Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 25 - Evidence, November 24, 2005
OTTAWA, Thursday, November 24, 2005
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-53, to amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act, and to make consequential amendments to another act, met this day at 10:51 a.m. to give consideration to the bill.
Senator Lise Bacon (Chairman) in the chair.
[English]
The Chairman: This morning we have on our agenda Bill C-53, to amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another act.
Appearing before us — and thank you for being here, minister — we have the Honourable Irwin Cotler, who is Minister of Justice and Attorney General of Canada. With him, from the Department of Justice, we have Mr. Shawn Scromeda and Mr. Stanley Cohen.
Welcome to you. We will hear from you first, minister. I am sure my colleagues have many questions to ask this morning.
[Translation]
Hon. Irwin Cotler, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Madam Chairman. It is always a pleasure to appear before your committee, particularly as it exemplifies the Senate's contribution to the parliamentary and legislative processes.
Your committee demonstrates that the Senate is indeed the chamber par excellence of sober second thought.
[English]
I have just come from an extraordinary meeting and I would like to read something into the record. It is not in relation to proceeds of crime, but it is not often that one can have a meeting with real heroes of human rights and of humanity. I want to take two minutes because there will be no other opportunity before Parliament adjourns to make reference to them.
The first is a lawyer in Sudan by the name of Salih Mahmoud Osman, who has been working for 20 years to provide free legal assistance to those arbitrarily detained and tortured in Sudan for no reason other than that they have opposed a government policy or are not of the appropriate ethnicity and the like. He, too, has been the subject of arbitrary arrest and detention, but he continues to persevere.
It is an act of extraordinary courage. He puts not only his livelihood but also his life on the line every day. He left the meeting to have other meetings with officials, but will be returning to Darfur to continue his courageous work. I thought it would be appropriate in some way to have Parliament appreciate that courageous work. We hope that Canadian parliamentarians will be able to assist civil society in Sudan that is working so courageously to counter impunity, bring about accountability and protect civilians caught up in the vortex of war crimes, crimes against humanity and, arguably, even genocide.
The second person is a young Iranian journalist, Omid Memarian. He mentioned to me that, in the context of the importance of a generation of young human rights defenders who have emerged in Iran, 70 per cent of Iranians are under 29 years of age. They have come of age, in human rights terms, in the last decade. They are at the forefront of the struggle for human rights and democratic reform in Iran. Again, he is another courageous individual putting his life on the line as a journalist to protect freedom of the press and advocate for democratic reform.
The third is a woman, Beatrice Were, who has become the face of AIDS in Uganda. She contracted AIDS from her husband and has been struggling with the need for all forms of preventive care and assistance to combat the scourge of AIDS in Uganda.
For the understanding of the two senators who just arrived, I wanted to read into the record the results of an extraordinary meeting I had this morning with three real human rights heroes of our time — one a lawyer, Salih Mahmoud Osman, from Sudan; a second, Omid Memarian, from Iran; and the third, a woman, Beatrice Were, from Uganda.
Thank you for allowing me to do this. I felt that sometimes we get so caught up in the important work that we do, we may not always take note of extraordinary acts of courage by individuals who are really working on the collective behalf of humanity and human rights as a whole. Where we can provide them with some recognition of their efforts, encouragement for their work and help in their struggle, I believe that is part of our responsibilities.
The Chairman: I thank you for sharing that with us, minister.
Mr. Cotler: As you know, I am here today to discuss Bill C-53, which is known in shorthand as the proceeds of crime legislation.
The raison d'être of this proposed legislation is to combat organized crime by adding a new, targeted proceeds-of-crime forfeiture power to the Criminal Code. A further purpose is to make a number of smaller amendments with respect to the existing proceeds-of-crime scheme in the code.
The first question that you would have is, frankly, the first question that I put to my officials when this was presented to me. I want to acknowledge at the outset that I do not have any particular expertise, let alone experience, in this genre of criminal law practice. That is why the chair identified two experts with me today, and they will play an important role in today's discussion because they have that kind of expertise and experience. It was to them that I turned when I put the first question that you might want to put to us. Why do we need this bill? What is the purpose of it? Do we not now have in place, from my minimalist knowledge of this issue, forfeiture powers with respect to the proceeds of crime?
The answer to that, as they gave it to me and as I share it with you, is yes, we do have such powers. These existing powers, which are found in Part XII.2 of the Criminal Code, provide extensive measures to allow the restraint and seizure of property when there are reasonable grounds to believe that it is the proceeds of an alleged offence. They further provide — and I am talking about the existing framework — for the eventual forfeiture of proceeds of crime after conviction. That is an important point. We are talking here about a process of forfeiture after a conviction has been secured.
As well, extensive procedural and substantive provisions accompany these powers, including those protecting valid interests in the property that may be otherwise subject to seizure, restraint and forfeiture. Part XII.2 already represents a substantive and important part of the Criminal Code, and its provisions can be and are being used to deprive criminals of ill-gotten assets.
The question, again, is: Why are you doing this? You acknowledge that these powers now exist in the Criminal Code and they appear to be reasonably effective.
The truth is that the existing proceeds-of-crime scheme has been generally effective. The problem is that it has been insufficiently effective. It has been inadequate when it comes to the problem posed by organized crime. That is why we must keep in mind at all times that the raison d'être of this bill is to get at the ill-gotten gains of that organized crime, and that is the lacuna in our existing scheme.
Organized crime in Canada is believed to gain rather substantial income from its criminal activity. We do not have exact figures because we do not have access to financial data from the very criminal organizations that we want to combat. Most general estimates are that we are talking about billions of dollars per year. Our existing proceeds-of-crime scheme has been able to deprive criminals of only a small proportion of these amounts. That is why we say that, while it is generally effective and adequate, it has been rather ineffective and inadequate when we are talking about the proceeds from organized crime. The reasons for this lie, in part, with the basic nature of forfeiture under the existing scheme. In essence, our existing proceeds-of-crime scheme is largely designed to allow for the forfeiture of the identifiable proceeds of discrete and individual offences.
I will now give a tedious explanation of the existing framework and then the new framework. When I myself reviewed it, as I told my two officials this morning — because recently, all other issues were interposing themselves — I began to numb myself to sleep in trying to appreciate the present scheme, let alone understand the new one. As I take you through it, if you find that I am numbing you, know that I have already done this several times to myself. We are dealing here with technical appreciations of the law. Therefore, I have the two experts who can afterwards put it in reasonable, plain language if I fail to be appropriately responsive to your appreciation of these issues.
Under the existing scheme, forfeiture of the proceeds of crime can be ordered after conviction of a "designated offence." We must keep in mind that we are talking about the necessity for prior conviction. These designated offences comprise most indictable offences under federal law. However, in order to obtain the forfeiture, the Crown must first show, on a balance of probabilities, that the property is the proceeds of crime and, second, that the property is related to the crime for which a conviction was obtained. If there is no connection between the particular offence and the property, then the forfeiture is still possible, but only upon proof — and this is a different evidentiary threshold — beyond a reasonable doubt that the property is nevertheless the proceeds of crime.
[Translation]
Herein lies the fundamental dilemma of the present regime when it comes to the proceeds of crime and ties to organized crime.
[English]
The dilemma arises with respect to the existing proceeds-of-crime scheme and its relationship to organized crime. Criminal organizations are believed to be involved in extensive criminality leading to substantial illicit gain. This is the product of countless offences committed over numerous years. However, the reality is that convictions will only be obtained for a small proportion of these offences. Further, the individual crimes for which convictions are obtained may well be ones such as the crime of murder, for which there may be no particular associated proceeds. You can have the crime and not the proceeds, and therefore the legislation will not get at the proceeds in the required manner. Even if convictions are obtained for offences with particular associated proceeds, these proceeds will only represent a small part of the total proceeds of crime that have been gained and controlled by the criminal organizations over the years.
Furthermore, even employment of that second branch of the existing scheme, where there is no connection between the proceeds of crime and the offence committed, can lead to incomplete divestiture of ill-gotten assets of criminal organizations, as it will often be impossible to provide the high standard of proof beyond a reasonable doubt that property is nonetheless tied to other crimes but not that particular crime. The result can be that even after one or more convictions of those involved in criminal organizations, it can be exceedingly difficult to deprive these criminals of the proceeds of crime.
This is where Bill C-53 comes in, because it seeks to address this dilemma and to provide a resolution to it. It is a dilemma whereby we are not getting at the ill-gotten gains that organized crime is securing because the nature of the existing forfeiture scheme does not get at those criminal organizations and those enormous proceeds.
The new scheme is based on the principle that under certain conditions, the Crown is entitled to rely upon a rebuttable presumption that the property of the offender identified by the Attorney General is indeed proceeds of crime. In essence, under these conditions, it is reasonable for the offender to be required to provide an explanation of the legitimate origin of the property or to face forfeiture if he or she cannot do so.
Let me try to explain how Bill C-53 would work and take you through it, again appreciating that the sequence of steps that I describe to you may get lost in the explanation, and we will respond to questions afterward.
In the new scheme, as in the existing scheme under the Criminal Code, the measures would first require a conviction prior to a forfeiture application by the Crown. Given that, however, the proposed new forfeiture power is more targeted. The range of offences to which the new power will apply is considerably narrower than that under the old power, because we are trying to expressly target criminal organizations.
The proposed legislation would apply only upon conviction for a criminal organization offence as defined under the Criminal Code, punishable by five or more years' imprisonment, or upon conviction of one of the serious drug offences of trafficking, importing and exporting, and production of drugs, contrary to the Controlled Drugs and Substances Act, when prosecuted by indictment. This is because of our appreciation of the interrelationship and interconnectedness between drug-related crime and organized crime. For example, there has been a real concern about grow-ops, which have become a scourge in this country, and the penetration of those grow-ops by organized crime, the ill-gotten proceeds with respect to the grow-ops and the interrelationship with drug-related offences.
It is important to note that the existing proceeds-of-crime scheme will remain in place for the broader category of offences that are now subject to it. Indeed, it could even continue to be invoked for the offences subject to the proposed new scheme, should the Crown decide to proceed under the existing scheme in individual cases. This, in effect, gives the Crown the option either to proceed under the old scheme or, where appropriate, under the new scheme in which we are targeting organized crime.
Returning to the new forfeiture power proposed in Bill C-53, there is a clear reasoning underlying why a narrow category of offences has been targeted in the bill. As I mentioned at the outset of my remarks, the target of this new, more specific proceeds-of-crime scheme is organized crime. A conviction for a criminal organization offence is a logical precondition for the application of the new scheme. While we still have the prior conviction requirement, we are talking now about the criminal organization offences.
Criminal organization offences, as defined at section 2 of the Criminal Code, include the three principal offences found at sections 467.11, 467.12 and 467.13. These are: participation in the activities of a criminal organization; committing an offence for a criminal organization; and instructing the commission of an offence for a criminal organization. In addition, section 2 also provides that other offences may be considered criminal organization offences if they are indictable offences punishable by five or more years and are committed for the benefit of, or at the direction of, or in association with, a criminal organization. This recognizes that organized crime is involved in extensive types of criminality, but still requires, for the purposes of this new scheme, proof of a specific tie to a criminal organization. The criminal organization provisions are at the core of this new scheme. That is the targeted category of offences that we are seeking to address.
As I mentioned, the other types of offences to which the proposed new power would apply, important but sometimes not appreciated, are the serious drug offences of trafficking, importing/exporting, and production of illegal drugs, contrary to the Controlled Drugs and Substances Act, where these offences are prosecuted on indictment. While organized crime is involved in numerous types of illegal activity, extensive illegal activity in relation to drugs is its core and signature activity. This is the kind of interrelationship that we are trying to combat, particularly here in Canada, given the penetration by organized crime of the set of serious drug-related offences that I mentioned. It was thought, in keeping with the purpose of this proposed legislation, to make these offences directly eligible for the proposed new forfeiture power. Also, these drug offences are generally recognized as being of particular social harm and as justifying special measures in their own right.
The other House has been preoccupied with the concern in respect of drug-related offences. I note this often in Question Period. This is an attempt to get at that entire genre of organized crime conduct.
After conviction of one of the targeted offences eligible under the proposed new scheme as I have described it, the Crown is still put to a further step of proof. Thus, we have the questions of safeguards. 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 material benefit, or alternatively, that the income of the offender unrelated to crime cannot reasonably account for the value of the offender's property. This would occur when the assets of an offender are completely disproportionate to the income.
In considering the concept of a "pattern of criminal activity," a court is directed under the proposed measures to consider a number of factors, including the circumstances of the offence for which the offender was convicted and any other act or omission that the court is satisfied, on a balance of probabilities, was committed by the offender and constitutes an indictable offence.
As an aside, in my presentation today I am trying to anticipate some of the questions that senators might have on the bill and to take them through it in a logically sequenced way, step by step.
The court is directed not to find a pattern of criminal activity unless the court is satisfied, on a balance of probabilities, that the offender committed at least two other serious offences or one other criminal organization offence. The numbing effect begins now. It became particularly so for me.
Upon proof on a balance of probabilities of this pattern of criminality or, alternatively, proof that the income of the offender unrelated to crime cannot reasonably account for the value of the all the property of the offender is where the bill shifts to a reverse onus. Any property of the offender identified by the Crown is subject to an order of forfeiture unless the offender can demonstrate, on a balance of probabilities, that it is not the proceeds of crime. This is the essence of the reverse-onus forfeiture power being proposed.
There is an additional fundamental element of the scheme. Just when you think you might have it, we come in with another characterizing factor. As a balanced and appropriate safeguard with respect to the new proposed forfeiture power, we must ensure that we provide the appropriate protection and safeguards for the offender as consistent with the Charter and so on. The scheme also provides that a court may set a limit on the total amount of forfeiture by declining to order forfeiture of property that would otherwise be subject to it. The court would be required to give reasons for doing so and judicial discretion in this regard might help to prevent any unwanted and unfair effects of the proposed scheme.
It is worth mentioning that the proposed new forfeiture scheme includes a number of related subsidiary powers. These include, for example, powers that would allow for special search warrants to find property that might be the 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, to ensure the protection of legitimate interests in property, including third-party interests. These powers exist in the current proceeds-of-crime scheme under the Criminal Code. You have them here incorporated expressly by reference.
Numerous technical amendments are included in the bill before senators to ensure that these same powers extend to the proposed new forfeiture power as well.
I will turn now to the fundamental nature of the proposed new scheme. As I said, I have been trying to anticipate some of the questions on whether and how the new forfeiture power can be justified from the perspective of fairness. I put these questions to my officials in going through this exercise. In particular, it may be noted that reversal of the onus departs from normal criminal law principles, under which the onus generally remains on the Crown. Concerns in this regard could be voiced with respect to rights guaranteed under the Charter.
Those were some of the concerns that I raised in respect of this proposed legislation. In that regard, Mr. Cohen was engaged in an extensive Charter review. Charter analysis was part of the formulation of this bill and is reflected in the design. I need not remind honourable senators that my responsibility from a constitutional point of view is to be able to certify that proposed legislation does comply with the Charter. I have to give it the good seal of constitutional housekeeping approval.
The bill seeks to address the particularly compelling problem of organized crime and its prime motivation of illicit economic gain. In that context, it seeks to find a solution to the fundamental dilemma facing the Crown, of how to deprive these criminal organizations of these ill-gotten gains when the present forfeiture scheme does not appear to target adequately and effectively those organizations, and how to do that in compliance with the Charter. That is why we sought to narrowly target the measures to the objective, bearing section 1 of the Charter in mind at all times — to guard against overreaching and unfairness so that we can show that the limits on any Charter rights are reasonable, prescribed by law and can be demonstrably justified in a free and democratic society.
Not only would the scheme apply to a narrow category of offences, it would also require an additional stage of proof on the part of the Crown before the reverse onus can apply. It includes an opportunity for the offender to demonstrate that any property is not the proceeds of crime as well as an important discretionary limit on the total amount of forfeiture. There is also, of course, the judicial discretion with regard to the safeguard.
With respect to the principle of reverse onus, I acknowledge that this is not, generally speaking, a part of our criminal law. It does, however, exist and can be justified in certain circumstances. In particular, reverse-onus provisions may be supportable where there is a rational nexus between a proved fact and a further presumed conclusion that is inherent in the reversal. This was taken into account in the creation of this bill. In other words, there is a rational nexus between conviction for the narrow category of offences subject to this new power and the presumption that extensive property of those convicted of these offences is indeed the proceeds of crime, which it still remains the responsibility of the Crown to prove before the reverse onus would take effect.
The very nature of organized crime — reflected in the definition of "criminal organization" in the Criminal Code — is the engagement in criminal activity for the purpose of material benefits. We must understand what and whom we are dealing with and why we have targeted the bill in that regard. This rational nexus is further supported by the additional stage of proof to which the Crown is held, namely, of a pattern of criminal activity or that the income of the offender unrelated to crime cannot reasonably account for the value of all the property of the offender.
Finally, honourable senators, it is notable and relevant, with respect to support for the proposed new measures, that reverse-onus provisions for proceeds of crime also form part of the law of other democracies to which Canada compares itself, thereby comporting with the notion of what other free and democratic societies do with respect to combating organized crime. Other societies have found it a necessary and justifiable measure to respond to the compelling and demonstrable needs that I have mentioned.
I observed at the outset of my remarks that this bill also makes a number of amendments to the current forfeiture of crime provisions. The focus of these amendments is correction, clarification or streamlining of certain existing provisions. I will briefly describe these additional proposed amendments.
One provision of the proceeds scheme, which can be found at section 462.31 of the Criminal Code, has been found to contain a discrepancy between the English and French wording. In this case, the wording of the provision in English was seen by the government as being in accordance with the purpose of the section and it was decided that the wording in French would be amended accordingly.
A section of the current proceeds scheme also refers to the authority of the Attorney General of Canada to conduct proceedings in relation to proceeds of crime. This section would be clarified to ensure that this authority fully exists where the underlying criminal activity relates to an alleged contravention of an act of Parliament other than the Criminal Code or where there is a breach of a restraint order obtained by the federal Crown. This is a clarification amendment.
An amendment would also be made to the definition of the term "designated offence" to clarify that the existing proceeds-of-crime scheme can apply to hybrid offences, that is, offences that may be prosecuted on indictment or by way of summary conviction. Again, these things have been assumed, but they will now, for greater certainty, be appropriately clarified.
Finally, the search warrant provisions under the Controlled Drugs and Substances Act would be amended to ensure that warrants under that act can also apply in the case of investigations of money laundering and possession of proceeds of crime offences where these are related to illegal drugs. This again makes the connection between drug-related crime, organized crime and enforcement procedures necessary for investigative purposes in that regard.
In conclusion, honourable senators, in my view this bill makes a worthwhile and necessary addition to the proceeds-of-crime scheme under the Criminal Code. It provides for a new forfeiture power to target organized crime, but does so in an appropriately tailored fashion, with conditions and limits to guard against overreaching and unfairness. The bill also makes a number of smaller improvements to the existing proceeds-of-crime scheme.
I seek your support for Bill C-53, which has the support of all parties in the other chamber. It is a government bill, but I wish to acknowledge that the initial impetus for it was a private member's initiative. The government, with the concurrence of the members of the opposition, took leadership of the bill. Our officials worked to develop this proposed legislation in conjunction and consultation with members of the opposition. The bill was fast-tracked through the House of Commons, not because an election was looming but because there had been a consultation process. This bill is an excellent example of how we can legislate in the public interest with the concurrence of all parties. This is proposed legislation in the public interest to combat the scourge of organized crime and the drug-related dimensions inextricably bound up with it.
I hope that some of what I said today has helped you to better appreciate the bill. My colleagues here are prepared to clarify that which I left incoherent and to respond to any concerns, questions or comments you may have.
Senator Milne: Mr. Minister, you said that you have compared this bill to legislation in other free and democratic countries. Many of those other free and democratic countries do not have a Charter of Rights and Freedoms. You may have noticed that this place is a little more concerned with Charter freedoms and the constitutional rights of individuals than is the other place.
Under section 8 of the Charter, we are all protected from unreasonable search and seizure. Are you confident that reversing the onus onto an accused to prove that an item is not the proceeds of crime will not be found to violate section 8?
Can it possibly be saved by section 1?
Mr. Cotler: I am glad you brought up that question, senator, for a number of reasons.
First, as I said, we looked at other jurisdictions, such as Australia, the U.K. and Ireland. I singled those out because they have reverse-onus provisions not unlike what we are proposing here. You made the important point that we have a Charter of Rights; other jurisdictions may not. Therefore, we must hold ourselves to this standard of the Charter of Rights, not to the standard of the common law that will obtain in those jurisdictions.
Our officials, from what I would call a legal policy point of view, looked to see how these measures worked in other jurisdictions. They had to see whether what we were proposing comported with the Charter. I put the same questions to them as you have asked of me. I did that, first, to see if there is a prima facie breach of a Charter right — that is, section 8 with regard to search and seizure provisions — and if there is, is it otherwise saved under the section 1, demonstrable justificatory approach? What other free and democratic societies do is not unrelated to section 1, because that section directs us to look at what those societies do. You are correct in saying it is not enough to look at what other free and democratic societies do if it does not comport with our protections under the Charter.
I could best ask Mr. Cohen, who looked at these Charter provisions in that context, in particular at section 8, to respond.
Stanley Cohen, Senior General Counsel, Human Rights Law Section, Department of Justice Canada: I should answer it pretty easily by suggesting that the emphasis in section 8 jurisprudence has been on the protection of privacy interests and not the protection of property interests per se. I do not want to leave that on my own shoulders. I would rather quote from one paragraph from a decision by Mr. Justice McPherson, who is now on the Ontario Court of Appeal. He was sitting in the Ontario Court General Division at the time. It is a case involving Unishare Investments Limited in 1994. This is a forfeiture case involving selling flowers and a seizure without a permit. This kind of issue was raised. Regarding section 8, he said that:
The case law establishes clearly that not all things or property are protected by section 8 of the Charter. Rather, property is protected under section 8 only if the seizure of the property intrudes into or tramples the interests and values protected by section 8. In case after case, the Supreme Court has stated that section 8 protects the bodily integrity and privacy of people, not their property, unless the property being searched or seized relates directly to a privacy interest. If the Supreme Court of Canada had wanted to say that property standing alone was protected by section 8 of the Charter, almost every case it has dealt with provided an opportunity to do so.
We could have a long and extensive discussion about whether section 8 jurisprudence has been modified since that time. Undoubtedly, Charter arguments can be formulated on section 8. I would not want to present this as saying that there is no concern over Charter matters. Rather, we believe that there are strong, credible arguments that can be presented on section 8 in defence of this measure.
Senator Milne: Has the Supreme Court spoken on this matter?
Mr. Cohen: You can go back to Hunter v. Southam in the Supreme Court and examine the opinion of Mr. Justice Dickson, as he then was. We find that the emphasis in section 8, the core value being protected, is privacy. That is Mr. Justice McPherson's taking-off point.
Senator Baker: It is section 7, and not section 8, fundamental justice.
Senator Milne: They are carrying on from section 7 and fundamental justice.
Mr. Cotler: Let me go back to my depleted intellectual capital from my professorial days and try to recall some of that. I think it is relevant to the cluster of Charter issues that may arise, whether it is section 8 or section 7, and its relationship to section 1. We talk about the entire cluster of legal rights in section 7 onward in the Charter.
It was that cluster of legal rights that was looked at. To contextualize it for a moment, as Madam Justice Bertha Wilson put it, in Charter cases, if you want to appreciate the constitutionality of any particular piece of legislation, you have to look at the context in which it was enacted. I can give you example after example that has certain fact patterns that become valid in the context in which that issue arises.
If we look at the reverse-onus scheme in this particular bill, we have to appreciate, from a contextual point of view, that it is invokable only after conviction for a criminal organization offence or for certain serious drug offences. Also, the reverse-onus scheme requires — and this is the burden on the Crown for prosecutorial purposes — the Crown to satisfy an additional test in demonstrating that the offender engaged in a pattern of criminal activity for the purpose of receiving a material benefit or that the legitimate income of the offender cannot reasonably account for all of the offender's property.
I appreciate that if you look at the overall context of the Charter, the reverse-onus provision, if I can use another term, raises a presumption of a prima facie breach of Charter rights. The reverse-onus provisions have been upheld by the courts, including the Supreme Court of Canada. I refer you to the analysis of the Supreme Court in the R. v. White case 1998, 2 S.C.R., at page 3.
I will give you a quick summary of that case, which applies particularly to the understanding of context and purpose, another principle that the court uses in interpretation and charter jurisprudence along with the contextual principle, the purpose principle and the comparative principle in looking at other free and democratic societies and so on. The relevant factors that the court enunciated in upholding provisions such as those that have been put before you include the importance of the objective of the legislation — that might be called the purposive principle interpretation — and its careful design. We go to the Oakes test and the rational connection between the objective of the legislation and the means used to secure that objective and whether the results are impaired as minimally as possible. With respect to these Charter interpretive principles — the contextual principle, the purposive principle, the rational connection and the minimal impairment principle in the Oakes case — the Supreme Court's analysis in R. v. White goes into that.
Their particular application to this bill — what the court directs us in White and in all other cases on the Charter to look at — is tied specifically to the important objective of fighting organized crime and effectively depriving it of the financial gain that is its main motivating force.
I would expect that the court would look at the genre of criminal activity that we are seeking to combat here and will appreciate not only that we are dealing with criminal organizations and that the bill is targeted specifically to those organizations, but that we cannot necessarily get at the ill-gotten proceeds of crime without this kind of legislation.
The purposive nature of the legislation would be appreciated by the court in the context of what organized crime engages in. I think that the court would then ask the following: Is there a rational connection between the particular offences that are eligible for the application of the reversal of the onus and the reversal of the onus itself, the rational means test? Inherent in the very nature of organized crime is the commission of numerous offences for the accumulation of that illicit income. The rational connection would also be further supported by additional preconditions on forfeiture, which require proof, and that is the important point. The court will say that we have to provide proof of a pattern of criminality or unexplained accumulation of assets. Again, it would be the contextual principle, in respect of which we have a high threshold of evidentiary requirements tailored to the understanding of the nature of a criminal organization and how it uses ill-gotten proceeds of crime, including from drug-related offences, to further its international criminal activity, of which the organized crime component in Canada is one part.
The bill narrowly targets a genre of offences and thereby, with all the protections and safeguards, minimally impairs rights and provides a rational connection between the objectives sought, that is, the combatting of this scourge of organized crime, and the means used to achieve it.
In my view, senator, as someone who has concerns about reverse-onus provisions, having regard to the context of the bill, namely, organized crime; to its purpose, namely, to combat the ill-gotten proceeds of that organized crime; and finally, to the means by which we are seeking to do it, that is, through the crafting of a narrowly tailored law specifically designed to counter that specific genre of offences, I think the court would see it as one where if there was a prima facie violation of a Charter right — that itself would be arguable — the section 1 justificatory framework would be there.
Mr. Cohen wants to add a small point.
Mr. Cohen: I was trying to respond directly to your section 8 issue, senator, but reverse onus as it has been litigated in the law has pretty well always occurred as an argument raised in relation to section 11(d) of the Charter, which deals with the presumption of innocence. What we are dealing with here at the stage of forfeiture is someone who has already been convicted. Thus, there is no applicable presumption of innocence at this stage in these proceedings.
Senator Milne: The minister is leading into the next part of my questioning, which was presumption of innocence. I see that there is a relief-from-seizure provision in the bill, clause 9, for an innocent third party. What will innocent third parties have to go through to get their property back? Will they have to prove their innocence?
Mr. Cotler: In going through the safeguards in my previous answer to you, senator, I should have included the role of judicial discretion, which we are preserving, and also the judicial discretionary limit on the total amount of forfeiture in the interests of justice. Third-party interests are among the factors that could be considered by the courts in setting any such limit in individual cases, and more specifically, there are avenues under the current proceeds-of-crime scheme in the Criminal Code, before any amendment, by which an innocent third party can seek to retain an interest in property that will otherwise be or has been the subject of forfeiture proceedings. The bill makes specific provisions for ensuring that these avenues will apply in respect of reverse-onus forfeiture as well.
I will turn it over to Mr. Scromeda to respond more specifically.
Shawn Scromeda, Counsel, Criminal Law Policy Section, Department of Justice Canada: The minister is correct. We are careful to ensure that the current ability under the proceeds-of-crime scheme for third parties to contest forfeiture is preserved and extended to this scheme as well. Those are a number of technical amendments included in the bill.
In addition, as the minister has pointed out, there is an additional power here, not included in the current proceeds-of-crime scheme, which gives judicial discretion where additional third-party interests could be taken into account. For example — I think this is perhaps one of your concerns — if a third party was unrepresented and may not have been able to take advantage of some of the current provisions, a judge nevertheless, of his or her own motion, could raise it at the discretionary stage by saying, "No, this does not appear to be validly the proceeds of crime," or, "There appear to be other interests in this. I have my own motion and will limit forfeiture here." We have included an additional protection.
Finally, there is an additional protection inherent in the nature of what we have defined as being subject to reverse-onus forfeiture. With respect to the current scheme, there is no direct requirement that it be property of the offender. There is just a requirement that it be proceeds of crime.
Here, because we are more narrowly targeting it and are otherwise putting it on the offender to prove that it is not proceeds of crime we have limited it to the term used in the bill itself, "property of the offender." The Attorney General will have to demonstrate that it is property of the offender. We are talking about a narrower concept right from the outset.
Senator Baker: I want to congratulate the minister on his excellent presentation. Judges who will be looking at this proposed law in the future will appreciate that, because sometimes there is not a clear indication from the government as to the purpose of legislation. You have been forthcoming, exact and complete in your answer.
Mr. Cotler: The reason is I learned in my professorial days that you should read the purposes into the record so the court will understand what you had in mind.
Senator Baker: You will notice in R. v. Sharpe in 2002, this committee was singled out by the Chief Justice of the day in saying this was the only contribution. In fact, it was Senator Beaudoin who was singled out.
Mr. Cotler: He is another constitutional law professor.
Senator Baker: The reverse onus is clearly codified in various sections, 515, for example. Whether or not you will be released after you are charged, it is spelled out as a reverse onus in 515(6). We codified the reverse onus in other legislation, for example, the Fisheries Act. Where it has not been codified, as the minister has said, given the circumstances of the day and the public importance of legislation such as we have seen on impaired driving, every highway traffic act allows a police officer now to stop somebody for no good reason, generally speaking, and justify it by section 1 of the Charter. I do not think, minister, there is such a big deal here. Would you not agree? It is not such a big deal. What we have in legislation today as it relates to forfeiture is comprehensive.
The only thing that has really changed here that I can see is that you are extending a designated offence to include hybrid offences. Why you would do that I do not know. Under the forfeiture provision of the Controlled Drugs and Substances Act — section 8, as I remember — it clearly says that everything is indictable over $1,000; or is it $2,000, Mr. Cohen? Everything under that is considered to be a hybrid offence.
Mr. Cohen: No.
Senator Baker: Yes. You can be convicted either by summary conviction or indictably; the Crown can proceed if the amount of money involved is less than $2,000.
The Chairman: Senator Baker, you are asking a question; you should wait for the answer.
Senator Baker: Maybe in his answer he can correct me. My question is why would you do that? Why would you extend it to summary conviction offences and seize property of less than $2,000, as it applies to section 8 of the Controlled Drugs and Substances Act?
Mr. Scromeda: May I provide a preliminary response to that question? We have to be careful here; that is not part of the reverse-onus forfeiture scheme. That particular amendment is one of the clarification amendments with respect to the current scheme. Therefore, that amendment in that clause of the bill is restricted to the definition of "designated offence." With respect to reverse onus, we have further restricted the application of this scheme to certain offences so that —
Senator Baker: I am not talking about reverse onus; I am talking about the change you are making here in the bill. I am saying the only change I can see that is of any substance is in the definition of "designated offence."
Mr. Scromeda: Even that one, from our perspective, is more a case of clarification. We feel that hybrid offences are already captured, and perhaps this was your point. We changed some wording of the code to make that clearer — it was just a clarification amendment.
Mr. Cotler: May I take this back one stage to emphasize the difference, because I think that is the underlying sense of your question, senator? It is not different in the sense that we are engaged here in combatting the ill-gotten proceeds of crime, for which a remedy of forfeiture upon conviction already exists in the Criminal Code. It is not different in the sense that the Crown can still proceed with respect to that existing scheme. It does not have to use the new scheme if, under the facts and circumstances, the present scheme would be appropriate for that purpose.
What is different, and I think not unimportantly so, is that it targets all criminal organization offences as defined in section 2 of the Criminal Code for which punishment is five years or more. Therefore, it targets the core of what we want to combat — namely, organized crime, the criminal organizations engaged in that purpose, and the offences under the Controlled Drugs and Substances Act, specifically trafficking, import/export and cultivation of controlled substances where convictions were obtained. Here too, there is the interrelationship between the two. I might add that in identifying the criminal organizations and the drug-related offences in terms of the ill-gotten proceeds of crime, the serious range of these provisions can effectively embrace all property that is the result of the ill-gotten proceeds of crime. I am bringing in some of my own criminal law practical experience, Senator Andreychuk, not just the constitutional, professorial aspect that I was referring to with regard to the Charter.
The current bill will also, from an operational point of view, require the Crown, as a precondition to the reverse onus — which is not part of the old legislation, but a very important component of this bill — to show that the offender engaged in a pattern of criminality for the purpose of receiving the material benefit, or that the legitimate income of the offender cannot reasonably account for the offender's property. This entire component is not part of the other legislation simply because this is the underpinning of the reverse onus at the core of the new bill. I think in that sense, you see some important, distinguishable differences related to the purpose of the bill and the context in which that purpose is to be carried out.
Senator Andreychuk: I have three questions. Hopefully, they will be easy to answer.
Under the policies that we have, did you file a certificate with your cabinet colleagues that this bill complies with the Charter of Rights and Freedoms?
Mr. Cotler: I like your question for another reason. I have always felt that it is regrettable that people cannot sit in on some of these cabinet meetings because you would see a serious exchange of views such as I get when I come to this committee, which is why I enjoy appearing here. Yes, I did certify to my cabinet colleagues that this had the good housekeeping seal of constitutional approval — Charter protections. It was part of the memorandum to cabinet and it asked are there any risk factors with respect to this bill? In particular, are there constitutionally suspect factors? We have to certify that, and I take this on in my role as a minister.
Senator Andreychuk: Did you give it a clean bill of health or did you say there are concerns?
Mr. Cotler: Part of that is attorney-client privilege. It has to remain within the context of solicitor-client privilege, but I will say that I gave this a constitutional seal of approval.
Senator Andreychuk: I appreciated your candour at the start when you said that this is a difficult bill, and that even the Minister of Justice of Canada has to struggle to understand the context within the previous legislation and what it will do. The Auditor General said that in some areas, the police are getting more and more legislation to enforce and they are ill-equipped because they do not have enough resources — in other words, there are not enough policemen — and the training is lacking. It seems to me that this will be another example. When an attempt is made to apply it in Estevan, Saskatchewan; in Prince Edward Island, in Toronto, in Montreal, from rural to urban, to the North and the south, how will some policeman understand what is increasingly becoming difficult even for those who are trained and skilled and hold your position? Is it a fair load to put on the police and will there be some training? Will there be some resources to deal with this additional layer?
Mr. Cotler: They do understand it very well. If there are limitations — not so much on understanding, but on the explanation of it — I would ascribe them to my own limitations rather than anyone else's. As I said, it was not a genre with which I had specific experience. I had a lot of experience with the Charter and as a criminal defence lawyer, but I never dealt with organized crime. I never got involved in any of the ill-gotten proceeds.
Senator Andreychuk: That is reassuring.
Mr. Cotler: In the climate of today, you have to make these things clear. Adverse inferences can be drawn.
This is not a genre of practice with which I was familiar.
I wanted to go through it not only from the constitutional point of view, but the operational point of view on the ground. The police do understand those operational aspects.
I will be tabling proposed legislation tomorrow — I have said this before so I am not doing anything untoward — that concerns combatting guns, gangs and urban violence. There will be a set of legislative measures in that regard. It is a three-part package. The second part has to do with more effective law enforcement. The model there is not inapplicable here. We need more integrated, coordinated prosecutorial and investigative approaches so that the federal and provincial Crowns can work more closely together. This type of legislation has the integrated aspect of drug-related crimes, which involves federal prosecution, and the other organized crime offences under provincial prosecution. We envisage that kind of integrated model. We need to do more of this in law enforcement. We have been working too often in silos, both in the investigative and in the prosecutorial aspects.
I would like to see the Crowns involved earlier in the investigative aspect, and I would like to see the federal Crown more coordinated with the provincial Crown with regard to the prosecutorial aspects. We discussed this two weeks ago at the annual meeting of federal, provincial and territorial ministers of justice, getting a more integrated approach.
With regard to the additional resources, we did not announce any with respect to this bill, but under the recent federal budget, funding for the integrated proceeds of crime initiative was renewed on an ongoing basis, with $117 million over five years. It may not be appreciated that we have a specialized prosecutorial law enforcement approach organized around the integrated proceeds of crime initiative. We will monitor — and I am glad you asked that question — the integrated proceeds of crime initiative, for which we have received renewed funding for an additional five years, that is especially targeted for this purpose and see whether or not we may need additional resources and instrumentalities, having regard to the enhanced capacity now to identify and target criminal organizations and the drug-related activity in relation to it. You may be right that we will find that additional resources will be needed for that purpose, but the instrumentality for that purpose, namely, the integrated proceeds of crime initiative, is already in place and has that kind of specialized experience and expertise to engage in that kind of activity as well. Perhaps Mr. Scromeda wants to add something.
Mr. Scromeda: Yes. The police and Crown counsel who work in that area tend to be experts. We have specialized IPOC units. We are not dealing with people who would not be able to comprehend this bill.
Justice Canada does, as a regular part of its services, offer assistance to Crowns and police from across Canada from a training perspective.
Senator Andreychuk: My concern is that the proceeds of crime are not sitting where the specialized units are. They can be anywhere in Canada today, in any city. It means that some policeman, some unit has to make an assessment, then call on the specialized units and then get to a prosecutor. Those are all steps that require manpower and training. You can put all of the specialized units together you want, but we know that investigations and good police work break down if you do not spread them out to where the crimes are committed. They are not always committed in Toronto, Montreal and Vancouver. The specialization has to filter down and be capable of a quick response. With lack of training and resources, that becomes even more urgent. That is the point I want to make on this bill.
We have this bill because we were missing some proceeds of crime and there was a feeling in the community that we were not getting at it. It demands that quick, intelligent response.
The other concern that has been expressed is that as you widen this reverse onus, organized crime as it interrelates with terrorism and all kinds of trafficking, et cetera, is becoming very sophisticated, using the best tools available. The problem is that they are becoming more surreptitious and less transparent. The fear is that we may be trapping ordinary people dealing with the kinds of businesses that these people may set up, unaware that they are dealing with organized crime. Will their property and assets be subject to seizure in some cases? How do they then go about proving their innocence in the complexity of today's society and their alleged crime?
Organized crime was organized crime; you could see it. It then started to filter into what is called normal society and business transactions. How do we know whether or not we are dealing with organized crime when it seems to be pervasive?
Mr. Cotler: I made reference earlier to the protection with regard to third-party interests that could be possibly related to the proceeds-of-crime targeting and the safeguards set forth in legislation regarding both the avenues of redress for such third parties and the exercise of judicial discretion in that protective capacity.
Mr. Scromeda knows this very well and I might refer this to him at this point.
Mr. Scromeda: I would refer back to our previous response to the question, because in some ways it is similar. Are we not concerned about the potential for other persons who are innocent of any complicity to have their property caught up in this? Yes, we are. There are particular protections in the current scheme that have been extended to this scheme. Additional protections were added to this scheme as well. There is also the more narrow definition of what property can be subject to it in the first place, that is, property of the offender.
Senator Mitchell: My first question is perhaps too specific, but we were talking about the trafficking-in-people bill last night. I am interested to know whether that offence would qualify under this bill; and if so, whether it would include all three categories of offenders: those committing the act, those benefiting financially and those involved in destroying people's documentation or creating false documentation.
Mr. Cotler: Your question links up with Senator Andreychuk's question to the extent that organized crime activity is becoming more pervasive. It is linking up with all forms of transnational crime, whether it is money laundering with respect to terrorism or with regard to trafficking. We are finding that organized crime is also part of the trafficking of persons in its transnational dimension. To the extent that criminal organizations themselves would be engaged in the trafficking criminality, then yes, this bill would, together with the trafficking bill, be able to get at those criminal organizations.
Senator Mitchell: That is for all three categories? You do prioritize the categories here, if you judge the potential penalties: life, 10 years and 5 years.
Mr. Cotler: If they are directly engaged in the first category, with regard to the exploitation of the offence, then that would be an implication there.
The main point is what I referred to earlier. You take the definition of a "criminal organization" as set forth in section 2 of the Criminal Code. You then look to the three principles: Criminal organization offences that are set forth in sections 467.11, 467.12 and 467.13 of the Criminal Code. The question then becomes: Are we speaking about participation in the activities of a criminal organization? Are we speaking about committing an offence for a criminal organization? That can catch you in the other parts of the trafficking provisions, if you are engaged in the destruction of documents at the behest of or at the direction of a criminal organization or instructing the commission of an offence for a criminal organization. Section 2 provides that other offences can be considered criminal offences if they are indictable and punishable by five years — that takes you clearly into trafficking — and if they are committed for the benefit of at the direction of or in association with a criminal organization. This recognizes the extensive nature of organized criminal activity — that is, the manner in which they are involved in extensive types of criminality — but you will still at all times have to provide that evidentiary connection to a criminal organization. To the extent that you can do so, you can get them under each of the components of the trafficking offences.
Senator Mitchell: Does a pattern of criminality have to be premised upon previous convictions for the court to draw that conclusion?
Mr. Scromeda: The answer is no. It could be, but we have actually allowed for the pattern of criminality to be proved on a balance of probabilities.
[Translation]
Senator Rivest: In the case of seized property belonging to a third party, the burden of proving that these goods were not acquired as a result of criminal activity rest with that third party. Correct?
Mr. Cotler: I will try and answer that question. Ultimately, one must present evidence in order to make this charge to which the defendant must respond.
[English]
Mr. Scromeda: Yes, with respect to the existing protections and the procedures that we have extended from the existing proceeds-of-crime scheme, it has been recognized that if you want to allege that this is your property and not a criminal's property, and that you are innocent of complicity, there is an onus on you to demonstrate that. However, I would add in respect of the new reverse-onus scheme, we have added additional protections. The judicial discretion for a limit on forfeiture, which the judge can raise of his own motion, is one. In that case, there is no particular onus on a third party. The third party may not even be there.
Going back to the additional limited part of this scheme, from the outset it must be property of the offender. That is something that the Attorney General, the Crown, must demonstrate from the first instance. We have added additional restrictions and protections in this regard, recognizing the potentially broader nature of the forfeiture involved.
[Translation]
Senator Rivest: Criminals resort to all kinds of tricks when a close relative is involved. As Senator Andreychuk pointed out, in the real world, criminal activity is becoming increasingly sophisticated. Any citizen runs the risk of being implicated, without his or her knowledge. To make his case, a person will need to call on the services of a lawyer to defend him and to consult legal experts. The burden will be especially heavy, regardless of the merits of the aims being pursued. Everyone is in agreement on that score. An extremely heavy burden will weigh on people.
There will be costs, both legal and economic, incurred by individuals in an effort to mount a defense and extricate themselves from a situation with which they had nothing whatsoever to do. The state will impose a financial, professional and emotional burden on these individuals, not to mention that their reputation will suffer since there will be a trial. I can understand the objectives and precautions you mentioned.
However, there is always a danger that honest citizens will increasingly be implicated in situations that are not clear. In our society, people are deemed innocent. No person is prosecuted unless there are reasonable, probable grounds to believe that he or she committed a crime. A person might have in his or her possession a good that is two or three times removed from a criminal activity.
Can you appreciate our concerns?
Mr. Cotler: One must bear in mind that the issue here is not the notion of presumption of innocence. We are merely talking about the consequences of seizing property following a conviction. This is an important point to remember because this entire process rest on this premise.
It is also important to remember that the existing process can also give rise to the same concerns. The new process involves a series of safeguards which include the role of judges and protecting the interests of a third party. I will give my colleagues an opportunity to answer this question.
[English]
Mr. Cohen: I wish to point out that the Crown must identify which property it will seek forfeiture on. That particular factor can be an important one because it does provide an opportunity, once you move into the forfeiture stage, for the exercise of professional judgment and discretion. There is a possibility that oppressive circumstances resulting in difficulties for totally third parties could be ameliorated at that stage. There is the other aspect of judicial discretion later on. There is also Legal Aid and other schemes that might have a role to play in attempting to ameliorate some of the worst aspects of what you are concerned about here.
Senator Joyal: My question concerns the principles involved in this bill versus other legislation that has been adopted by Parliament, especially in relation to the power that is now given to the Canada Border Services Agency to seize money at the border.
I have listened to you carefully. You have been surgical in establishing all the preconditions for a judge or a court to conclude that the forfeiture should be granted.
You have mentioned proposed section 6(1), which states that a person must be engaged in a pattern of criminal activity; that the person also must have income that does not support the properties under his or her name; and the elements related to the barriers, such as whether it is in the interests of justice. That is to say, it should not bring justice into disrepute. There are many others that I have been able to identify. Finally, there is the catch-all phrase of proposed subsection (2.04)(d) "any other factor the court considers relevant." That net is wide open.
Those safeguards that appear reasonable do not seem to exist for persons who try to cross the border on a plane and have cash in their possession seized. Those persons might not be engaged in criminal activities and might not have any charge against them. In such a case, the people would have to be found guilty of a designated offence. Nevertheless, their money is confiscated. The reverse onus occurs in this instance such that it is incumbent upon the individual to establish that the money was acquired legally. That creates a presumption of guilt — that the money was acquired illegally. If individuals are unable to meet that reverse onus, then they will lose the money.
In comparison with the principles and safeguards in other legislation, this bill does not seem to be as coherent. I am not talking about someone who has been deemed a terrorist. Of course, that would be a designated offence under the bill and that person would face the same requirements. Rather, I am talking about the legality of ownership of money for someone who is not engaged in a criminal activity or has no pending guilt recognized in a court.
There is an action in the Federal Court in Toronto by travellers who found themselves in such a position. I do not know whether Justice Canada has filed a defence or a declaration in that case. The system must be coherent when you go to such lengths to try to circumvent the power now given to the court versus what we have given in another regard. Is that legislation in sync with this bill on the basis of the principles that you have established?
Mr. Cotler: The main approach that must always be kept in mind, although we may not always appreciate it, is that this entire bill presupposes not simply criminal activity or alleged criminal activity but that a conviction has been secured. In that kind of cross-border situation where a person may be arrested, you cannot move into the proceeds-of-crime dimension until you have secured a conviction. From the point of view of the purpose and framework, as you put it, it is basically the same as the existing scheme, which is that first you must secure the conviction and then you can go after the proceeds of crime, with the safeguards in the existing scheme in the manner that I described as the two approaches.
The only — but important — difference is that it is targeting a genre of offences that is not specifically and expressly targeted in the existing legislation, and that includes a set of safeguards because of the manner in which it was targeting those specific offences — the reverse onus — which does exist in the current legislation. Basically, you have the same principles. You cannot make a move until there has been a conviction, and when you move following a conviction, you have to do it in such a way that you are talking about proceeds of crime in relation to the offence, et cetera, and the evidentiary burden. In the bill we are saying the same thing, but targeting a specific criminal organization offence and specific ill-gotten proceeds of crime that relate to that offence. After you have shown the pattern of criminality or after you have demonstrated the connection between the proceeds and the criminal activity, with all the evidentiary requirements, then the reverse onus kicks in, and not before. When it kicks in, an entire set of safeguards is in place for that purpose.
I do not think it is analogous to the situation of which you spoke in respect of the Canada Border Services Agency. I am not sure which specific legislative framework you referred to in that respect.
Senator Joyal: Perhaps your advisers or representatives would be able to identify the case to which I refer. The complainant is from Lebanon and is suing the Minister of Public Safety and Emergency Preparedness in Federal Court in Toronto on the basis that $40,000 was seized from him. At the time it was reported last spring, your department had not filed a defence. Perhaps one has since been filed. If so, on what basis have you established the principles of the legality of the reverse onus in that context? That would call upon the same principle that is so well articulated in this bill. It is logical and has safeguards, as you noted in response to Senator Milne's question.
In the case of forfeiture of cash at the border, I do not see the same kinds of safeguards and logical principles that you have applied in this bill. If we are to establish that kind of pattern in our legislation in respect of forfeiture of the proceeds of crime, then the system must be coherent in its various incarnations or contexts. I do not know if my question is pointed.
Mr. Cotler: It is so pointed, Senator Joyal, that I cannot answer. In other words, I am not able to comment on an existing case before the courts, as you can appreciate. However, I never like to leave it at that. Let me take it back to the more general principles. Since I made comment on that in light of some of those general principles, I would ask Mr. Cohen to respond. He is similarly unable to respond to the particular case, but he may respond to the particular issues that might arise from that Canada Border Services Agency seizure situation.
Mr. Cohen: I know this will not be completely satisfactory to you, senator, but to deal with coherence when one talks about a scheme of forfeiture, either under the Criminal Code or in other contexts, requires a comparison of equal things. In some cases, it becomes necessary to create a distinction. I believe that in this particular area it is not so much the fact that we are dealing with organized crime, but rather that we are dealing with the exposure of a particular individual to the loss of all of that individual's assets or property.
The reach of the scheme or the procedure can be, in some cases, devastating, and we set up the safeguards to try to make it possible to alleviate disproportionality or excess and give the individual an opportunity to respond and so forth.
The questions you raise in relation to regulation of the border have to be rationalized in their own context and, perhaps, against the ordinary scheme of forfeiture under the Criminal Code. It may be that you in your wisdom decide that there may be a need for adjustments, but that is the nature of the process in which we all engage. Perhaps even the case you mention, senator, may result, if a court is so minded, in other adjustments as well.
Senator Joyal: Could you check and tell me if the department has filed a defence in that case? I do not want you to pronounce upon the merit of the case, but do you have any information on whether your department has filed a defence? If so, there is no doubt that the principles of the proposed legislation would be argued in the defence of the department on the basis that you mentioned this morning.
Mr. Cotler: In this instance, you mentioned the Minister of Public Safety, and of course it is in that bailiwick. I may have shared this joke with you before, but it is not unrelated. When you teach law, you get all the cases, X v. the Attorney General Canada. I say that I now take these things personally. There are so many cases in both the civil and criminal realm. That is why there is the delegated authority that engages in these cases.
I will ask Mr. Scromeda to answer. I am sure this is an issue of fact on which we could probably advise you.
Mr. Scromeda: The answer is that I do not know. That case is outside our realm. I deal mostly with the criminal aspect, and we are not talking about a criminal case there. Certainly, if the AG Canada is defending it, then there are others, presumably, within the department who could respond. We cannot comment on the case. If a defence has been filed, it would normally be a matter of public record.
Senator Joyal: That is why I am asking.
Mr. Scromeda: I do not have it with me, nor do I know if one has been filed. If it has, it can be obtained.
Mr. Cotler: We will seek to provide you with the information on whether we have filed a defence after this hearing. I have only just heard of this case now.
Senator Joyal: I think Mr. Cohen has stated the principles well. If the department establishes in this bill a system whereby the principles are well stated and the parameters well defined, it seems to me that in another statute of the same Parliament that carries some important penalties and forfeiture, the same kind of precautionary approach would find its expression.
Mr. Cotler: I see your point. You have exactly touched on it. This bill, in the course of targeting criminal organizations and drug-related crimes and getting at the ill-gotten gains, is organized around the precautionary principle, which is why I went through all the elements that have to be satisfied for the purposes, post-conviction, of engaging in forfeiture. What are the various evidentiary thresholds that have to be satisfied and the like? That is really the precautionary principle, which includes Charter-related protections in particular.
The Chairman: Thank you for the information you have given us this morning, gentlemen. We have had a very good meeting with the three of you.
If you do not mind, we will proceed with the bill, honourable senators.
Mr. Cotler: Before we leave, Madam Chair, since this is my last appearance before this committee, and I am not sure in what configuration I will be returning post-election, I want to thank senators for their dedicated work.
[Translation]
I want to thank you for your commitment to the job. As I said, this is a case in process. I appreciate the significant contribution of the Senate to this undertaking.
[English]
You make the work of the Senate as a chamber of sober second thought not only exemplary, but valuable in every respect. We in the other chamber certainly appreciate it.
The Chairman: Thank you for your cooperation.
Honourable senators, is it agreed that the committee move to clause-by-clause consideration of Bill C-53?
Hon. Senators: Agreed.
The Chairman: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chairman: Shall clause 1 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 2 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 3 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 4 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 5 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 6 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 7 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 8 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 9 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 10 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 11 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 12 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 13 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 14 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 15 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall clause 16 carry?
Hon. Senators: Agreed.
The Chairman: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chairman: Carried. Is it agreed that this bill be adopted without amendment?
Hon. Senators: Agreed.
The Chairman: Agreed. Is it agreed that I report this bill without amendment to the Senate?
Hon. Senators: Agreed.
The Chairman: Thank you very much. This is an unusual way of dealing with our bills, and we do not do it often. I hope we will not have to do it again.
I thank all the members of the committee for your full cooperation. I also thank the people who did the translation, the stenographers, the personnel on the console, the pages, the people from the Library of Parliament for the great help they have been giving us, and Adam Thompson for always being there when we need him. Enjoy the time you will have ahead of you.
The committee adjourned.