FEDS MAY SHIFT ONUS

Plan to make defendents prove belongings aren't crime proceeds bothers lawyers

Ottawa may force criminals to prove their belongings weren't obtained
through crime.

Sources tell The Sun federal plans are being investigated to help
prosecutors make more cases against members of organized crime.

But defence lawyers are balking at the proceeds of crime legislation
they've heard may be coming down the pike, which would put the onus on the
accused to prove their house, car or boat weren't obtained through crime in
order to prevent them from being seized.

"My guess is it's already a done deal, but I'm about to submit something in
writing (to Ottawa) against it," said Mike Clancy, president of the
Criminal Trial Lawyers Association.

"Presuming guilt isn't our way. We aren't like the States.

"The new legislation (will allow police) to go beyond what they find
executing a search warrant - look into bank accounts - and make the accused
justify themselves, which is offensive."

The plan goes entirely too far, said Stephen Jenuth, spokesman for the
Alberta Civil Liberties Association.

"The onus should remain with the Crown to make their case," Jenuth said.

Ottawa may have to change some rules to get more cases to stick, said Chris
Levy, a criminal law professor at the University of Calgary.

"Sometimes things are hard to prove and the evidence doesn't stand, but I
wouldn't call the (current) legislation a flop," Levy said.

"You can run some pretty big risks losing big-ticket items."

Recently a former member of the Rebel motorcycle gang being tried with the
proceeds of crime legislation had his seized $300,000 house in Riverbend
and his Lamborghini sports car returned because prosecutors couldn't prove
they were bought with crime cash.

Property is only seized if the Crown can prove "on the balance of
probability" that dirty money was used to purchase the items, said Paul
Saint-Denis, senior counsel of criminal law with Justice Canada, who didn't
confirm or deny the potential legislation.

Prosecutors didn't want to comment until they have seen the new legislation.

Saint-Denis did however say there would be new rules to battle Canada's
huge money-laundering problem, estimated at between $5 billion and $17
billion a year.

The money-laundering prevention bill will require lawyers, accountants and
financial institutions to report any "suspicious financial transactions" in
excess of $10,000.

"This is a good plan because these people who launder funds are a lot
smarter than the police and many of the lawyers they come in contact with,"
said John Bascom, a criminal defence lawyer who has written reports on the
subject for the Law Society of Canada.