Bill C-53 (Historical)

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 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.

Criminal Code

[Pat Martin, NDP, 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, Liberal, 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.

[Joe Comartin, NDP, 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.

[Richard Marceau, Bloc, Charlesbourg, QC]

Madam Speaker, I thank my friend from Argenteuil—Papineau—Mirabel for his question.

This is, in fact, the kind of situation that we want to avoid. We want to ensure that people who have benefited for years from the proceeds and fruits of criminal activity, such as organized crime, are prevented from continuing to benefit from their property after they are been found guilty and done time in prison. What we want is to prevent them upon release from returning to an outrageous lifestyle in the eyes of the average citizen, who works hard every day to put bread and butter on the family table.

People convicted of serious crimes, like those described in Bill C-53, should not be able to benefit from the proceeds of criminal activity, which, whatever kind of crime it is, victimizes people in our society.

That is precisely why the Bloc Québécois has insisted for years on having such a bill passed. That is why Bill C-242 was introduced by your humble servant a few months ago. That is also why a motion was introduced by the Bloc Québécois on an opposition day asking for a bill like the one we are discussing today. That is also the reason why we support Bill C-53. We hope that it will be passed as soon as possible.

[Richard Marceau, Bloc, Charlesbourg, QC]

Mr. Speaker, I would like to thank my colleague across the floor for applauding my speech in advance. He does not know exactly what will be in it, but he is already applauding. Now that is a good sign.

It is obviously a very great honour and a very great pleasure for me to lead off the debate, on behalf of my colleagues in the Bloc Québécois, on referring Bill C-53 to committee before second reading. This bill will make it possible to reverse the onus of proof in proceeds of crime applications.

People will understand that I feel very proud to address the House at this time because the debate that we are launching is based on a struggle that the Bloc Québécois has waged for many years.

In order to fight crime better in general, and especially organized crime, the Bloc has long sought changes in the Criminal Code to provide a reverse onus of proof in proceeds of crime applications. This would force offenders, once convicted of a serious offence, to demonstrate on a balance of probabilities that their property was not acquired through criminal activity.

Organized crime is one of the most serious social issues that we face—all the more so in view of the fact that Quebec has been the scene for ten years of a bloody war among the various criminal motorcycle gangs. This is a war, we should remember, that has cost more than 160 lives, including entirely innocent victims who had the misfortune to find themselves in the way of these bikers.

In the name of public safety, but also and especially to support the police forces in their attempts to counter organized crime, we have campaigned fiercely for substantial changes to the current legal system in order to put more tools at the disposal of crown attorneys and police forces.

By amending the Criminal Code in accordance with the letter and spirit of Bill C-53, we will be taking a huge step forward, and I know already that our efforts will be welcomed by both the police forces and all crown attorneys.

The Bloc Québécois has been pressing the federal government for years to introduce effective legislation for fighting criminal gangs. During the 2000 election campaign, the Bloc carried on this battle, demanding that Ottawa amend the Criminal Code to give police and crown attorneys more effective weapons for fighting and eliminating organized crime.

I would like to take this opportunity to salute the hon. member for Hochelaga, who has been working on this issue for years, that is, since the death of young Daniel Desrochers, 10 years ago. My colleague is a leader in the fight against organized crime.

On October 27, 2004, with the support of the Conservative member for Provencher and the NDP member for Windsor—Tecumseh, I tabled Bill C-242. This bill served as a working paper for the legislation introduced by the Minister of Justice. I want to salute the courage of the minister, and particularly the determination that he has shown in finally convincing cabinet of the merits of the Bloc Québécois' proposal and of the need to follow up on it. It is unfortunate that, for too long, the Liberal government dragged its feet in the fight against organized crime.

It took the Bloc's determination and the government's minority status in the House to force a debate and the tabling of this legislation. Indeed, it was in March 2005 that opposition parties got together to have a motion, of which I was the sponsor, adopted by the House, challenging the government to propose, by May 31, 2005, legislative provisions that would reflect my Bill C-242. Bill C-53 was introduced in the House on May 30, at the very last minute.

Once it is passed, this legislation will greatly streamline the rules of evidence regarding the seizure of goods belonging to a person found guilty of certain offences. More specifically, the bill will amend the Criminal Code so that the goods—identified by the Crown—of a person found guilty of an offence involving a criminal organization, or found guilty of trafficking, importing, exporting or producing drugs, can be confiscated by the court, unless the offender can show, on a balance of probabilities, that his assets are in no way related to his criminal activities, and that they are not proceeds of crime.

In order for the reverse onus to apply, the Crown would first be required to prove, on a balance of probabilities, either that the offender engaged in a criminal organization offence or two serious offences for the purpose of receiving material benefit, or that the legitimate income of the offender cannot reasonably account for all of the offender’s property. I would point out in passing that a serious offence means a criminal act punishable by a maximum prison sentence of five years or more.

At present, in order to obtain an order of forfeiture, the Crown must prove, on a balance of probabilities, that the property is the proceeds of crime and that the property is connected to the crime for which the person was convicted. The Crown therefore must do two things: first, convict the accused and second, prove the illegal and illegitimate origin of the property in order to seize it.

The Charter rightly imposes respect of the right of accused persons to be presumed innocent. It is therefore fundamental that the Crown begin by establishing proof beyond any reasonable doubt of the guilt of the accused, before the reversal of the burden of proof intervenes in the equation. The Crown must prove, beyond any reasonable doubt, that the accused is guilty of a criminal offence and designate the property it wishes to seize because it is the proceeds of a crime. The accused must again prove, this time—I repeat—by the balance of probabilities, the legitimate origin of the property the Crown wants to confiscate from him.

The Bloc has been saying for years that this reversal of the burden of proof is necessary to battle organized crime and money laundering effectively. Organized crime represents an ongoing threat to society and so it is essential to have effective measures in place to facilitate the battle against this scourge.

Given the many negative effects of organized crime, in 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 are often reinvested in the legitimate world, but without making a positive contribution to it. The resulting tax evasion deprives governments of considerable revenues, and gangsters refine their techniques every day to avoid having their assets reviewed by the courts.

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 being convicted of a crime and then resuming their jet-set lifestyles as if nothing had happened, because they know full well that these people have not earned an honest dollar in their lives?

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 luxury 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 must take into account this particular reality whereby these front men are very often forced to obey the criminals.

I believe this is one of the concerns raised by our NDP colleagues. I can assure them that I will do everything in my power to reassure them in this regard. The analysis that lead to the introduction of Bill C-53 was largely inspired by a number of international legal precedents. The OECD's financial action task force on money laundering, the FATF, had proposed, in one of its 40 recommendations to fight money laundering, adopting measures allowing for the confiscation of assets.

I apologize for speaking so quickly, but I had a lot to say on this subject. I want to close by saying that I am extremely pleased that we are finally addressing this issue. I invite and urge my colleagues on all sides to rapidly conclude this stage and send Bill C-53 to committee, where, I am convinced, it will be adopted without further delay. Then, it will come back to the House and ultimately be passed in order to provide police forces and crown prosecutors with the tools they need and have been demanding for many years.

[Randy White, Conservative, Abbotsford, BC]

Mr. Speaker, we in the Conservative Party support Bill C-53. I want to make a couple of comments about things that take place in the real world outside Parliament because I spend a fair bit of time on street issues.

The hon. member on the other side talked about organized crime groups having substantial assets. I along with many other people really wonder what it is going to take in Canada to get organized crime groups off the streets.

We watch every day as the Hells Angels parade around the country with their nice jackets and their bikes and that sort of thing. Now they are disguising themselves by wearing suits. We are still allowing these people to rove around the country like they are some kind of bicycle heroes, but that is not the case. Those people are selling drugs to our kids. They are involved in prostitution. They are involved in all kinds of crime, and yet we tolerate their existence. I have a hard time with that quite frankly, and it is difficult to believe that it even happens.

Bill C-53 is important, but it is also important to follow up on my colleague's comments. This should not just be about the seizure of assets, because it is after the assets are seized that one of the biggest problems begins. I am going to cover several instances that I have been involved with just to give the House some examples. I also want to mention the contradiction in our laws today with respect to things like seizing assets.

I am very much involved in the debate about harm reduction in drugs, which of course is not harm reduction but rather harm extension. Harm reduction extends the use of drugs. It does not reduce the harm at all, as we will find out too late one day. Harm reduction involves injection sites, needle exchanges, crack inhalation sites, issuance of heroin to individuals, and the legalization of marijuana. Lately it also involves roving injection teams in Vancouver, if anybody has ever heard of anything so absurd.

Roving injection teams involve addicts who rove the streets and back alleys with needles to inject incapacitated addicts because they are too incapacitated to inject themselves. Not too long ago that was called attempted murder. When individuals walk into an injection site with illegal drugs in their hands, one has to wonder why there is some kind of free bubble zone to allow that when we are supposedly saying those kind of drugs are illegal to possess. The government has to get out of its schizophrenic mode where basically it is saying that drugs are against the law, but it is okay to break the law.

That is my preamble to my examples of this bill, which is really talking about seizure of assets, and it is a good thing.

Not too long ago there was a drug bust. It not only included drugs, but about eight or ten feet away in the rafters there was about $400,000 all wrapped up in plastic which the police took out of the building. This case went to court and the judge, in his infinite wisdom, gave all the money back to the dealers because they said they did not know it was there, that it was just something that must have been up in the rafters. Poor dears. He virtually gave the drug dealers $400,000 because in that courtroom with that defence lawyer, they did the wrong thing. They went after the defence of that drug money.

Although we have laws in this country, the problem is that lawyers on the defence side and the judges making the decisions are making the wrong decisions applicable to laws like this. It is not just the law that has seizure of assets that is important, it is the application of the law within the courtroom. I do not know what it is going to take for us in our society to go to the defence lawyers and say that we all have a problem, that for goodness' sake they know where the $400,000 has come from. It cannot be given back to the dealers. They would just use it to buy and sell again.

I cannot say how many times I have been involved in situations where money has been seized, put in trust because it cannot be given back to the dealers, when in fact the lawyers can get their hands on it. They go in on behalf of the dealers, charge a fee of the amount that is in the trust account, get all the money out of the trust account, give part of it back to the dealers and keep a good chunk of change for themselves. Those lawyers out there know who I am talking about. That is trafficking. It is wrong. It is stupid. It is not just a matter of setting a law to seize assets, it is the application of the law after it is made. These laws are not made to be broken or challenged. They are not made to have application under the Charter of Rights and Freedoms. They are made to prevent illegal use of money.

How do these guys get around it? I have mentioned before that recently a young man was kidnapped in my community. He was thrown into a van and pistol whipped. This sounds like something out of Terminator II in the United States. He was in the van which was involved in a high-speed chase with the police. The bad guys drove through a stoplight and killed a woman who was entering the intersection on a green light. They rolled the van and took off from the scene of the accident. It was a hit and run. Four of them were caught. All four were charged. They had guns, money and drugs in the car.

I was in the courtroom. They dropped all charges against three of them who said they did not know the other guy, that they did not know there was money in the van or to whom the drugs and gun belonged. It is the application of the laws. I do not know what it is in the House. We develop good laws and they are broken all the time.

There was hardly enough room around the front of the bench for lawyers because there were so many of them. Quite frankly it was a laughing stock of a zoo. Ultimately the driver of the vehicle was charged with dangerous driving. There were no gun charges. Everything was dropped.

The guy who was kidnapped, who was a witness, was asked what he did. He said, “I deliver”. “What do you deliver?” “Drugs”. He was asked if he liked that and he said no because his supervisor put him on the midnight shift from dial-a-dope.

These stories sound bizarre, but they are in fact true. What I am saying in the House of Commons is that while we have a bill we support, we have to approach those in the legal industry and tell them to apply this the right way and not to abuse where our intentions are going.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to rise today in debate on 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.

First and foremost, this bill seeks to amend the Criminal Code to put in place a reverse onus with respect to certain proceeds of crime applications. The new measures would apply to those convicted of a criminal organization offence or a serious drug offence and will provide that, subject to certain conditions, the property of such an offender identified by the Crown can be forfeited by order of a court unless the offender proves that the property is not the proceeds of crime.

In effect, these new provisions would add a new, more aggressive forfeiture method to the Criminal Code, in addition to the proceeds of crime forfeiture provisions that already exist.

This legislation also makes a number of corrective amendments to the current forfeiture of crime provisions for the purpose of ensuring clarity in these provisions.

The proposed new reverse-onus forfeiture power under Bill C-53 builds upon the current proceeds of crime scheme in the Criminal Code.

The current provisions originate from legislation put in place in 1989. They are part of the criminal process that comes into play when a court is imposing sentence on an offender. At their core, they are fundamentally designed to put in practice the straightforward principle that crime ought not to pay.

By allowing the government to claim the proceeds of crime, these provisions directly attack the illicit economic gain that is the prime motivation of many types of criminal activity, especially organized crime activity.

As such, proceeds of crime legislation is absolutely vital in helping to deter this type of crime and to undermine the criminal groups that are responsible for it.

These proceeds of crime provisions are found at part XII.2 of the Criminal Code. They allow for the forfeiture of proceeds upon application by the Crown after a conviction for an indictable offence under federal law, other than a small number of offences exempted by regulation. These offences, for which this current procedure is available, are referred to as designated offences under the code.

Currently, in order to obtain forfeiture the Crown must show on a balance of probabilities that the property is the proceeds of crime and the property is connected to the crime for which the person was convicted. Alternatively, the Crown can also obtain forfeiture even if no connection between the particular offence and the property is established, provided that the court is nevertheless satisfied beyond a reasonable doubt that the property is proceeds of crime.

Attached to these existing forfeiture tools are other related powers. These include, for example, powers allowing special search warrants to find property that may be proceeds of crime; the powers of restraint and seizure of property pending resolution of criminal proceedings to ensure that the property does not disappear before a possible forfeiture order; and provisions for court proceedings to permit relief from forfeiture where appropriate in order to ensure the protection of legitimate interests in property, including third party interests.

These existing proceeds of crime measures have proven to be fair and effective powers under the Criminal Code. However, there are strong arguments that they have not been effective enough.

While Canadian authorities have managed to seize, restrain and ultimately forfeit substantial suspected criminal assets, these amounts are believed to represent a relatively small proportion of the total amount of proceeds of criminal activity in Canada.

Organized crime groups in particular are believed to have control of sizeable financial assets that are the product of illicit financial activity that have not successfully been recovered by Canadian authorities. There is a substantial international dimension in this as well, as criminal groups transfer illicit gains out of the country, or indeed, transfer illicit gains from activities in other countries into Canada.

While our current proceeds of crime provisions are effective, the government is of the view that they can and should be improved upon, especially in relation to organized crime. We must build upon the current provisions in order to make them more effective. In particular, there are limitations in the way the current provisions operate that create barriers for police and prosecutors.

While criminal organizations are believed to be involved in numerous offences leading to substantial illicit material gain, convictions are typically obtained only with respect to a small number of offences. It is not always the case that these offences have associated proceeds.

For example, if such a criminal is convicted of murder, no particular proceeds will in general be associated with that one offence. Even for other types of offences that often do involve economic gain, such as drug trafficking, it frequently is the case that arrests will take place just before a major drug transaction takes place. While the organization itself likely will have been involved in numerous other trafficking activities, the particular offence for which the person is charged in that case would have involved an offer to traffic, for which there may be few or no related proceeds. Even where conviction does take place for an offence for which there are related proceeds, and forfeiture of these proceeds is possible, the particular offence and associated proceeds will very often only represent a small proportion of the total offences and illicit accumulation of property for which the criminal organization is responsible.

This means that the Crown often has to rely on the second branch of the current proceeds test, requiring proof beyond a reasonable doubt that the property is nevertheless the proceeds of criminal offences. This often means that even after a successful prosecution, there is a prospect of substantial additional proceeds litigation with sometimes doubtful prospects of success to obtain property, which in the organized crime context very much appears from the outset to be proceeds of crime.

It is for this reason that a new reverse onus proceeds of crime forfeiture power is needed. It is the view of the government that there are certain criminal circumstances under which it is legitimate to presume that the identified assets of an offender are proceeds of crime. Of course, it should still be open to an offender to prove on a balance of probabilities that assets are in fact not proceeds of crime. However, failing such proof, the property should be forfeited by the order of the court. This is the basis of the proposed new power under Bill C-53.

This is a type of procedure that has already been adopted in a number of other democracies in respect of proceeds of crime. It is a power that federal, provincial and territorial ministers responsible for justice have identified as needed in Canada as well.

I believe that this initiative has considerable support within this House. I urge all members to work together to ensure that it is passed as soon as possible.

[Lucienne Robillard, Liberal, for the Minister of Justice]

moved:

That 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, be referred forthwith to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

[The Deputy Speaker]

I declare the motion carried. Accordingly, the bill stands referred to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness.

(Bill read the second time and referred to a committee)

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

May 30, 2005--the Minister of Justice--Second reading and reference to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness 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.

Business of the House

[The Acting Speaker (Hon. Jean Augustine)]

My understanding is that the minister referred to Bill C-53. It is my understanding that it is the prerogative of the government to move this forward.

[Karen Redman, Liberal, Kitchener Centre, ON]

Madam Speaker, I believe my hon. colleague said Bill C-53.

[Claudette Bradshaw, Liberal, Minister of State (Human Resources Development)]

Madam Speaker, I rise on a point of order. Pursuant to Standing Order 73, I would like to inform the House that it is our intention to propose that 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, be referred to committee before second reading.

Criminal Code

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Madam Speaker, for allowing me to put a question to my colleague, the hon. member for Québec. I know that she is doing an outstanding job on status of women issues brought before this House. There are two bills in particular, namely Bill C-53, which is currently before the committee—I will have the opportunity to work on it in the coming months—and particularly Bill C-49, which I hope will be passed by this House and referred to the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness as soon as possible.

I would like to ask my hon. colleague the same question I asked of the previous speaker. I did not get a very clear answer from the department or from the member opposite. I know that my hon. colleague has done extensive work on this issue.

There is a clause in Bill C-49 that is of particular interest to us. I will quote it. It deals with causing:

—by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.

Under Bill C-49, this would be illegal and would be prosecuted under the Criminal Code as aggravated assault and assault with a weapon. I wonder if this will apply to the same extent to the whole issue of female circumcision.This is an issue that has been much publicized, without ever being settled. With this bill, could those who, directly or indirectly, commit this kind of aggravated assault on women be prosecuted? That was my question to the hon. member.

[Christiane Gagnon, Bloc, Québec, QC]

Mr. Speaker, thank you for giving me a chance to speak today on Bill C-49 so that the Bloc Québécois can state its position on this matter. This bill is of special interest to me in my capacity as status of women critic. This is a new job for me. The Bloc leader has asked me to be the status of women critic for the next session. I am also the social development critic. This is an important job as well because it is a matter of poverty, equity and quality of life.

Bill C-49 has to do with trafficking in persons. It is an alarming and revolting subject in some regards. It could also be said that the life story of abused people is deeply upsetting and morally unacceptable.

We know that some people profit from human misery—from the misery of certain people and cultures. Faced with these human tragedies, we as legislators must also do what we can and make our contribution toward a better understanding of how this Mafia-like crime works.

Today we offer our raised awareness and our understanding of this matter and the extent of the problem.

This is a complex subject with a number of aspects. Various people are involved. First there are those who are exploited: the women, children and men. Then there are the exploiters. Who are these people who profit from the situation? We know that there is a whole chain of activities from which a number of people benefit.

Today the Bloc Québécois considers Bill C-49 a step in the right direction, not just because it will provide a better framework for the drafters of the Criminal Code but also because it will make it possible to prosecute the people who benefit. There is a better definition of recruitment. It says, for example, how individuals are transported and how their housing makes it possible for the victims to be abused. This includes exploitation in the sex trade. That cannot be denied.

We were speaking earlier about trafficking in women. When a connection is drawn with prostitution, trafficking in women and children for the purposes of prostitution, we can see that we must be very vigilant about taking action with the Criminal Code. We must be better able to meet the needs of the people who are being exploited.

The purpose of this bill is to ban trafficking in persons. This means that those profiting from such trafficking will be doubly penalized. People have gone so far as to destroy or conceal I.D. in order to facilitate trafficking in persons.

All those who are involved in trafficking of persons will be prosecuted: those who are engaged in trafficking, those who receive financial gain from it, those who destroy or conceal identity documents in order to facilitate the offence of trafficking in persons. These are the ones who will be penalized the most heavily under the Criminal Code.

Under Bill C-49, anyone found guilty of trafficking in persons will receive a life sentence. There are also provisions for accomplices to a kidnapping, aggravated assault or sexual assault, or the death of a victim during the commission of the offence. They will be liable to a prison sentence of 10 years.

Any person who takes financial advantage of forced labour, which is another thing imposed on the victims of trafficking of persons, would be liable to a maximum 10 year sentence. Five years would also be a possibility for those taking possession of identity or travel documents belonging to a victim. Those destroying identity documents would also be liable to a prison sentence.

With this bill, a whole chain of individuals linked to the human trafficking trade will be far more heavily punished.

We know that the Minister of Justice tabled eight clauses on May 12, 2005. These very brief clauses will amend the law and create three new offences:

(a) create an offence of trafficking in persons that prohibits a person from engaging in specified acts for the purpose of exploiting or facilitating the exploitation of another person;

(b) create an offence that prohibits a person from receiving a financial or other material benefit that they know results from the commission of the offence of trafficking in persons;

(c) create an offence that prohibits concealing, removing, withholding or destroying travel documents—

The foregoing is part of the summary of the bill, which will amend the Criminal Code and create three new offences.

The bill also defines the concept of exploitation as it relates to human trafficking, for instance forcing a person to work or provide services, including services of a sexual nature, causing a victim to believe that their safety or that of a person close to them would be threatened if they failed to do what is required of them. The same goes for causing a person, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.

These are the changes contained in the bill with respect to exploitation as it relates to trafficking in persons.

Human trafficking could be described as modern slavery. As we know, the first to be exploited are women and children, the most vulnerable in society. Also, on certain continents, the victims are individuals living in minimal conditions for survival.

Everyone involved in trafficking, be it to recruit, transport or house for the purpose of sexual or other exploitation, has to be punished. The victims are first deceived, and often coerced. This is taking place here, in Canada. It is reported that 800 persons are the victims of this kind of abuse in Canada every year. We thought this could not happen in our country, that it only happened in developing countries or in countries that turn a blind eye to trafficking in women, children and men. Such trafficking exists for all sorts of purposes; it may be for purposes of sexual exploitation or for labour purposes.

In 2000, the United Nations published a report on trafficking in women. Canada is said to be among the 30 top destinations. The countries involved are divided into countries of origin, transit and destination for this type of trafficking. We must therefore be extremely vigilant.

I am pleased to see the Criminal Code further strengthened today, so that something can be done about this. We are aiming for zero tolerance in terms of violence against women, but also with respect to human trafficking.

This also allows us to raise public awareness. This is modern-day slavery. Many might think that slavery existed in another century and that we celebrated the 150th anniversary of the end of racial exploitation. However, this type of slavery still exists today.

We know there were a number of events to celebrate the abolition of slavery, but this type of slavery still goes on today. In the context of globalization, the transfer of individuals takes place much more quickly and we know this type of trade is in demand.

Without a stringent Criminal Code, there is permissiveness. This allows traffickers or the mafia to set up in countries that are more lax.

In addition, the 2000 United Nations report on trafficking in women recommends that countries review their overly restrictive, even anti-immigration, approaches, as I was saying. Earlier someone asked what we could do to be more understanding with respect to this type of trafficking. Some people want to emigrate to other countries where living conditions seem better. We could stop granting so many temporary visas to tourists, instead of putting the brakes on real immigration possibilities for some.

This is a recommendation from the 2000 United Nations report on trafficking in women. It is a question of responsible immigration policies.

There is fertile ground for the growth and perpetuation of the exploitation of women. Victims should not be treated as illegal immigrants. This is an area that could be addressed much more proactively. It is a matter of having policies on illegal immigrants, not treating victims as illegal immigrants or criminals, but as women, children, even men who have been abused by people who are part of a mafia, who want to exploit them and who take all human dignity away from those who have suffered this abuse.

A 2005 report by the International Labour Organization estimated that at least 2.4 billion people in the world are victims of abuse, threatened physically or psychologically by their attackers. Their labour is also exploited.

Some of these people are threatened physically, are forced into prostitution or jobs in various sectors that are poorly paid, if at all. There is the construction sector, for instance, but also agriculture, in which some people from other countries work. Here too there are abuses in regard to working conditions and pay.

This entire work-related sector represents US$32 billion on a global scale. That is a lot of money. Who benefits? It is the companies that may pay a little less for clothing and all kinds of services and materials. At the same time, other people suffer the effects of reducing the cost of clothing or other things we use in our daily lives.

The report also emphasizes that forced labour can be abolished if governments and various national institutions take persistent, meaningful, political action. Bill C-49 can therefore be seen as part of a slightly more determined demonstration of their commitment to the abolition of certain conditions in which people live.

In addition, the legislation must be strengthened. The report states as well that governments should become involved in eradicating this kind of treatment of human beings. This concerns not just a country but the entire international community. According to the 2005 report of the International Labour Organization, we need to do more than simply encourage governments to change their laws and adopt policies to eradicate such treatment of human beings.

The report also calls for the creation of a global alliance. We cannot do this in isolation, each of us in our own corner. A global alliance is needed, involving all levels of government, employer and employee organizations, development agencies, financial institutions, civil society, research institutions and academics. It would be a grand coalition that could be much more vigilant on a number of social levels.

It is to be hoped that this scourge can be relegated to the past and ancient history. We hear that some countries have taken certain initiatives. For instance, the United States passed the Trafficking Victims Protection Act in 2000, which created new offences so that crimes in the criminal code could be punished more severely, as is now being done.

Moreover, the victims who cooperate with American authorities during the investigations are protected from deportation. The United Kingdom, France and Japan have also amended their legislation to include harsher provisions.

The fight against organized crime is also a step in the right direction. My colleague, the hon. member for Hochelaga, has worked very hard to get the government to come up with better targeted provisions against organized crime.

So, Bill C-49 is a good tool to prosecute those individuals involved in human trafficking. It is said that the fight against exploitation goes hand in hand with the fight against organized crime. Bill C-49 pursues that objective and it has the great virtue of broadening the scope of the tools available to prosecute individuals.

Criminal organizations engaged in human trafficking are first and foremost motivated by profit. The reversal of the burden of proof will facilitate the work of authorities and allow them to seize the property of individuals who are members of criminal organizations and who profit financially from the trafficking in persons.

The Bloc Quebecois has long been asking for the implementation of measures to fight organized crime more effectively. Last year, the hon. member for Charlesbourg—Haute-Saint-Charles introduced Bill C-242 to allow for the reversal of the burden of proof, which would compel an offender who is found guilty of an offence related to organized crime to demonstrate on the balance of probabilities that his assets were obtained in an honest and legitimate fashion.

That is one way to go a little further than the bill before us does. We must also target organized crime. Indeed, based on all the reading that I have done, organized crime is a pillar of this trafficking of children and women. There is money to be made in it.

On March 11, 2005, an opposition day, the Bloc Québécois went a step further by presenting a motion forcing the government to table a bill to amend the Criminal Code reversing the burden of proof as regards the proceeds of crime. In response to this motion, which the House passed unanimously, the federal government tabled Bill C-53. It is essential to waging real war on organized crime and money laundering and to righting the injustice that has too long allowed criminals to profit from trafficking in humans.

Therefore, the Bloc Québécois urges the government to keep its promises and allow Bill C-53 to quickly become a reality. This bill was introduced by my Bloc colleague, the member for Charlesbourg—Haute-Saint-Charles.

As I said earlier, it is alarming and loathsome to see so many men, women and children being exploited. The theme of the 2000 World March of Women was poverty and violence, which are not too far removed from the consequences of human trafficking.

There was a committee on prostitution. Like the other parties, the Bloc will submit a report in committee about whether to decriminalize or legalize prostitution. I am not passing judgment on this important issue today. My colleague from Trois-Rivières has worked on this issue. She will tell the House about the various directions she would like to see taken with regard to this report. First, it will be subject to consideration in committee.

We must be careful when we talk about decriminalizing prostitution or drugs. It may encourage the prostitution of children, women and men. After the fall of the Soviet Union, for example, sex industry dealers engaged in the serious trafficking of women and girls from Russia and Poland to Germany and Western Europe.

Women, too often still minors, are terrorized, stripped of their papers and drugged. When they regain consciousness, they do not even know what city they are in. They are shipped from country to country like cattle. How can we ignore the many women and children all over the world who have disappeared? It is very troubling.

Today it is not only important to talk about the meaning of Bill C-49 but also to speak of all these victims and all these human dramas. I have seen a number of reports and programs on this. Very often families are affected. People go out in to the countryside telling young women they can get work in the textile industry or as hairdressers and promising them jobs. Not only are there no jobs, but they very often end up being sexually exploited.

Today there is a lot of misleading language being used. People often try to conceal the fact that this is slavery and not sexual freedom. There is a debate going on at present as to whether prostitution is a matter of free choice or nothing more than slavery. The committee that will study the report on the sexual exploitation of women will have to decide that.

There are 54 western countries, Canada among them, engaged in sex tourism and therefore controlling most of the “commodification” of women and children. So this is an issue of concern to all of us today.

I would have liked to have given more examples of these human dramas, but my time is up. I await my colleagues' comments and questions. I was very pleased to speak on this important matter.

Business of the House

[Tony Valeri, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, our principal legislative objectives continue to be Bill C-43, the third reading vote of which will take place after question period, and Bill C-48. The government believes these bills reflect public interest and the enactment of both of these bills is required before the House adjourns for the summer. As the hon. member mentioned, if the House does not pass Bill C-48, we will be here in July and August. Consequently, we will continue to give these bills priority until they are disposed of.

We will then consider report stage of Bill C-38, the civil marriage bill; Bill C-25; Bill C-28; Bill C-52, the Fisheries Act; Bill C-47; Bill C-53; Bill C-55, the bankruptcy bill; and Bill C-37, the do not call legislation.