CRITICS UNHAPPY 'PROCEEDS OF CRIME' FUND DEFENCE

Canada's two federal justice critics plan to take action on a law
that allows convicted drug dealers to pay their lawyers out of money
seized from them by police.

Marlene Jennings, Liberal MP for Notre-Dame-de-Grace-Lachine, said
she will speak to Parliament's justice committee about creating a
private member's bill when the House of Commons resumes April 16, or
lobby the attorney general to change the law.

"If there's a meeting of minds on the issue, we can figure out what
and how we can try to effect change on this," Jennings told the Whig-Standard.

NDP justice critic Joe Comartin said he plans to look into the issue
with the parliamentary public safety committee or talk to the
attorney general about tracking national data on the issue.

The pledges by both federal justice critics follow a Whig
investigation last month. It revealed that between 2001 and 2006,
Kingston Police were ordered to hand over to defence lawyers about
$163,000 of the approximately $285,000 they seized in drug investigations.

In many of those cases, the money was released after the accused
person pleaded guilty and by the consent of the Crown prosecutor,
under a provision of the Criminal Code.

Normally, a defendant can apply for access to his seized money
through section 462.34 of the Criminal Code to pay for living or
business expenses or for legal fees.

If the Crown prosecutor objects, the application goes before a
separate, Superior Court judge who must decide if the money belongs
to the defendant and determine that he doesn't have other assets.

However, if the Crown doesn't object, the matter can be approved by
the trial judge after the guilty plea.

This second, lesser-known process upsets law enforcement officials
because, in many cases, the money is earned through the selling of
drugs and comes from addicts who steal to feed their addictions.

Local and national police officials have also pointed out that
letting convicted drug dealers use money seized by police creates a
two-tier justice system. In it, drug dealers with no legal assets can
pay top dollar for a top-notch defence. Meanwhile, other people must
resort to legal aid or liquidating the assets they earned legally to
pay for their defence.

Over the last six years, defence lawyers have been successful in
retrieving money from 74 of 227 seizures made by Kingston Police and
have received anywhere from $48 to $13,000. The average allotment was
about $2,100.

A federal organization called the Seized Property Management
Directorate says in 2005-06 it returned $456,479 to defendants'
lawyers out of the $75 million in cash and assets it received that year.

However, the directorate does not track money given to lawyers by the
seizing police agency. Therefore, data at municipal police forces in
Kingston and other communities are not included in the national numbers.

The directorate's data also do not break down information about
guilty pleas or the criminal infractions for which charges are laid.
Statistics Canada doesn't track this type of data either.

Normally, if defence lawyers want to apply for the seized funds, they
make a separate application before a Superior Court judge.

No formal directive has been given to federal Crown prosecutors to
guide them on this issue.

Kingston's federal Crowns have been told verbally to fight
applications over $1,200, but data collected by the Whig through
Access to Information legislation reveal that 32 of the 74 successful
applications made in Kingston over the last six years were for more
than $1,200.

Money seized from convicted drug traffickers is distributed between
the federal government and the jurisdiction of the law enforcement
agency involved in the case.

The federal government's share goes to general revenues while
Ontario's money goes towards front-line policing, programs to help
victims of crime and to prosecute criminals.

Jennings said money seized that is obviously proceeds of crime should
go towards initiatives that help the public. However, she said she
can see that applications for smaller amounts might be allowed to
slide through in order to save taxpayers paying the costs of a
separate court hearing.

Nonetheless, she said, clear criteria must be established to ensure
formal hearings are held when larger amounts of money are requested.

"That money has to be put to public scrutiny ... It has to withstand
the light of day," she said.

A maximum accessible through Crown consent should also be
established, she said, adding that she will talk to her colleagues in
Parliament's justice committee when the House of Commons resumes April 16.

There are two ways the law could be changed, she said.

Jennings could introduce a private member's bill to amend the
Criminal Code provision that would limit the amount of money that
could be accessed through the informal process.

That route could take well over a year to reach the House of Commons, she said.

A faster route would be to convince the federal and provincial
attorney generals to agree to a policy directive.

"It would state that when an application is made to the Crown
prosecutor the prosecutor would only [have power to] decide [to
consent] if the amount was under a certain figure," Jennings said.

She said national data that tracks applications should be collected.

"Even if it's $1, I think there has to be a maximum to know how it's
working, how much money has been seized, the potential amount of
money that could have been seized and what the money has been used
for," she said.

Comartin, the NDP justice critic, said he plans to speak to
Statistics Canada and Parliament's public safety committee about
setting up a tracking system to find out how widespread the informal
seized-money process is.

"I am going to approach the minister of justice to get it raised at a
meeting in the summer of the attorney generals to see if they can at
least begin to properly tabulate what we're really dealing with - how
many cases and how much money," he said.

If legal aid now pays lawyers so poorly that many are seeking the
seized money instead of a legal aid certificate, Comartin suggested
the federal and the provincial governments, which fund legal aid,
should work towards a solution.

"We're going to have to work out some kind of sharing with the
province because a lot of these seizures are done through the RCMP
and our drug enforcement agencies," he said.

He suggested that money seized should go towards funding legal aid.

Federal Justice Minister Douglas Nicholson did not reply to a request
for an interview.