CRIME DOESN'T PAY UNDER NEW B.C. BILL

Province Would Have The Power To Seize And Sell Assets Without Proof

The provincial government is poised to deliver a powerful new weapon for
police and prosecutors to wield in their battle against organized crime.

British Columbia plans to follow the lead of Ontario by introducing civil
proceeds of crime legislation in the coming months, said Solicitor General
Rich Coleman.

The legislation will enable authorities to seize and sell cash and property
believed to be related to crime without the burden of having to prove a
criminal conviction.

Instead, under the planned legislation, it would be up to the alleged
offender to prove in a civil proceeding that his assets were legitimately
obtained. If he couldn't do that, a judge would sign an order allowing the
province to take over the property and dispose of it.

"We're working on that legislation now," Coleman said in an interview at
the legislature. "We're obviously working through the legal and charter
issues as we go forward. We'll either (introduce) it this fall or by spring."

Here is a hypothetical example of how the law would work:

A suspected B.C. member of an outlaw organization lives in a $500,000
suburban home, has a $50,000 luxury vehicle in the driveway and $180,000 in
a money market account. Under this legislation, the suspect would be forced
to prove in a civil proceeding that these assets were legitimate. If he
couldn't prove that, police would receive an order from a civil judge
allowing them to seize and sell the assets, with proceeds going toward
victims of crime and crime-fighting in B.C.

At present, that same suspect would have to be convicted of a crime before
a criminal court could order that assets related to the crime be
permanently forfeited into a federal fund through proceeds of crime
statutes that have been in the Canadian Criminal Code since 1993.

Police in B.C. believe such civil legislation would help them to make a
much larger dent in organized crime.

'One of the things that we've found is the proceeds of crime legislation
federally that's tied to a criminal conviction is very difficult and
onerous for people to proceed through, particularly law enforcement,"
Coleman said.

"So we're saying: Look, is there another formula? Is there another way that
we can deal with the proceeds of crime?"

"The intention of this is: If you have a piece of property and you can't
prove to us that it was bought by legal money, or that you actually paid
the income tax on the money you bought it with, it's illegal."

But critics worry such legislation would go too far. Simon Fraser
University criminologist Neil Boyd said the burden of proof in a civil case
is a "pretty flimsy threshold" on which to decide to snatch up property and
essentially brand somebody who hasn't ever been convicted as a criminal.

"It's pretty dangerous," Boyd said. "We have a criminal law system that is
premised on the idea that you should be found guilty beyond a reasonable
doubt . . . The difficulty I have with using the civil standard to take
away property that is alleged to be proceeds of crime is that you're
dealing, in probabilistic terms, with 50.1 per cent vs. 49.9 per cent --
that's what the burden of proof is in civil cases."

Ontario is the only Canadian province to have such legislation in effect.
Its Remedies for Organized Crime and Other Unlawful Activities Act was
proclaimed in April 2002.

The move has already paid dividends for the Ontario government and law
enforcement with more than 50 civil forfeitures during the first two years.
That province has realized millions of dollars through forfeiture
proceedings, and Ontario Attorney General Michael Bryant expects the haul
to grow significantly as the program "ramps up."

"In short order, we should be able to recover in the tens of millions of
dollars," Bryant said in an interview from Toronto.

"In the first year (of the legislation) it was more like $1 million
(forfeited civilly) but it will grow necessarily as police officers and
prosecutors across the province participate in it. And we undertake
outreach all the time to try and increase that number."

Under the Ontario program, Crown prosecutors and provincial government
civil lawyers typically examine a case to see if it is a candidate for the
civil proceeds of crime legislation. Such civil proceedings are separate
from any criminal case, Bryant said.

In some instances, because evidence must be preserved, a civil case must
wait until the criminal case is completed.

"In some cases, either the criminal prosecution is abandoned or, once it's
completed, the civil motion is brought afterward. And sometimes it's
brought at the same time," Bryant said. "It's sort of all over the map."

The first priority for money recovered through the Ontario civil
legislation is compensation for victims. But that also depends upon the
victim's needs, Bryant said, adding that victims often can't be tracked
down. And in drug cases, the most common targets of the civil proceeds of
crime legislation, there are typically no identifiable victims.

"If there's any money left over after (victim compensation), it goes to
covering the cost of the department that is pursuing the civil forfeiture,
and then the remaining money goes toward law enforcement (in Ontario,)"
Bryant said.

"We're turning the told adage: 'Crime doesn't pay' on its head," Bryant
said. "This is becoming an increasingly effective way to recover ill-gotten
gains and put it in the hands of victims and police, where it belongs."

A recent case handled by the York Regional Police shows the civil tactic's
value. In that instance, a youth was found in a house along with what
police described as a "significant" quantity of marijuana. The youth was
convicted on the drug charge but the judge in the criminal case refused to
order forfeiture of $9,000 in cash also found in the home because he said
prosecutors could not prove it belonged to the youth. Using the civil
legislation, however, police subsequently obtained a forfeiture order for
not only the cash but also the equity in the house in which the drugs were
found. That amounted to a total forfeiture of $70,000 under the civil law
whereas none would have been forthcoming under the Criminal Code.

In another case, police credited Ontario's civil proceeds of crime law with
helping to crack a $3.5-million cargo theft ring at Toronto's Pearson
International Airport.

Manitoba legislators have followed Ontario's lead, although that province's
Criminal Property Forfeiture Act has yet to be proclaimed and put into use.

"It is tough legislation designed to make the climate in Manitoba hostile
to organized crime," Manitoba Attorney General Gord Mackintosh promised
when he introduced the bill last November.

That's precisely the effect B.C.'s solicitor general wants to have in this
province. Coleman has been outspoken about the importance of battling
organized crime in the province and told the legislature in March that
criminal organizations working in B.C. are "multi-million-dollar operations
worldwide that are operating cross jurisdictions and around the world, and
we need to be able to push back at them in any way we can on behalf of our
communities."

Not surprisingly, police are lining up behind the province's burly top cop
on this initiative.

RCMP Insp. George Pemberton, who heads the 50-member proceeds of crime unit
at E Division in Vancouver, said the RCMP fully supports such legislation
in B.C.

"Obviously a civil lawsuit hangs on the balance of probabilities, rather
than beyond reasonable doubt (as in a criminal case)," Pemberton said. "So
I suspect that this legislation would be used to pursue the cases where
there's good evidence but not maybe good enough for a criminal conviction."

Pemberton said police can always use more and better tools when fighting
organized crime, which is what such civil legislation would represent.

"It's long been recognized by the police community and by criminologists
that until we take the money out of crime, it will always be there, that it
will overpower the potential penalties," he said. "I don't think we will
ever have enough tools."

Victoria Police Chief Paul Battershill agrees that such legislation would
be effective. Even the mere threat of forfeiture with the lesser civil
burden of proof required could be a valuable weapon in reducing crime, he said.

"There are vast sums of money that are being realized by organized crime
and, in many cases, it's very difficult to recover them," Battershill said.
"So any tool that would allow that recovery would be helpful.

"This could assist with (police) being able to bring more cases forward in
a civil context than in a criminal context."

But it's that easing of the burden of proof that also raises concerns about
the proposed civil legislation. The B.C. Civil Liberties Association has
yet to offer an official position because it hasn't seen literature on the
subject.

But offering his personal opinion, civil liberties association executive
director Murray Mollard wonders if such a law would be constitutionally valid.

"The idea of a reverse onus of such a significant impact on a person's
personal circumstances sounds like the kind of thing that would be ripe for
a legal challenge," he said.

SFU's Boyd said mistakes are made in criminal cases, such as murder, where
the burden of proof is "beyond a reasonable doubt."

"If we make mistakes when we have a tougher burden of proof, what's the
logic of proceeding (with civil legislation) simply because the bad guys
are difficult to catch?" Boyd said. "There's too much of a downside to that."

Pemberton acknowledges that there are "huge complications" with such
legislation. "As with everything, the devil's in the details."

But one constitutional challenge against the Ontario law has already failed
and that province's attorney general seems confident that it is
bulletproof. "We may get more (challenges) in the future but so far that's
been it," said Bryant, who believes Ontario's law has been "absolutely
successful."

It's important to note that property isn't forfeited on the mere whim of
police, he added. Legislation in both Ontario and Manitoba is designed to
keep innocent people from losing their assets to overzealous police and
civil lawyers.

"It's approved by a judge, so it's not like we just seize it," Bryant said.
"We have to go before a court. The test is a civil test, a balance of
probabilities, and if we establish under the legislation that it amounts to
a proceed of crime on the balance of probabilities, then it's seized."

The legislation will become more effective as the Ontario system gets more
familiar with it, he predicted.

"It takes awhile to ramp up, simply because it relies upon police officers
and Crown prosecutors to be aware of exactly how it works. The lawyers in
our government that bring these matters before a court, we have to be
notified by the police that the potential proceed of crime is there before
we can do that and then we obviously have to make sure that we're not doing
anything to compromise the criminal investigation."

Besides considering this dramatic new legislation, Coleman said he has also
had recent discussions with federal Revenue Minister John McCallum about
the potential for Revenue Canada to go after proceeds of crime from the
"income tax side."

"If somebody is collecting illegal money, not paying the taxes on it, and
then acquiring an asset with that illegal money, that's tantamount to
income tax fraud," Coleman said.

"So frankly why shouldn't we be looking at it as a way to go after the
proceeds of crime?"