Slowly but Surely

Just caught a little ditty in a CTV article regarding the impending Canadian election. Briefly mentioned are four bills that were "fast tracked" by the parties but that may not necessarily pass. It's one of these that caught my interest. One of the four bills is "legislation to reverse the onus of proof for people charged with drug offences who have previously been convicted of gang-related crimes" which is followed by other concerns such as workers pensions. It seems to me that if the burden of proof is being reversed in particular legislation for any area of our Criminal Justice System, that this might be cause for some to raise an eyebrow.

Guilty until one can establish her/his innocence, is what this essentially means.

After some looking I found the proposed legislation, Bill C-53. Here is the opening paragraph which explains briefly (or not so briefly) what's going on.

Bill C-53, An Act to amend the Criminal Code (proceeds of crime) and the Controlled Drugs and Substances Act and to make consequential amendments to another Act, was introduced in the House of Commons on 30 May 2005. Its intention is to provide a reverse onus of proof in proceeds of crime applications involving offenders who have been convicted of a criminal organization offence or certain offences under the Controlled Drugs and Substances Act. The bill provides that a court shall make an order of forfeiture against any property of an offender if the court is satisfied that the offender has engaged in a pattern of criminal activity or has an income unrelated to crime that cannot reasonably account for all of the offender’s property. A court may not, however, make an order of forfeiture against a property that the offender has shown, on a balance of probabilities, not to be proceeds of crime. A court may also decline to make an order of forfeiture against a property if the court considers it to be in the interests of justice.

The bill also amends the Criminal Code to clarify the authority of the Attorney General of Canada in regard to proceeds of crime, and to clarify the definition “designated offence” in regard to offences that may be prosecuted by indictment or on summary conviction. It also amends the Controlled Drugs and Substances Act to clarify the authority of a justice under that Act to issue warrants in respect of investigations of drug-related money laundering and the possession of property obtained by drug-related crime.

Here is what is stated of the current legislation:

"The current proceeds of crime provisions in the Criminal Code, found in Part XII.2, sections 462.3 to 462.5, have been in place since 1989. They provide that, in order to obtain an order of forfeiture, the Crown must prove, on a balance of probabilities, that property is the proceeds of crime and that the property is connected to the offence for which the person was convicted. If no connection between the offence(s) and the property is established, the court may, nevertheless, order the forfeiture of the property if it is satisfied beyond a reasonable doubt that the property is the proceeds of crime.

Though many disclamers and requirements are listed in how this would be applied, the area that causes me the most worry is as follows:

"Thus, subsection 2.01 will provide for a presumption that the property of an offender convicted of certain criminal organization and drug offences is to be forfeited to the Crown if the property cannot be accounted for from legitimate sources or the offender has engaged in a pattern of criminal activity. Subsection 2.03, however, provides an offender with the possibility of establishing, on a balance of probabilities, that his or her property is not the proceeds of crime. If this can be done, no order of forfeiture under subsection 2.01 is to be made." (Highlighting is mine)

What constitutes a 'pattern of criminal activity'? We can only assume judicial interpretation will sort that one out.

I guess we should all rest assured, after all Subsection 2.03 will allow us to present "on a balance of probabilities" that our property is NOT the proceeds of crime. IF one can prove this, sorry - present a 'balance of probabilities' (we don't want to use the word 'prove' and there is an important distinction) then you will not be penalized. Or if the court decides taking the property away would not be in the interest of 'justice' you won't lose it either. The burden of 'proof' then rests with the 'offender' - not the State. This would seem to contradict the innocent until 'proven' guilty assumption. A basic tenant and perhaps the very foundation of our Criminal Justice System.

I know that most people will hardly rally to the cause of those effected by this change. It only applies to those who have been convicted of "certain criminal organization and drug offenses" - with whom most of us do not identify. But keep in mind that phrase - no one left to speak for me - while I continue.

The next question: What constitutes a 'criminal organization'? And, what is a 'drug offense' according to this legislation?

"Subsection 467.1(1) of the Criminal Code defines the terms “serious offence” and “criminal organization.” A “serious offence” means an indictable offence under the Criminal Code or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more. A “criminal organization” means a group, however organized, that is composed of three or more persons in or outside Canada that has as one of its main purposes or activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the receipt of a material benefit by the group. A “criminal organization” does not include a group of persons that forms randomly for the immediate commission of a single offence.

A “criminal organization offence” is defined in section 2 of the Criminal Code to mean an offence under section 467.11, 467.12 or 467.13 (participating in the activities of a criminal organization, committing offences for it or instructing the commission of an offence for a criminal organization), or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization."

I think I get the 'criminal organization' definition - but what happened to the 'drug offense' category?

Let's play detective!

I'm assuming (and I certainly do NOT have a law degree) that for this legislation to be applied to a 'drug offense' it would have to be:

1. An 'inditable offense' comitted under the Controlled Drugs and Substances Act (or a hybrid offense which has be prosecuted as an indictable offense - this is what was clarified under the 'designated offense' category)
And
2. A 'serious offence' - that which carries a penalty of five or more years.

So then from my understanding of the Controlled Drugs and Substances Act all of the following crimes could potentially lead to the burden of proof (sorry balance of probabilities) being placed on the defendent - not the prosecution.

Under Part 1 Offenses and Punishment of the Act no person shall seek or obtain substances contained in Schedule I, II, III or IV.

The only posession crime which this new legislation would apply to is:
Every person who contravenes subsection (2)

(a) is guilty of an indictable offence and liable

(i) to imprisonment for a term not exceeding seven years, where the subject-matter of the offence is a substance included in Schedule I,

What is a Schedule I substance? See this link for the list. (FYI - Schedule II, Schedule III, Shedule IV)

The only trafficking law this new legislation would apply to is here:

3) Every person who contravenes subsection (1) or (2) (a) subject to subsection (4), where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life; (b) where the subject-matter of the offence is a substance included in Schedule III, (i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years,

For importing or exporting the new legislation would likely be applicable here:

6. (1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

(2) Except as authorized under the regulations, no person shall possess a substance included in Schedule I, II, III, IV, V or VI for the purpose of exporting it from Canada.

3) Every person who contravenes subsection (1) or (2)

(a) where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;

(b) where the subject-matter of the offence is a substance included in Schedule III or VI,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years,

And last but not least - production as this legislation might apply:

7. (1) Except as authorized under the regulations, no person shall produce a substance included in Schedule I, II, III or IV.

(2) Every person who contravenes subsection (1)

(a) where the subject-matter of the offence is a substance included in Schedule I or II, other than cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for life;

(b) where the subject-matter of the offence is cannabis (marihuana), is guilty of an indictable offence and liable to imprisonment for a term not exceeding seven years;

(c) where the subject-matter of the offence is a substance included in Schedule III,

(i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years


So that's what I've had time to find and try to interpret this morning. It's complex and certainly a lot more work to figure out than it should be if citizens are responsible for knowing and understanding the law. Perhaps that's why we haven't seen much media on the topic...

But as demonstrated above, this new legislation would certainly have a more wide spread effect than the phrase "legislation to reverse the onus of proof for people charged with drug offences who have previously been convicted of gang-related crimes" as reported, which it turns out is completely misleading. This isn't accurately characterized by the legislative proposal in stating "certain offences under the Controlled Drugs and Substances Act" either.

I'm not trying to argue that some of these actions shouldn't be penalized - but I'm worried about the steady erosion of the burden of proof. Yes it's complex and confusing at this point but when we start making exceptions to the rules of justice - what happens to justice? It is the principle of the arugment that matters most.

A few years back when the Youth Criminal Justice Act replaced the Young Offenders Act a similar provision was instated. That amendment required the burden of proof be placed on the defendent to establish that the youth should not be moved to adult court for what they termed 'serious crimes'. Rather than the prosecution establishing that the youth should be tried as an adult in those situations. (Again, what exactly is a 'serious crime', besides something that sounds good politically?)

Slowly but surely your fundamental judicial right to be considered innocent until PROVEN guilty are being eroded...

I'm not sure there is much else to say, except that knowledge is power and hopefully now you'll have more knowledge of the law and how it can apply to you.