WHEN CRIME DOES PAY

Cash seized at drug busts often goes to the accused person's lawyer.
Is it ethical?

After watching a house and its occupants for weeks, Kingston Police
drug investigators and a SWAT team break down the door and storm
inside. They find cocaine, marijuana, scales, small baggies and
several thousand dollars in cash.

A man is arrested and pleads guilty to trafficking and drug
possession. He is sent to prison.

The money police find at drug busts is typically given to the federal
government, which shares it with the province to distribute to a
myriad of justice-related causes, such as drug prosecution services
and victim assistance.

However, between 2001 and 2006, Kingston Police handed over about
$163,000 of the approximately $285,000 they seized in drug
investigations to defence lawyers, according to police records
obtained through the Freedom of Information Act.

"It's morally upsetting because we know that what is basically blood
money is going to funding their defence," said Kingston Police Staff
Sgt. Chris Scott, former head of the force's crime prevention unit.

Money seized during a drug investigation is held by a police force
before it's passed on to the federal Seized Property Management
Directorate, which manages the funds under Canada's proceeds of crime
legislation.

The directorate reported that it managed $75 million of seized assets
and cash in the fiscal year 2005-06. Of that amount, $456,479 was
returned to defendants' lawyers for legal fees.

The province can receive 10, 50 or 90 per cent of the seized money
upon conviction, depending on the contribution to the investigation
and prosecution by law-enforcement agencies under its jurisdiction.

Ontario's Ministry of the Attorney General spends its share on
programs to help victims, for prosecutions of profit-motivated crime,
to train prosecutors, to purchase technology that supports these
prosecutions, such as computers, and to pay for the high costs
associated with forensic accounting services.

The Ministry of Community Safety and Correctional Services spends its
share on equipment and programs for front-line policing organizations.

Meanwhile, by taking advantage of a section 462.34 of the Canadian
Criminal Code, lawyers defending drug dealers can apply to obtain
money seized to pay for their client's living or business expenses,
or for their legal fees.

Defence lawyers in this city have succeeded in retrieving money from
74 of 227 seizures made by Kingston Police over the last six years
and have received anywhere from $48 to $13,000 in payments per case.

Forty-three of those 74 applications, or 58 per cent, were made over
the last two years.

The Criminal Code provision that alllows lawyers to get this money
exasperates drug and organized crime investigators who argue
convicted criminals shouldn't get back money earned from crime.

Gordon Schumacher, chairman of the Canadian Association of Chiefs of
Police organized crime committee, said the forfeiture issue has
troubled Canada's police chiefs for a long time.

"We're seeing more and more case law coming out where judges are
almost routinely doing this and clearly it is painful to watch," said
Schumacher, who's also superintendent in charge of organized crime at
the Winnipeg Police Service.

The police chiefs believe the money should be used to undo some of
the damage it has done, instead of helping convicted criminals get out of jail.

Allowing drug dealers to use this money for their own defence creates
a two-tier justice system, in which drug dealers with no legal assets
can pay top dollar for a top-notch defence while other people must
resort to legal aid or liquidating the assets they earned legally to
pay for their defence, Scott said.

"Basically, these individuals are out nothing," he said.

Alan Gold, a Toronto lawyer and author who specializes in criminal
litigation, has fought and won a number of applications to retrieve
funds seized from his clients.

As recently as June, he succeeded in accessing $109,000 for legal
fees that police had taken from one of his clients.

Gold said the public's interest is served when an accused is able to
defend his case to the best of his ability.

"Money spent on a defence lawyer has a constitutional and public
interest dimension that makes it different than money spent on a car
or a hairdresser," said Gold, former president of the Canadian
Criminal Lawyers' Association.

"If the accused is found not guilty the police have no right to
complain about how the accused spent his money. And, if the accused
is convicted, money spent on a lawyer is an insurance policy that the
verdict is a true one and the public will not, five or 10 years
later, be paying millions of dollars to a wrongfully convicted person."

There are two ways an accused person and their lawyer can access
funds seized by police.

Any time after the money is seized, the defendant can apply to use
the money to pay for living costs, business costs and legal fees.

If the Crown objects, an application is made before a Superior Court
judge. If the judge feels the person doesn't have any other assets
and that the money belongs to the defendant, an agreement may be reached.

If the Crown prosecutor doesn't object to the application, the matter
can be determined before the same trial judge who is hearing the
criminal matter and after the guilty plea.

The decision of how much money is needed to top up legal fees is done
behind closed doors after a verdict is reached.

The judge considers how much the lawyer would receive from legal aid,
an Ontario agency that provides lawyers for those without enough
money to hire their own. However, the judge can decide to award more
money than they would get from this public agency.

Here's a typical example of how one person's lawyer has retrieved
seized money in the past:

In May 2005, a 46-year-old Kingston man was charged with trafficking
methamphetamines and possession of less than 30 grams of marijuana.

He pleaded guilty to both the following October and was sentenced to
a day in jail and had to forfeit everything seized. As part of the
deal, the judge granted an application that gave $6,000 seized to his
Kingston lawyer.

Gold said, in his experience, it's uncommon for defence lawyers to go
this route.

"Usually, even if they [the Crown] consent, it is on a superior court
application," he said.

Kingston criminal lawyer Clyde Smith admits that applying for the
money at the end of the judicial process could be construed as a bit
of a gamble because it's possible a Crown could object and a judge
could refuse the application.

However, Smith said he can't recall it ever happening in his 20 or so
years as a criminal lawyer.

Nonetheless, it's this second, less formal process that most bothers
the police - the decision comes after the pleas so there's little
doubt the money seized was earned by selling drugs.

It would be hard to come to any other conclusion about a large wad of
money seized beside piles of narcotics during a drug bust from a
person who has no job and claims to have no other assets, said
Kingston Police Insp. Brian Cookman.

"What would a logical thinking person conclude - particularly in the
case of a drug trafficker who, at the time of that arrest, had
several baggies of cocaine and a debt list in his pocket?" Cookman said.

Smith said police can't know that all money is dirty.

"I've got lots of clients who say, 'They took $600 or $700 and that
was my rent money,'" Smith said. "Nobody's going to believe that
because they're charged with possession for the purpose of drugs. But
sometimes it's true."

Smith does a portion of his criminal defence work through legal aid,
but there are some lawyers, such as Ottawa criminal defence lawyer
Gary Chayko, who won't take on legal aid cases because they don't pay enough.

According to Legal Aid Ontario, 4,000 Ontario lawyers accept legal
aid certificates. About 35 of them service the Kingston area.

In Ontario, the top legal aid rate for a lawyer with more than 10
years of experience is about $93 an hour.

It may sound like a lot of money to some people, but Smith said it
doesn't go far when the costs of running an office and paying a
secretary are factored.

A brand new criminal lawyer, not working for Legal Aid, makes
somewhere between $125 an hour and $150 while a seasoned one might
earn up to $300.

Smith also points out that it's next to impossible to serve a client
within the 13 to 15 hours provided under the average legal aid certificate.

If the amount seized is more than the amount legal aid is likely to
provide, Smith said he pursues the larger amount.

"These are business decisions," he said. "If there are monies that
are seized and if the Canadian Criminal Code provides for us to get
those legal fees and if the monies are going to be equal to or more
than what legal aid would pay, then obviously, we're going to go that route."

At the same time, said Smith: "There are also a lot of things that
get done in this community for people who don't qualify for legal aid
and don't have the resources to pay them."

Margaret Beare, a criminology professor at York University's Osgoode
Hall Law School, said it's a "bizarre" process that allows the
proceeds of crime to go toward legal fees.

"If the argument is that legal aid isn't able to give adequate
defence in those situations, then I would argue that it's legal aid
that needs to be changed," said Beare.

She argues that money obviously earned illegally should go toward
balancing the harm done by the offence, such as helping victims of
crime and prosecuting criminals.

Giving it to the convicted criminal is "self-defeating" and
perpetuates the existence of a two-tier justice system where
criminals with wads of cash can buy a better lawyer than those with less money.

"They're arguing that everyone's entitled to a lawyer and I'm not
refuting that at all. It's just that there's nothing written in stone
that says everyone is entitled to Eddie Greenspan at Eddie's amount
of money," Beare said.

Beare said she's bothered by a system in which such decisions are
decided informally and where there are no strict guidelines for how
much a lawyer can get paid out of a pool of seized money.

"It sort of speaks of the invisible, informal chumminess of the whole
thing," she said.

Beare also questions the claim that allowing defence lawyers to
access seized money saves taxpayer money.

"Excuse me, that depends on how much a legal aid charge would be
versus how much the lawyers are able to take off the top of this
forfeited money," she said.

Simon William, a prosecutor and spokesman for the federal Justice
Department, said lawyers are supposed to apply to legal aid before
applying for seized money.

"If you look at section 462.34 [of the criminal code], it does say
the judge has to be satisfied there are no other assets or means, and
other means include legal aid," William said. "So you should go to
legal aid first."

Smith points out, however, that an accused criminal has the right to
do whatever they want. They don't have to apply for legal aid and a
lawyer doesn't have to take a legal aid certificate.

Taking the seized money is best for everyone, especially since most
drug trafficking cases in Kingston deal with small amounts of cash
seized from small, street-level dealers, he said.

"Surely it makes more sense for that money, whether it's ill-gotten
gains or not, to be applied to legal fees rather than having the
taxpayer shoulder the burden because that's what legal aid is, it's
tax dollars," he said.

It also saves taxpayers money because they don't have to pay for the
costs of a separate hearing in Superior Court, he said.

Janet Leiper, Legal Aid Ontario's chairwoman, released a frank
bulletin last year stating that legal aid work is becoming
increasingly unaffordable for lawyers. It pays hourly rates that are
well below market rates, having been increased only twice in 20 years
at what amounts to about 0.5 per cent per year.

"Reduced numbers of legal aid service providers translate into higher
numbers of legal aid clients who are unable to find a lawyer to take
their case," she wrote. "Many legal aid certificates are going
unacknowledged, meaning a legal aid certificate was issued to a
client, but no lawyer ever took the case."

Although legal aid does not ask lawyers to apply for seized money, it
doesn't discourage them either.

"If the money is seized as proceeds of crime we will ask that the
client sign an agreement which means, if the funds are returned to
them, we get to claim the cost of their legal fees before anything is
returned to them," said Legal Aid Ontario spokesman Kristian Justensen.

"We normally don't do that unless the funds seized are in excess of
$500," Justensen said.

At the same time, Justensen said, money seized has no bearing on a
person's legal aid application.

Smith said it's not uncommon for him to receive a legal aid
certificate that specifically authorizes him to apply to have the
seized funds returned.

"It's legal aid effectively doing the same thing that we would do
privately," he said. "A legal aid certificate ... will sometimes have
some instructions on it that will tell you what it's good for and it
might have some conditions. One of them might be that, if money is
seized or if money is deposited for bail reasons, they will sometimes
ask for it to be secured for legal aid to offset the cost of their
certificate."

Bruce MacNaughton, one of Kingston's two part-time federal Crowns who
prosecute drug offences, said he almost always fights applications.

"If they seize drugs and money and it seems manifest that the cash is
proceeds of crime, all the more reason to stick with the formal
procedure," said MacNaughton. "But that's tempered by a little bit of
reasonableness. If it's $1,200, there's not really much point on
insisting on the formal procedure."

The Public Prosecution Service has no written guidelines on the
issue, but MacNaughton has received verbal guidance from his bosses
that he need not fight applications for cash under $1,200, if the
money is not obviously proceeds of crime.

"But, if if's $4,000, I'm not going to do it by consent because
that's clearly proceeds of crime and should be forfeited to Her
Majesty," he said.

According to court documents found through a Freedom of Information
request to Kingston Police, MacNaughton has agreed to applications
for sums between $580 and $880.

There are times when those convicted of crimes get to keep the money
found when an arrest is made.

For example, in 2003 police seized about $13,400 from a woman when
they charged her with possession of hydromorphone and possession of
property over $5,000.

The second charge was dropped and she pleaded guilty to a lesser
charge of narcotics possession and was sentenced to three months
probation and a $250 fine.

The money couldn't be definitively linked to the drugs and the woman
convinced the court that she had won a large amount of money at the
casino, so the money was returned to her and her lawyer. His portion
was used to pay legal aid.

Dave Crowe, the city's other part-time Crown, has agreed to
applications as low as $48 and as high as $6,500, the court documents show.

Crowe said he follows the same guidelines as MacNaughton, but said
there are times when he won't fight an application for larger amounts.

"You may not be able to prove that all the monies seized were
proceeds of crime," he said. "There may be information provided to me
which shows other sources directly, that they would not be proceeds
[of crime]."

However, with more than half of the money seized over the last six
years being diverted back to criminals and their lawyers, that answer
may not be enough for law enforcement officials - at least not for
Kingston Police.

"It does concern an investigator when they know in their heart that
the money they seized was acquired by an illegal activity and,
instead of being forfeited to the Crown and assigned to victims of
crime, it's being used in that form," said Insp. Cookman.

Money Turned Over to Kingston Defence Lawyers Since 2001

2001 - four successful applications totalling $5,820

2002 - two successful applications totalling $4,698.57

2003 - 18 successful applications totalling $42,207

2004 - seven successful applications totalling $11,005

2005 - 22 successful applications totalling $60,853

2006 - 21 successful applications totalling $38,545