CRIME CAN'T PAY, JUDGE RULES

Making Drug Dealer Forfeit Profits Not Unconstitutional, Glithero
Says

A Kitchener lawyer has lost his bid to have Canada's proceeds-of-crime
legislation declared unconstitutional.

In a ruling released this week, Superior Court Justice Steve Glithero
of Kitchener concluded there is nothing unconstitutional in the law
requiring drug dealers to forfeit the profits they've made from crime
or pay fines if those profits have disappeared.

"In my opinion, reasonable, informed and fair-minded Canadians would
not be offended by a cocaine trafficker being deprived through
forfeiture of the cocaine, or the money obtained in payment for the
cocaine,'' Justice Stephen Glithero said in his ruling released this
week.

The constitutional challenge by lawyer Craig Parry is believed to be
the first to the proceeds-of-crime law, which is aimed at taking the
profit out of certain crimes.

Under the federal law, police trace and seize criminal assets in cases
involving drugs, smuggling, fraud, gambling and terrorism. The
proceeds are forfeited to government through the courts.

Glithero's ruling is a message to "people who think there's big money
to be made,'' said David Rowcliffe, senior counsel in the Department
of Justice's integrated proceeds of crime unit in London.

"You're going to lose the money if you do get caught. And if you can't
pay it back, you're going to go to jail for even longer."

After the ruling, Tuan Van Le, 44, of Kitchener was ordered to forfeit
$119,700 to the government. That was the amount of money handed over
by an undercover police officer to Le during six drug transactions
between August 2002 and March 2003.

Le was given five years to pay the $119,700, an amount defence lawyer
Parry had likened to a mortgage.

"There can be no doubt that the purchase monies paid for the cocaine .
. . are the proceeds of the crime of trafficking,'' Glithero said.

In his bid to overturn the legislation, Parry argued the state didn't
take into account an offender's level of involvement in a crime. The
law could catch an offender who had no control over where the proceeds
of crime went, he said.

In addition, he argued the law lets the state seek multiple forfeiture
orders for a number of offenders within a chain of illegal activity.
Five co-accused could each be made to forfeit the same proceeds of
crime, or a fine in lieu of the proceeds, Parry said. There is no
mechanism for calculating the net benefit to a particular accused.

But Glithero agreed with the prosecution that fines in lieu of
forfeiture are meant to be a punishment.

"This forfeiture legislation is not in the nature of restitution in
favour of the state,'' the judge said. "It was intended to be a form
of punishment'' meant to convey the message that crime does not pay.

Unless the defence can present evidence that minimizes a particular
offender's role in a crime, it's not unfair to expect that offender to
pay a fine in the amount of the value of the property that has
disappeared, the judge said.

To expect a court to determine the actual proceeds of crime received
by an offender would be unworkable in most drug cases, the judge said.
Other drug dealers or those higher up in the chain are often unknown
to police.

"Such, of course, is part of the evil stemming from cocaine
trafficking, which lies at the root of the state's attempts to reduce
or eliminate such activity by means of significant penalties, which
include forfeiture.''

The Supreme Court of Canada has already ruled that someone's inability
to pay can't be taken into account when the proceeds of crime have
disappeared, Glithero said.

"Such would simply encourage criminals to dispose of the purchase
money paid quickly, or would encourage criminal organizations to
utilize people of limited circumstances to commit the offence,'' he
said.

Parry argued that Le was being deprived of his right to life, liberty
and security of the person because he could be jailed for failing to
pay the fine. But Glithero concluded the law permits "loss of liberty
if achieved in accordance with the principles of fundamental justice.''

Le was sentenced yesterday to 7 1/2 years in prison. He only has nine
months left to serve, however, because he was given more than the
usual double credit for the three years and two months he's already
spent in jail.

Parry said yesterday he hasn't decided whether to appeal the
ruling.

If Le doesn't make reasonable efforts to pay the fine within five
years, the Crown can get back to court to ask why and request he be
jailed.