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.