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UBC Theses and Dissertations

Confiscating the proceeds of crime : the amendments to Canada's Criminal Code, their force and effect German, Peter Maurice

Abstract

This thesis examines the amendments to Canada's Criminal Code which target the proceeds of crime by, inter alia, criminalizing money laundering and enabling the confiscation of assets. The amendments represent the central thrust of Canada's contribution in a global effort to stem the traffic in illicit drugs, Canada belatedly following the lead of the United States, Great Britain and Australia. In the thesis, I argue that the amendments go much further than earlier crime control initiatives and represent a paradigmatic shift from the traditional, single transaction, individual-oriented structure of criminal law to one which is both property-driven and premised upon multiple-transactions perpetrated by criminal organizations. The amendments focus on the proceeds of crime, as opposed to the offender, individual or corporate, their avowed purpose being to neutralize criminal organizations rather than punish offenders. The effectiveness of the amendments is inexorably tied to the speed by which criminal proceeds can be seized or restrained and thus they operate prospectively, in anticipation of a later conviction. In order to accomplish their objectives, the amendments draw upon concepts previously the preserve of the private law of contract and tort, introducing some which are foreign to the classic norms and traditions of criminal law and sentencing, both substantive and procedural. The thesis examines the amendments from both a textual and a Charter perspective. In so doing, considerable emphasis is accorded the presumption of innocence, a strong legitimating force in criminal law. Integral to the presumption is the Crown's burden of proof - beyond a reasonable doubt. The legislation's adoption of the civil balance of probabilities test is, therefore, considered its weakest link. Other aspects of the legislation give rise to interpretive and Charter challenges. The thesis also discusses the need for tracing mechanisms, mandatory financial transaction reporting, the development of a strike force approach to implementation and a sharing of proceeds by law enforcement agencies. Further, the thesis decries any use of the legislation as a tool for plea bargaining or to target petty criminals.

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