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.