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(Prime Time Crime exclusive Mar. 6, 2013)
Keep the change
By Bob Cooper
The struggle to get effective Proceeds of Crime legislation enacted in this country has been a long and arduous one and we’re still a long way off. The powerful banking lobby and bar associations fought it tooth and nail and successive federal governments, both Liberal and Conservative, were lackluster at best and obstructive at worst but finally agreed to look at it.
Draft legislation was examined by a committee of lawyers, both Crown and defense, which made recommendations before the bill went to Parliament. When the Act was finally proclaimed in the late 80s, a group of us were sent to a presentation by the RCMP where its provisions and procedures were explained.
The Mountie putting on the presentation toed the company line and proclaimed it as being a big step forward for law enforcement but it quickly became clear that the defense bar had carried the day and we’d been given a law which, compared to similar laws the US had in place for years, was hopelessly watered down, more complicated than Quantum Physics and as useless as a Vision councilor. When they got to the part about an ex-parte conference between the accused, his lawyer, and the judge to determine how much seized money was to be set aside to pay the lawyer I went for lunch and never went back.
My next brush with proceeds legislation came years later when the government set up the Financial Transactions and Reports Analysis Center of Canada (FINTRAC) which for the first time required the reporting of all financial transactions involving $10,000.00 or more.
I recall saying to one of the FINTRAC presenters that I was surprised to see a law like this coming out of a Liberal government and was told quite candidly that they’d been dragged into it kicking and screaming by the US. Sure enough, once you got into the details, like the initial Proceeds legislation, FINTRAC was another toothless tiger designed to fool the public into thinking the government was really doing something. It was completely separate from law enforcement and the police would have to jump through some major hoops to get any information.
Unlike the US where anything seized is turned over to the agency that seized it, Ottawa made sure that the proceeds of any seizures here went into general revenue so the Chretien government (which could hold its own against most 3rd world countries and Illinois when it came to ethical lapses) could stuff it into brown envelopes and hand it to people in bars & restaurants in Montreal in what became known as the Adscam scandal.
Then I saw this article in the Vancouver Sun on March 4, 2013 YVR tops country in seized, undeclared cash and thought that perhaps this Harper Conservative ‘law and order’ government can actually do something right. I should have known better but I was only on the first paragraph.
It went on to report that Canada Border Services Agency agents intercepted $15M dollars from travelers who failed to declare it at Vancouver International Airport alone over a 14 month period with almost two-thirds of it arriving from China where corruption generates tons of cash that people want to hide overseas.
Obviously the CBSA people were on the ball and good for them. In addition to disrupting smuggling and money laundering, that kind of money could provide a lot of health care, medical research, build schools, or pay the suspicious expense claims of several Senators.
But, in typical fashion, the good work of the troops is undone by those above them because Ottawa defines ‘seizure’ a little differently than the rest of us and after levying administrative fines ranging from $250 to $2500 the ‘seized’ money was returned. Yes, just given back. $250? In Vancouver you’d be fined that much for having a smoke on the beach or putting the wrong items in your Recycle bin.
The largest single seizure involved $177,495.50 and that drew the fine of $2,500 which worked out to 1.4%. Not even what a bank would charge in service fees. You wouldn’t dare tip a waiter or a cabbie that amount. Laws are supposed to provide a strong deterrence not a minor inconvenience. These people must walk out of YVR, pockets full of loot, initially astonished and then start laughing their heads off. Not to mention calling their friends back home.
Apparently, undeclared money is only seized if it is suspected of being the proceeds of crime. Oh please, where do they think it comes from? I agree that in most cases the government should have proof of a crime before it seizes property but when it comes to untraceable items like large amounts of cash you need a ‘reverse-onus’ clause or you’re wasting your time. I can’t imagine how those CBSA agents must feel having to return that money.
At any US port of entry the first thing that happens is the money is gone. Every last cent of it with none set aside for lawyers. And that’s just the beginning because you’re also facing a fine of up to $500,000.00 and 10 years in prison and if you don’t have something to offer the US Attorney (like full cooperation & testifying against others) you’d better have brought your toothbrush & pyjamas.
What’s more, except for sentencing, the origin of the money is immaterial. The mere failure to declare it completes the offence and triggers those consequences because most of that money involves the drug trade or terrorist financing and, unlike us, they take that rather seriously. Perhaps that’s because they have a large monument in Lower Manhattan that attests to what happens when you don’t. And if you think those measures are harsh, try pulling the same stunt in China.
Bob Cooper is a retired Vancouver policeman. He walked a beat in Chinatown and later worked in the Asian Organized Crime Section and the Homicide Squad.