The Canadian proceeds of crime provisions, Part XTJ.2 of the Criminal Code, are targeted at enterprises that are motivated by the desire to generate profit and accumulate wealth from criminal activity. The main purpose of Part XII.2 is to provide the police and prosecution with powerful new tools to attach the proceeds of crime, and the courts with the power to forfeit such proceeds. This thesis will examine how, in recognition of the procedural and substantive problems with this legislation and in contrast to American legislation, Parliament included numerous provisions to balance such extensive powers. The balancing mechanisms included a provision that allows reasonable legal fees to be paid out of seized or restrained property that is alleged to be proceeds and another that requires an in camera session to be held without the presence of the Attorney General, to determine the reasonableness of such fees. The Parliamentary record explicitly demonstrates that the balancing provisions were meant to ensure that the pre-trial restraint and potential forfeiture of property would withstand Charter challenges, especially with regard to an accused's rights to counsel, fair trial and full answer and defence. In this thesis I will analyze the complexities of proceeds litigation and demonstrate how this necessitates adequate legal representation to ensure that an accused's Charter rights are protected. This thesis explores in depth how Parliament recognized the need for balancing mechanisms that permit funds to be released for an accused to retain private counsel. However, these mechanisms have been significantly narrowed by subsequent judicial interpretation. A result of this line of authority is that defence work in the proceeds area has become very difficult. If reasonable legal fees are not taken from seized proceeds, provincial legal aid plans will have to provide for appropriate counsel. This may not be a realistic option given the funding of these plans and their stated objection to funding proceeds cases. Therefore, in this thesis I will argue that if private counsel must be retained the right to counsel could be effectively forfeited, unless a portion of the seized or restrained assets are released for reasonable legal fees. This thesis will attempt to provide a coherent basis for future interpretation of the Part XII.2 provisions that affect legal fees. The approach taken will incorporate the competing interests of accused persons and the State without undermining the objectives of the legislation. This thesis will focus on Canadian legislation and jurisprudence, but will also have a comparative component that examines how these issues have been dealt with in Australia, England and the United States.

The Canadian proceeds of crime provisions, Part XTJ.2 of the Criminal Code, are targeted at enterprises that are motivated by the desire to generate profit and accumulate wealth from criminal activity. The main purpose of Part XII.2 is to provide the police and prosecution with powerful new tools to attach the proceeds of crime, and the courts with the power to forfeit such proceeds. This thesis will examine how, in recognition of the procedural and substantive problems with this legislation and in contrast to American legislation, Parliament included numerous provisions to balance such extensive powers. The balancing mechanisms included a provision that allows reasonable legal fees to be paid out of seized or restrained property that is alleged to be proceeds and another that requires an in camera session to be held without the presence of the Attorney General, to determine the reasonableness of such fees. The Parliamentary record explicitly demonstrates that the balancing provisions were meant to ensure that the pre-trial restraint and potential forfeiture of property would withstand Charter challenges, especially with regard to an accused's rights to counsel, fair trial and full answer and defence. In this thesis I will analyze the complexities of proceeds litigation and demonstrate how this necessitates adequate legal representation to ensure that an accused's Charter rights are protected. This thesis explores in depth how Parliament recognized the need for balancing mechanisms that permit funds to be released for an accused to retain private counsel. However, these mechanisms have been significantly narrowed by subsequent judicial interpretation. A result of this line of authority is that defence work in the proceeds area has become very difficult. If reasonable legal fees are not taken from seized proceeds, provincial legal aid plans will have to provide for appropriate counsel. This may not be a realistic option given the funding of these plans and their stated objection to funding proceeds cases. Therefore, in this thesis I will argue that if private counsel must be retained the right to counsel could be effectively forfeited, unless a portion of the seized or restrained assets are released for reasonable legal fees. This thesis will attempt to provide a coherent basis for future interpretation of the Part XII.2 provisions that affect legal fees. The approach taken will incorporate the competing interests of accused persons and the State without undermining the objectives of the legislation. This thesis will focus on Canadian legislation and jurisprudence, but will also have a comparative component that examines how these issues have been dealt with in Australia, England and the United States. / Law, Peter A. Allard School of / Graduate

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. / Law, Peter A. Allard School of / Graduate