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.
| Identifer | oai:union.ndltd.org:LACETR/oai:collectionscanada.gc.ca:BVAU.2429/3775 |
| Date | January 1900 |
| Creators | Rose, Gregory John |
| Source Sets | Library and Archives Canada ETDs Repository / Centre d'archives des thèses électroniques de Bibliothèque et Archives Canada |
| Language | English |
| Detected Language | English |
| Type | Electronic Thesis or Dissertation |
| Relation | UBC Retrospective Theses Digitization Project [http://www.library.ubc.ca/archives/retro_theses/] |
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