Many changes where brought to the criminal code of Canada in the last 14 years !
The hot topic of the moment is the anti-Prostitution law !
BILL C-53: (PROCEEDS OF CRIME)
Bill C-53, An Act to amend the Criminal Code (proceeds of crime) 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 . 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.
The bill also amends the Criminal Code(2) 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. .
B. Proceeds of Crime Provisions in Canada
1. The Criminal Code
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.
The scope of the proceeds of crime provisions was broadened and that came into force in 2002.
2. The Proceeds of Crime Program
The objectives of the POC Program are to: remove the incentive from committing crime; identify, assess, restrain, and forfeit illicit and unreported wealth accumulated through criminal activities; prosecute offenders; restrain and seize assets pending judicial forfeiture; and identify for the courts assets that could not be seized in order to justify the imposition of other judicial penalties, such as fines.
3. Money Laundering
Canada’s primary instrument for fighting money laundering is It requires financial institutions and other intermediaries to meet certain standards relating to customer identification, due diligence, and record-keeping and to report suspicious and other financial transactions relevant to the identification of money laundering. In addition, the Act requires the reporting of the importation and exportation of cash or monetary instruments. Under the Act, the penalties for failing to report suspicious transactions include fines of up to $2 million and/or imprisonment for up to five years.
Canada’s financial intelligence unit, , was created in July 2000 It has been operational since October 2001. Its primary functions are to receive reports under the Proceeds of Crime (Money Laundering) Act from various reporting agencies (including banks, insurance companies, money services businesses, casinos, accountants and real estate agents), to analyze those reports for information relevant to money laundering .
DESCRIPTION AND ANALYSIS
Bill C-53 consists of 16 clauses.
A. Clause 1: Definitions
Subsection 462.3(1) of the Criminal Code currently defines “designated offence,” in part, as “an indictable offence.” Clause 1 amends that definition by replacing the term “an indictable offence” with the words “any offence that may be prosecuted as an indictable offence.” This wording makes it clear that any hybrid offence – i.e., one that may be prosecuted either as an indictable offence or as a summary conviction offence – will be considered a “designated offence” for the purpose of the proceeds of crime part of the Criminal Code. This will serve to eliminate any doubt that only purely indictable offences, or only those that are prosecuted as indictable offences, can be considered to be “designated offences.”
Clause 1(2) reiterates that the Attorney General of Canada has all the powers of the Attorney General of any province in relation to proceeds of crime if the alleged offence is related to an alleged contravention of an Act of Parliament other than the Criminal Code. An addition to subsection 462.3(3) clarifies that the Attorney General of Canada may conduct proceedings in respect of an offence referred to in section 354 (possession of property obtained by crime) or section 462.31 (laundering the proceeds of crime) of the Criminal Code if the alleged offence arises out of conduct that is in relation to an alleged contravention of an Act of Parliament other than the Criminal Code. Thus, for example, if money obtained in breach of the Controlled Drugs and Substances Act is being laundered, the Attorney General of Canada may conduct the forfeiture proceedings. This capacity will be helpful when the alleged offences span provincial or even international borders.
B. Clause 2: Concordance of Laundering of Proceeds of Crime Sections
Clause 2 amends the French version of section 462.31 so that it accords with the broad language used in the English version. In English, the section refers to an offence being committed, inter alia, when a person “disposes of or otherwise deals with, in any manner and by any means, any property” knowing that the property was obtained as a result of the commission in Canada of a designated offence. The current French version uses more restricted terms, such as “aliène” and “en transfère la possession.” The amendment broadens the French version by using the words “en dispose” and “prend part à toute autre forme d’opération à leur égard.” The new wording means that any dealings with the proceeds of crime, not merely selling or transferring possession, may lead to prosecution under section 462.31.
C. Clauses 3, 4, and 5: Special Search Warrants, Restraint and Restitution Orders
The current section 462.32 of the Criminal Code provides for special search warrants with respect to property that falls into the category of proceeds of crime and that is subject to forfeiture under Part XII.2. Section 462.33 provides for the issuance of restraint orders with respect to property that falls into the definition of “proceeds of crime” and is subject to forfeiture under Part XII.2. Section 462.34 provides for an application to a judge for an order returning property seized under section 462.32, revoking a restraint order made under section 462.33, or permitting the examination of seized or restrained property on such terms as the judge may require. Section 462.341 provides that the review applications in section 462.34 apply to a person who has an interest in money or bank-notes that are seized under the Criminal Code or the Controlled Drugs and Substances Act and in respect of which proceedings may be taken for a forfeiture of that property.
Clauses 3, 4, and 5 of Bill C-53 amend sections 462.32, 462.33, and 462.341 to add a reference to new subsection 462.37(2.01). This new subsection, to be added by clause 6 of the bill, will provide for an order of forfeiture in particular circumstances. Details of the changes made in clause 6 are set out below.
D. Clause 6: Order of Forfeiture in Particular Circumstances
Section 462.37 of the Criminal Code deals with the forfeiture of proceeds of crime after an accused person has been convicted or discharged of a designated offence. Subsection (1) provides for an order for the forfeiture of property by the judge imposing sentence when a person is found guilty of a designated offence. If the judge is satisfied, on a balance of probabilities, that any property is the proceeds of crime and that the designated offence was committed in relation to that property, the court shall order that the property be forfeited to Her Majesty. Subsection (2) provides that where, in the proceedings described in subsection (1), the connection between the offence and the property is not established, but the judge is satisfied beyond a reasonable doubt that the property is proceeds of crime, the judge may order its forfeiture. Subsection (3) provides that, where an order should be made under subsection (1), but the property cannot be found after the exercise of due diligence, or the property has been transferred to a third party, or is outside Canada, or has been diminished in value or commingled, the court may, instead of ordering forfeiture, impose a fine of equal value to such property on the offender. Subsection (4) provides a sliding scale for imprisonment in lieu of payment of the fine.
Clause 6 adds subsections 2.01 to 2.07 to section 462.37. Subsection 2.01 provides for orders of forfeiture when a court imposes sentence on an offender convicted of an offence described in subsection 2.02. Subsection 2.02 describes these offences as a criminal organization offence punishable by five years or more of imprisonment, and an offence under section 5, 6 or 7 of the Controlled Drugs and Substances Act – or a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to an offence, under those sections – prosecuted by indictment. Section 5 of the Controlled Drugs and Substances Act makes it an offence to traffic in certain substances; section 6 makes it an offence to import and export certain substances; and section 7 makes it an offence to produce certain substances.
When sentencing an offender convicted of an offence described in subsection 2.02, a court will be obliged to order that any property of the offender that is identified by the Attorney General in its application for forfeiture be forfeited to Her Majesty. Before making such an order, the court must be satisfied, on a balance of probabilities, that:
Within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced, the offender engaged in a pattern of criminal activity for the purpose of directly or indirectly receiving a material benefit, including a financial benefit; or
The income of the offender from sources unrelated to designated offences cannot reasonably account for the value of all the property of the offender.
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.
Subsections 2.04 and 2.05 provide details on how a court may determine that an offender has engaged in a pattern of criminal activity. A court must consider the circumstances of the offence for which the offender is being sentenced, as well as any other factor that the court considers relevant. A court, however, shall not determine that an offender has engaged in a pattern of criminal activity unless it is satisfied, on a balance of probabilities, that the offender committed, within 10 years before the proceedings were commenced in respect of the offence for which the offender is being sentenced:
Acts or omissions – other than an act or omission that constitutes the offence for which the offender is being sentenced – that constitute at least two serious offences or one criminal organization offence;
Acts or omissions that are offences in the place where they were committed and, if committed in Canada, would constitute at least two serious offences or one criminal organization offence; or
An act or omission described in the first category that constitutes a serious offence and an act or omission described in the second category that, if committed in Canada, would constitute a serious offence.
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.
Subsection 2.07 allows a court to decline to make an order of forfeiture against any property that would otherwise be subject to forfeiture under subsection 2.01, if it considers it in the interests of justice. In such a case, the court is to give reasons for its decision.
E. Clause 9: Relief from Forfeiture
Section 462.42 of the Criminal Code provides for written applications by innocent third parties for relief from forfeiture under Part XII.2 within 30 days after such forfeiture is ordered. Clause 9 amends this section so that relief from forfeiture can be granted for any property seized under the new subsection 462.37(2.01). In addition, the language of this section is changed to clarify that a relief application may not be brought by a person who is charged with, or was convicted of, a designated offence that resulted in the forfeiture. The current wording simply refers to a person charged with, or convicted of, a designated offence that was committed in relation to the property forfeited
Are Escort Agencies owner immune to this? as every one must support the accounting Principal of net owning .
In theory Revenue Quebec and Canada can produce a PST and GST on a arbitrary cost of operation and/or cost living !!!
Was it down before yes there is many precedents !
All laws in Canada constitute hole a they affect all each other