British Columbia

'An incredibly troubling notion': Drastic new tool to fight money laundering alarms civil rights advocates

B.C. has a $7.4-billion dirty money problem, and some experts are recommending a controversial solution: the ability for the government to seize property without finding a crime.

Expert panel recommends allowing government to confiscate property without linking it to crime

An expert panel has estimated that $7.4 billion in dirty money was laundered in B.C. last year, including $5.3 billion through the real estate market. (David Horemans/CBC) (Peter Scobie/CBC)

B.C. has a $7.4-billion problem — that's the bottom line of two bombshell reports on money laundering released this week.

The big question now is how the province plans to fight it.

Together, the reports make dozens of suggestions for tackling the issue, but civil liberties advocates were alarmed to see something called unexplained wealth orders (UWOs) among the recommendations.

These orders go a step beyond civil forfeiture and "allow confiscation without finding the crime," an expert panel led by criminal law expert Maureen Maloney wrote in its report, released Thursday.

"I think it's an incredibly troubling notion," said Micheal Vonn, policy director of the B.C. Civil Liberties Association.

With UWOs, anyone targeted by the government would be required to prove they bought their property using legitimate sources of income. The province wouldn't need to show any link to criminal activity.

Maloney suggested UWOs would be particularly helpful in cases where the cash might be connected to crimes committed outside of Canada.

For critics like Vonn, however, the proposal is fraught with serious issues, like doing away with the presumption of innocence and subverting the rights that shield Canadians from unreasonable search and seizure.

"What you have is a report that basically sets out to say, look, we just don't have the policing resources or expertise to get at this, so how do we get around the criminal law?" she said.

Another tool for confiscating property

The province already has multiple options for confiscating property linked to crime. B.C. Finance Minister Carole James told CBC News in an email that the government will consider adding UWOs to the list.

The Criminal Code has long allowed for forfeiture of property when someone has been convicted of a crime.

B.C. also has a civil forfeiture system, which means someone doesn't need to be convicted, charged or even arrested to lose their belongings to the government, as long as the province can prove on a balance of probabilities that there's a connection to crime.

If the value of the property is estimated at under $75,000, the strength of that evidence is only tested when someone files a dispute to a forfeiture notice.

A small number of countries are already using UWOs, including the U.K., Australia and Colombia. Italy was one of the first countries in the world to introduce a similar system in an attempt to curtail the power of the Mafia, but it was declared unconstitutional in 1994.

The U.K.'s law was introduced last year, drawing applause from the anti-corruption group Transparency International.

'A hallmark of tyrannical regimes'

In Australia, some critics have slammed UWO laws, which some states have had in place for nearly two decades.

In a letter to that country's justice department, Civil Liberties Australia director Rajan Venkataraman wrote: "The reversal of the presumption of innocence has been a hallmark of tyrannical regimes throughout history."

That's not the only issue.

B.C. Attorney General David Eby and B.C. Minister of Finance Carole James have said they're looking at all of the reports' recommendations for fighting money laundering. (Michael Mcarthur/CBC)

A 2010 critique of Australia's laws also asked whether allowing UWOs "distorts the investigatory incentives of police," encouraging law enforcement to move away from the more difficult task of finding evidence that proves a crime beyond a reasonable doubt.

That's already a concern in B.C. when it comes to the use of civil forfeiture.

Former Mountie Peter German raised it in his report this week on money laundering. He writes that "police and prosecutors in B.C. have essentially abandoned laundering and proceeds of crime charges," choosing instead to go through civil forfeiture.

Police risk losing the expertise to fight money laundering through the criminal system, German says, and that's a problem because the criminal system is what allows police "to follow the money trail from or to a criminal organization and dismantle it."

For her part, Vonn also worries about the unintended consequences of going down this road.

She pointed out that while the intention of a UWO scheme might be to tackle the scourge of money laundering, even the most well-intentioned laws can end up serving other purposes.

"We see it time and time again," she said. "To say that we would introduce this kind of tool and not expect it to produce abuses would be phenomenally naive."

About the Author

Bethany Lindsay

Journalist

Bethany Lindsay has more than a decade of experience in B.C. journalism, with a focus on the courts, health and social justice issues. She has also reported on human rights and crimes against humanity in Cambodia. Questions or news tips? Get in touch at bethany.lindsay@cbc.ca or on Twitter through @bethanylindsay.

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