how much information can you take from people without getting their assent or at least informing them you're taking it? I use the general term “access” to cover many of these things, but there isn't time to go into them in detail.

Let me turn very quickly to the last of my comments, which is where I began. The Office of the Privacy Commissioner of Canada is committed to the ombudsman model of mediation. Complaints are heard, meetings are held, and non-binding recommendations are issued, with the names of all parties almost always concealed. If they are dissatisfied, a complainant can bring the case to the Federal Court at his or her own expense.

Has this model been effective? There's some disagreement in public responses to this question. Certainly the OPC seems to be committed to its current mode of operation. It is significant that in the three other provinces in Canada with their own versions of PIPEDA, British Columbia, Alberta, and Quebec—and of course the Quebec model came in several years earlier—the model used involves order-making powers. That is, complaints are heard, decisions with legal force are made public, and parties are named. So the full force of public scrutiny is serving as a constant light shining on the privacy practices of companies and organizations, for whom negative publicity is not in their self-interest. That clearly is the single most important recommendation I'm making in this submission.

Let me thank you for the opportunity to appear before you on this very important matter.

Business of the HouseOral Questions

November 21st, 2005 / 3:05 p.m.
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The Speaker

I am sure the House is glad to hear the news, but I do not think it is a point of order.

(Bill C-53. On the Order: Government Orders:)

November 16, 2005--The Minister of Justice--Consideration at report stage and second reading of Bill C-53, An Act to Amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another Act, as reported by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, without amendment.

(Bill concurred in at report stage, read a third time and passed)

(Bill C-54. On the Order: Government Orders:)

November 3, 2005--Resuming consideration of the motion of the Minister of Indian Affairs and Northern Development that Bill C-54, An Act to provide first nations with the option of managing and regulating oil and gas exploration and exploitation and of receiving moneys otherwise held for them by Canada, be read the third time and passed.

(Bill read the third time and passed)

(Bill C-55. On the Order: Government Orders:)

October 5, 2005--Minister of Industry--An Act to establish the Wage Earner Protection Program Act, to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act and to make consequential amendments to other Acts.

(Bill concurred in at report stage, read the third time and passed)

(Bill C-66. On the Order: Government Orders:)

November 1, 2005--Resuming consideration of the motion of the Minister of Finance that Bill C-66, An Act to authorize payments to provide assistance in relation to energy costs, housing energy consumption and public transit infrastructure, and to make consequential amendments to certain Acts, be now read a second time and referred to the Standing Committee on Finance.

(Bill read a second time, referred to and reported from committee without amendment, concurred in at report stage, read the third time and passed)

Business of the HouseOral Questions

November 21st, 2005 / 3 p.m.
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Hamilton East—Stoney Creek Ontario

Liberal

Tony Valeri LiberalLeader of the Government in the House of Commons

Mr. Speaker, I think you would find unanimous consent for the following. I move:

That Bill C-53 be deemed to have been concurred in at report stage and read a third time and passed on division;

That Bill C-54 be deemed to have been read a third time and passed on division;

That Bill C-55 be deemed to have been reported from the committee with the following amendments presented by the government:

That Bill C-55, in clause 131, be amended by replacing line 41 on page 127 with the following:

as provided in this section or under the laws of the

That Bill C-55, in clause 131, be amended by adding after line 11 on page 129 the following:

(8) For greater certainty, any collective agreement that the company and the bargaining agent have not agreed to revise remains in force, and the court shall not alter its terms.

and that the said bill be deemed to have been concurred in at report stage and read a third time and passed on division;

That Bill C-66 be deemed to have been read a second time, referred to and reported from committee without amendment, concurred in at report stage and read a third time and passed on division.

Business of the HouseOral Questions

November 17th, 2005 / 3:05 p.m.
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Hamilton East—Stoney Creek Ontario

Liberal

Tony Valeri LiberalLeader of the Government in the House of Commons

Mr. Speaker, we will continue this afternoon with the opposition motion.

On Tuesday, November 22 and Thursday, November 24, we will have allotted days. The opposition House leaders are in fact considering a special House order to expedite Bill C-53, Bill C-54, Bill C-55 and Bill C-66 through all stages with a recorded vote at third reading. I hope we can come to an agreement on that special House order and proceed in that fashion.

If we cannot agree on that special order, then tomorrow we will begin with reference before second reading of Bill C-71, the first nations commercial bill; report stage of Bill S-37, respecting the Hague convention; second reading of Bill S-36, the rough diamonds bill; and reference before second reading of Bill C-72, the bill amending the DNA legislation. We will continue with this business next week, adding the report stage of Bill C-57, the financial governance bill, and other unfinished items.

With respect to the comment about the Chamber of Commerce, it is very clear, and I said this earlier, that Bill C-66 and the ways and means motion are in fact confidence motions. Although I am not sure I should do this, I am taking at the hon. member's word the public statements that in fact those members do support Bill C-66 and the ways and means motion with respect to taxes. Given his comment, I guess I should reconsider and speak to him once again since his party has flip-flopped on a number of occasions.

With respect to prorogation, I have to say that this rumour created by the Conservative Party was merely to keep the NDP in line with its confidence motion that it will put forward in the coming weeks.

Committees of the HouseRoutine Proceedings

November 16th, 2005 / 3:15 p.m.
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Liberal

John Maloney Liberal Welland, ON

Mr. Speaker, I have the honour to present, in both official languages, the 17th report of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

In accordance with its order of reference of Wednesday, September 28 your committee has considered Bill C-53, an act to amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another act and agreed on Tuesday, November 15 to report it without amendment.

Criminal CodeGovernment Orders

October 21st, 2005 / 12:40 p.m.
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Liberal

Borys Wrzesnewskyj Liberal Etobicoke Centre, ON

Mr. Speaker, I wish to express my support for Bill C-64, a government bill that would provide a new offence for altering, removing or obliterating a vehicle identification number on a motor vehicle. This bill is important as it addresses a gap that currently exists in the Criminal Code.

At present, there are offences in the Criminal Code that can and are being used to address the problem of automobile theft in Canada. These include, notably, the specific offences of theft and possession of stolen property. There is also the offence of taking a motor vehicle without consent, sometimes referred to as the joyriding offence. Also relevant is the offence of fleeing in a motor vehicle to evade a peace officer, an offence that is frequently engaged in by persons who have stolen cars.

However, while these offences can be and are being used, they do not fully address the activity that is proposed to be directly criminalized in Bill C-64. Currently, the activity of altering a vehicle identification number is most closely associated with the offence of possession of property obtained by crime, in section 354 of the Criminal Code.

When people are found to be in possession of stolen vehicles, it is not at all uncommon to find that those vehicles have had their vehicle identification numbers tampered with. Indeed, section 354 already includes a provision with respect to vehicle identification numbers. In particular, section 354 includes a provision stating that evidence that a person is in possession of a motor vehicle which has had its vehicle identification number wholly or partially removed or obliterated is considered to be evidence that the vehicle was obtained by an offence.

Why then is it worthwhile to also provide for the offence proposed under Bill C-64? The answer is that the proposed new offence does not address possession itself, which is already criminalized, but the actual act of tampering with the vehicle identification number.

A further understanding for the rationale underlying the proposed new offence can be found in part in the very placement of the proposed new offence in the Criminal Code. The offence would be added as new section 377.1. It would not appear adjacent to the possession offence at section 354 but rather adjacent to provisions such as the illegal damaging of documents and offences in relation to registers of information. These offences are designed to protect the integrity of certain important documents and registries of information in Canada.

The vehicle identification number system is itself an important record of information. Each vehicle is given a unique number to confirm its identity and origin. This number, properly remaining in place, plays a vital role in respect of detecting and retrieving a stolen vehicle after a theft. In addition, it can also be used to track recalls, registrations, warranty claims and insurance coverage. It has been referred to as the automotive equivalent of human DNA.

The government has a clear interest in protecting the integrity of this system. Therefore, it is proposing the offence under Bill C-64 which would address the altering, removing or obliteration of a vehicle identification number on a motor vehicle without lawful excuse and under circumstances that give rise to a reasonable inference that the person did so to conceal the identity of the motor vehicle.

This proposed new offence would clearly and directly recognize that tampering with a vehicle identification number for this purpose is wrong. The offence would recognize the act as a key and central aspect of a chain of activities involved in the theft of a motor vehicle and the reselling of vehicles or their parts, activities that are frequently engaged in by well organized crime rings.

This chain of activities, that also includes the transportation of stolen vehicles or their parts to foreign countries for resale, generates very considerable profit for organized crime in this country and abroad. It also deprives Canadians of their motor vehicles, which are, of course, extremely significant physical possessions, in monetary and practical terms, for individuals and families.

While insurance can provide compensation for this theft, the amount of theft contributes substantially to insurance costs that are a burden to society at large. The government has a clear and direct interest in addressing this chain of activities and, therefore, indirectly criminalizing one of the central acts that facilitates it.

The additional proposed offence may perhaps be seen as a subtle addition to the already existing offences in the Criminal Code, such as theft and possession of property obtained by crime, but it is an important and justified one for the reasons that I have outlined.

I observe as well that the National Committee to Reduce Auto Theft and the Canadian Association of Chiefs of Police have called upon the government to pass a distinctive offence of tampering with a vehicle identification number.

It is important to note as well that the creation of a distinct offence of this nature would more clearly help to indicate a perpetrator's potential involvement as part of an organized vehicle theft ring. In this regard, the fact of charges and prosecution under the proposed new offence would be of value to police and the Crown prosecutors in subsequent investigations and prosecutions.

It is also important to observe in this regard that the proposed new offence, with its maximum punishment of five years imprisonment, can qualify as a criminal organization offence under the Criminal Code. Where this is demonstrated, additional criminal law provisions can come into play, including the possibility of an additional conviction for one of the core criminal organization offences found in the Criminal Code, such as participation in the activities of a criminal organization, the possibility of consecutive sentencing for offences arising out of the same transaction, and a deeming of an aggravating factor on sentencing and reduced parole eligibility.

I recognize that questions have been raised as to whether appropriately severe sentences would be available for the proposed new offence where the offence has been committed in connection with organized crime. It should be underlined that this would be available by virtue of these additional criminal organization provisions of the Criminal Code that are designed for this very purpose. I would also underline that another piece of legislation currently before this House, Bill C-53, would provide for aggressive additional proceeds of crime measures in respect of criminal organization offences.

Therefore, these aggressive new proceeds of crime measures, if passed by Parliament, would also be available for the proposed new vehicle identification number tampering offence where it is demonstrated that this tampering was done for a criminal organization.

It must be recognized that not every person who alters, moves or obliterates a vehicle identification number necessarily does so in a criminal context. There may be innocent, lawful explanations for such activity. In recognition of this, the offence criminalizes the act of tampering with the vehicle identification number only where circumstances give rise to a reasonable inference that the person did so for the purpose of concealing the identity of the vehicle. Further, the provision would recognize the possibility of lawful excuse. These are appropriate safeguards in respect of the offence.

I recognize that questions have been asked as to why it was advisable to add the words “under circumstances that give rise to a reasonable inference that the person did so to conceal the identity of the motor vehicle”, if the proposed provision also makes reference to the possibility of lawful excuse. The reason is that in certain cases, like legitimate wrecking of an automobile, VINs are regularly obliterated.

In view of these regular circumstances, it is appropriate to more clearly identify a specific wrongful purpose in the definition of the offence itself. The defence of lawful excuse, as appropriate, would be left for circumstances where persons engaged in the act with the apparent wrongful purpose but nevertheless had an excuse for doing so.

It must also be acknowledged that a private member's bill, Bill C-287, introduced by the late Chuck Cadman, provided a critical part of the inspiration for the current government bill. It contains somewhat different language with respect to the lawful excuse element. In particular, Mr. Cadman's bill proposed including the words “the proof of which lies on the person” in the reference to lawful excuse. These additional words are now part of the government bill.

The inclusion of such words would put a persuasive burden on an accused to prove a defence. This is contrary to general traditions under Canadian criminal law under which the persuasive burden remains on the Crown with respect to guilt or innocence.

This is also, in particular, a concern under the Charter of Rights and Freedoms. In general, whenever an accused is required to disprove, on a balance of probabilities, any factor affecting the verdict of guilt or innocence, charter concerns can arise with respect to the presumption of innocence.

It is not the general practice under the Criminal Code for reverse burdens to be put on an accused with respect to guilt or innocence itself. Convictions are regularly obtained under existing provisions of the code with the full persuasive burden remaining on the Crown.

This is a normal part of our legal tradition in Canada. The government had no intention of leaving the proposed new measure open to a charter doubt. A reverse burden in this case was considered by the government not to serve any necessary purpose. Defence can be effective without it and so it was not included in the government bill.

This bill is an important addition to the criminal law tool kit. It will fill the gap that currently exists in the Criminal Code of Canada. It will address an activity that is part of the cycle of auto theft for profit, frequently engaged in by organized crime. It provides for an appropriate sentence of a maximum of 5 years' imprisonment for the offence itself. Further, in conjunction with existing and additional proposed measures with respect to criminal organization offences, it allows for the imposition of serious additional consequences where a link to organized crime is shown.

At the same time, the drafting of the offence provides for appropriate safeguards so as to accurately describe the criminal nature of the activity captured and so as not to impose a reverse burden on an accused with respect to guilt or innocence that could affect the charter viability of this particular offence.

The government is confident that this will be an effective and justifiable new provision of the Criminal Code. I call upon members of the House to support it.

Criminal CodeGovernment Orders

October 17th, 2005 / 4:55 p.m.
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Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Speaker, I thank my hon. colleague for his very interesting question. It may not be a cure-all, but it is a good part of the solution. Bill C-49 is a good step in the right direction. But we must also give quick passage to Bill C-53, providing for the reversal of onus. This bill will be debated in this House very shortly.

If we want to fight organized crime, this bill will enable us to go after those who traffic white slaves or workers, or those currently involved in modern day slavery, as I said earlier.

This kind of slavery is a lucrative business, the proceeds of which are often used to buy big mansions, snowmobiles and what not. When the time comes to convict the offenders, we will need the last piece of the puzzle, namely Bill C-53, to reverse the onus of proof. It will require offenders who have been convicted to prove that the money is not the proceeds of the crime they committed, more specifically trafficking in persons.

I hasten to conclude by answering the second question. Indeed, police protection could be provided to witnesses. What is commonly known as witness protection, more specifically in connection with organized crime, will be available.

Criminal CodeGovernment Orders

September 28th, 2005 / 5:05 p.m.
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Conservative

Russ Hiebert Conservative South Surrey—White Rock—Cloverdale, BC

Madam Speaker, it gives me great pleasure to rise today and address Bill C-53, an act to amend the Criminal Code, proceeds of crime, and the Controlled Drugs and Substances Act.

Let me begin by congratulating the Minister of Justice on this small but important step forward in the effort to reform our failing criminal justice system. Placing the reverse onus on the criminal to prove that his seized assets were not obtained through criminal activity is long overdue. As members of the House are well aware, the provisions contained in the bill are a long-standing plank in our Conservative Party platform.

A cynic might suggest that the only reason the bill is moving forward under the Liberals is because of the very precarious situation in which the government finds itself. It needs to fulfill a legislative calendar with legislation that is unlikely to result in its defeat. However, I prefer to believe that the Minister of Justice is listening to the common sense policies that our policy is promoting and is simply doing what is right.

The bottom line is Parliament needs to send a message that crime does not pay.

Unfortunately, our criminal justice system is in such a shambles right now after 12 years of Liberal rule, that many people are getting exactly the opposite message. I cannot help but be reminded of the case of Paul Coffin who was recently convicted for defrauding this very government of $1.5 million. While he repaid much of the money, he received no jail time and kept about $500,000. The message in that case for many Canadians is that crime does pay.

Nevertheless, Bill C-53 would ensure that those who are engaged in serious criminal enterprise, especially the illegal drug trade, would never profit from their crimes. Currently, those involved in this illicit trade in my part of Canada clearly see their crime as a profitable enterprise even when caught and convicted.

Apart from the potential stigma of a criminal conviction, those who run the marijuana grow houses in B.C. really do make a good profit. Even upon conviction there is rarely any jail time and the fines are a fraction of the income received from this illegal activity. They see the fines as simply the cost of doing business. My hope is that Bill C-53 is a first small step in a movement to suppress the grow houses, the smuggling of marijuana and cocaine over our borders and related violence that accompanies the drug trade.

With that in mind, I would like to focus on a couple of aspects of the bill that the minister and the justice committee may want to examine in greater detail as Bill C-53 moves through Parliament.

First is the 10 year limitation on seeking forfeiture. Currently clause 6.1 of the bill says that the court may impose forfeiture only if it is convinced that:

within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced, the offender engaged in a pattern of criminal activity for the purpose of directly or indirectly receiving a material benefit, including a financial benefit;

I believe we may want to reconsider limiting forfeiture in this way. It is important to remember that the individuals involved with most crime families and criminal organizations have been involved in criminal activity their whole lives. Yet, according to the bill, if such a criminal were to be prosecuted for organized crimes that took place more than 10 years before being charged, they apparently would be legally entitled to keep the proceeds of their crimes. Admittedly, such circumstances would be uncommon, yet I do not believe we would want to allow a free pass to such criminals.

Consider the case of a mobster who has lived his whole life off the avails of crime, who is finally ratted out by an informant for murders he committed earlier in his criminal career, yet there is no evidence of criminal activity for the past decade. The police finally have the evidence they need to put the don behind bars. However, even with the conviction and jail sentence, the mobster and his family keep the ill-gotten millions he amassed over his criminal career.

The second area the minister and the committee might want to examine further is the sheltering of ill-gotten gains in someone else's name. This problem was brought to my attention recently through round table meetings I have been holding across Canada as part of our party's task force on safe streets and healthy communities.

The leader of the official opposition asked me and Jim Flaherty, a former attorney general of Ontario and Conservative candidate, to head up this task force as we seek solutions to the problem of violent, drug related crime in Canadian society, the same crimes that Bill C-53 helps to address in part.

Police officers have related to me their frustration at attempting seizure of criminally derived assets from a spouse or a family member who are given title to a car, house or other property. Yes, the bill allows for fines in lieu of seizure where assets are inextricably comingled or found to be beyond the direct reach of authorities. However, I suspect that this obvious loophole for sheltering criminal assets could be tightened significantly.

The third area the minister and the justice committee may want to consider is the sheltering of assets overseas by such criminals. Again, the bill allows for fines in lieu of seizure where assets appear to be beyond the direct reach of Canadian authorities, yet fines may never be paid while criminal assets continue to exist beyond the reach of Her Majesty's government. Indeed, even if this new legislation is effective domestically, then we can well anticipate that the smarter and wealthier criminals will seek to deposit and invest their funds offshore.

According to the International Monetary Fund, estimates of money laundering worldwide amount to anywhere from $590 billion to $1.5 trillion.

According to the most recent Criminal Intelligence Service of Canada report:

—recent law enforcement projects in B.C. have discovered organized crime groups capable of laundering proceeds of crime derived from the cross-border smuggling of cocaine and marijuana, totaling approximately C$200 million.

That is just in B.C.

The Financial Action Task Force on Money Laundering, an international-based organization, has recently identified the following worldwide trends in money laundering typologies also evident in Canada: these include the use of wire transfers, and organized crime’s utilization of gatekeepers, as they act as intermediaries with financial institutions in addition to providing an appearance of legitimacy. In addition, casinos, including on-line casinos, white-label Automated Teller Machines (ATMs), and money service businesses, such as currency exchanges are increasingly employed by organized crime groups to launder their money in Canada.

While organized crime groups based in Canada are laundering money here and abroad, Canada is also used by foreign-based groups for the purposes of laundering the proceeds of crime due to the stability of the economy and the soundness of its financial sector. There are individual facilitators and criminal organizations who specialize in providing money laundering services to a number of other organized crime groups.These individuals and criminal groups are not necessarily involved in other types of criminal activity but they do provide an essential component to the successful operation of criminal networks even though they may not be core members of the organization. Some marihuana brokers, for instance, have tasked individuals outside of their criminal organizations with converting the U.S. cash into Canadian currency through currency exchanges on their behalf.

While Parliament is considering the very subject of seizing criminal assets, it is a most appropriate time to be examining how we might strengthen our efforts to reduce the laundering of funds and to repatriate criminal assets from foreign jurisdictions.

Some questions that need answers include the following.

Is there more that can be done domestically to track the flow of funds overseas?

What is needed domestically to help these efforts?

Do we need to impose an anti-money laundering regime on money service businesses and currency exchanges?

Do we need more resources for police or for FINTRAC, the Financial Transactions and Reports Analysis Centre of Canada?

Should we be looking at new treaties with certain offshore banking havens?

Alternatively, are there any jurisdictions that have become extremely problematic for Canada in our fight against organized crime for which the application of limited sanctions may be appropriate?

If the Minister of Justice is serious about forfeiture, then these questions also must be addressed more fully. While legislation alone cannot answer all of these questions, they must be answered all the same.

As I conclude my comments on Bill C-53, I leave members with some thoughts based on what I have been hearing from Canadians as I have travelled across Canada these past weeks as co-chairman of our party's task force on safe streets and healthy communities. Several themes have been repeated at these meetings, including dismay at the toothlessness of the Youth Criminal Justice Act, light or non-existent jail time for serious violent crimes and lax immigration rules that allow criminals to exploit the system. In addition, illegal drugs were fingered as a common denominator in most crimes, while unstable family environments were identified as the starting point for many career criminals.

There is much work to be done to reform the criminal justice system as my task force as reconfirmed. Again, I congratulate the Minister of Justice for adopting this important Conservative policy. I encourage all members to support this bill at second reading.

Criminal CodeGovernment Orders

September 28th, 2005 / 4:40 p.m.
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Bloc

Réal Ménard Bloc 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.

Criminal CodeGovernment Orders

September 28th, 2005 / 4:35 p.m.
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NDP

Pat Martin NDP 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?

Criminal CodeGovernment Orders

September 28th, 2005 / 4:25 p.m.
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Conservative

Vic Toews Conservative 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.