CRIMINAL CASH HAS BEGUILING CHARM

Defence Lawyers Argue Proposed Law Steps On Constitutional Rights

GREETED with accolades by the police and the province as a powerful new
tool with which to attack organized crime, Manitoba's proposed Civil
Remedies Against Organized Crime Act evokes scorn among the criminal
defence community for its truncation of constitutional rights.

But this new bill isn't really about organized crime. This bill, and the
legislative direction it anticipates, is all about money. Bad money. The
beguiling charm of criminal money. Money and the power it yields.

Money is a dominant theme in contemporary crime control. In the late 1990s,
international law sought to confront the billion-dollar trade in illegal
drugs with laws aimed at drug proceeds -- seizing the planes, the boats,
the bank accounts and the cash born of the drug trafficking. The new
federal anti-terrorism act targets terrorist financing, the financial
resources used to facilitate terrorist activity. United States President
George W. Bush approved a law that characterizes money laundering, the act
of concealing ill-gotten gains, as unpatriotic. In the space of a week
following the murder of a reporter investigating organized crime in
Ireland, that country drafted, proposed and passed proceeds of crime
legislation, a law that facilitates divesting criminals of their ill-gotten
gains. The United Kingdom, South Africa and Australia followed suit.
Alberta, Ontario and now Manitoba adopted laws aimed at criminal money, the
revenues derived from, or somehow connected to, criminal offences. All
these initiatives reflect a common mantra: that to control crime, we must
tackle the money.

Manitoba's legislation echoes this theme. Its aim is the business
connections, the use of businesses by criminal elements and the association
of lawful businesses with unlawful activities. Foreshadowed by the
government is a second legal device, one that enhances the ability of
police to seize the proceeds of criminal organizations. If Manitoba follows
Alberta, Ontario and many Western countries, enhancing that ability means
giving the police the right to seize and question title to assets -- to a
home, to a car, to a bank account -- and to forfeit that asset upon proof
that it is linked to criminal activity.

It is not the money aspect that triggers the defence lawyers' and the civil
libertarians' derision. It is the usurping of the rights applicable to a
criminal trial. Pursuant to Manitoba's latest legislative innovation, to
shut down a business or to revoke a licence, law enforcement need only
prove its case on a balance of probabilities. This fact, conspicuously
absent from the government's news release, means that the province need not
prove beyond a reasonable doubt that someone is connected to organized
crime, it must simply prove that it is more likely than not. On just over
50 per cent probability, there goes the business.

The balance of probabilities, the civil standard of proof, ordinarily
governs civil proceedings: if you sue your neighbour for consistently
blocking your driveway, you need to establish the facts underpinning your
case are more probable than not. The criminal standard, beyond a reasonable
doubt, applies to criminal proceedings as do an additional broad collection
of rights -- the right to legal counsel, for example. Under the new law,
despite the allegation of a connection to criminal groups, no one is
charged with an offence. And if you are not charged with a criminal
offence, then the procedural and substantive rights do not apply. What
rankles one community is the panacea of the other: it is significantly
easier for law enforcement to establish its case for the closing of
business on a balance of probabilities than in accordance with the criminal
standard of proof. Under the new strategy, the rules of the crime control
game shift radically in favour of the state. If Manitoba proceeds this way,
it will be joining a growing national and international community. This
community seeks, effectively, to sue people for criminal activity rather
than, or in addition to, prosecuting them for offences. The United States
Supreme Court endorsed this approach, concluding that as long as law
enforcement pursued money and property rather than people, few
constitutional rights applied. In scrutinizing Italian legislation aimed at
the Italian Mafia, the European Court of Human Rights found that taking
property on the strength of more probable than not was consistent with the
rights conferred by the European Convention on Human Rights and Fundamental
Freedoms. Moreover, it held that such a legislative course was necessary
given exigent social circumstances, including the murder of a judge, a
politician and, more recently, a law professor by individuals linked to
organized crime.

And if these laws and others of similar ilk do not pass the constitutional
test, Manitoba and Canada as a whole will encounter the familiar criticism
of the international community of being "soft on crime" and a haven for
evil-doers.

Missing from the debate, however, is evidence that pursuing the money
actually deters the underlying crime. In the early 1970s, the United States
lauded its money-centred strategy as a powerful new tool for confronting
the illegal drug trade. The persistence of America's drug problem suggests
that the technique hasn't yet succeeded.

M. Michelle Gallant, PhD, teaches law at the University of Manitoba.