Standing committee on Justice and Social Policy

1st session, 37th Parliament | 1re session, 37e législature


Tuesday 20 February 2001
Remedies for Organized Crime and Other Unlawful Activities Act, 2000,
Bill 155, Mr Flaherty / Loi de 2000 sur les recours pour crime organisé
et autres activités illégales, projet de loi 155, M. Flaherty


Chair / Présidente
Ms Marilyn Mushinski (Scarborough Centre / -Centre PC)

Vice-Chair / Vice-Président
Mr Carl DeFaria (Mississauga East / -Est PC)

Mr Marcel Beaubien (Lambton-Kent-Middlesex PC)
Mr Michael Bryant (St Paul's L)
Mr Carl DeFaria (Mississauga East / -Est PC)
Mrs Brenda Elliott (Guelph-Wellington PC)
Mr Garry J. Guzzo (Ottawa West-Nepean / Ottawa-Ouest-Nepean PC)
Mr Peter Kormos (Niagara Centre / -Centre ND)
Mrs Lyn McLeod (Thunder Bay-Atikokan L)
Ms Marilyn Mushinski (Scarborough Centre / -Centre PC)

Substitutions / Membres remplaçants
Mr Garfield Dunlop (Simcoe North / -Nord PC)
Mr Raminder Gill (Bramalea-Gore-Malton-Springdale PC)
Mr John Hastings (Etobicoke North / -Nord PC)
Mr David Tilson (Dufferin-Peel-Wellington-Grey PC)

Clerk / Greffier
Mr Tom Prins

Staff / Personnel
Mr Avrum Fenson, research officer, Research and Information Services

The committee met at 1005 in room 151.

Consideration of Bill 155, An Act to provide civil remedies for organized crime and other unlawful activities / Projet de loi 155, Loi prévoyant des recours civils pour crime organisé et autres activités illégales.


PRIOR WITNESSES' TESTIMONY DELETED--CAN BE READ ON ONTARIO GOVERNMENT SITE, more particularly here:  http://www.ontla.on.ca/hansard/37_parl/session1/Committees/justice/J038.htm

The Chair: I understand Ms Selick is here. If you'd like to come forward. Sorry, we're a little late. One of our deputants isn't here yet, so we moved forward with the last speaker.

Ms Karen Selick: Good afternoon. My name is Karen Selick. I'm a lawyer in private practice in Belleville, Ontario. I also write a regular monthly column for Canadian Lawyer magazine, and I contribute occasionally, not regularly but from time to time, to opinion pages of the Globe and Mail, the National Post and various other newspapers. I'm here today at my own expense, not representing anybody else, just on my own time, because I think Ontario would be making an enormous and irrevocable mistake if it enacted Bill 155. I'm here to ask you, in fact to beg you, not to pass this bill and not to pass any variation of it.

I have my remarks prepared in written form and I will give them to Mr Prins to distribute afterwards, but I'm just going to speak here directly to you at this point.

I'm not here to tell you that this bill could be tweaked in any way or amended in any way that would make it OK. That's not my position at all. I think it's plainly and simply wrong from start to finish, and it simply must not proceed. I don't think there's anything you could do, any minor amendment, major amendments, that would make this OK.

I've actually written two pieces about this in the newspaper. One of them was in the National Post that appeared in December and one was in the Globe and Mail that appeared in January. I won't have time in the 10 minutes I've got today to go into everything I said in those articles. Some of you may have read them, but if you would like to read them again, I've posted them on my Web site. It's a very easy URL to remember. It's just my name, www.karenselick.com. I've highlighted that in all the copies of my remarks today that are going to be distributed to you. I've put a special link on my home page to those articles, so if you would like to read further beyond what I can tell you today, please go to my Web site.

The most important thing I want to stress to you today is this: in my view, Bill 155 is one further step down the already slippery slope that Canada is taking towards becoming a police state. This bill will give the government a stake--a very big stake--in the continued existence of organized crime. Money is a big motivator, whether for individuals or for governments. This bill promises to pour money into government coffers. In effect, it will make the government a senior, silent partner to organized crime. Once government can seize the proceeds of crime, or assets suspected of being used in a crime, it will become addicted to that source of funds, just like any junkie. Then we'll never be able to repeal this law, no matter how much evil we see it doing, no matter how many police officers or judges it corrupts and no matter how many innocent people lose their houses, their money or even their lives.

You probably know that asset forfeiture has become big business in the United States since about 1984 when they beefed up their racketeering laws. Hundreds of asset seizure laws have been passed since then and literally thousands of property seizures take place every week--yes, every week. Many of these seizures are based on the flimsiest of suspicions, and in a huge percentage of cases the people whose money or other assets get seized don't even try to get their property back. They can't afford a lawyer or they can't afford to take time off work to go to court, so they simply throw in the towel. Every time this happens, the cop who made the bust gets some brownie points and he becomes emboldened to do it again.

Here are some of the grounds on which American citizens have had their property seized. One really common situation has been when they've been stopped on the highway for minor traffic violations or even for routine alcohol or seatbelt checks. Just imagine here in Ontario police stopping people under the RIDE program. They have a cute little spaniel with them, trained to sniff for drugs. Did you know that in the US and Britain, they've done studies that have shown that between 80% and 96% of all the paper currency in circulation has traces of cocaine on it? I've never seen any statistics for Canada, but I have no reason to believe it would be any different. In the US, 15% of the paper currency leaving the mint, leaving the US treasury department, straight off the printing presses, has traces of cocaine on it. So just turn those sniffer dogs lose at any RIDE checkpoint and there's a good chance they'll smell drugs in just about any car they care to target.

I wrote a letter about this bill to Mr Flaherty a few months ago and he wrote back to me on January 15, stating that the bill contains "an important number of safeguards." Foremost among these safeguards, he said, is "the requirement of court approval at every step." With all due respect to Mr Flaherty, I can only consider that answer to be a joke. Who says judges are any more impervious to the lure of money than police officers? The money doesn't have to be making a beeline directly into the judges' own pockets in order for judges to be tempted by this. Money going into the court system will mean they can hire more staff, have their offices redecorated, get upgraded notebook computers, get new courtrooms built, get salary increases or longer vacations. There are a lot of reasons why judges will be just as anxious as police officers to get their hands on the proceeds of organized crime.

But Mr Flaherty told me there's another reason I shouldn't worry about this bill. It's because, and I'm quoting exactly from his letter, "More importantly, the proceeds of forfeiture are first made available to victims." I have two problems with this answer. First of all, it isn't even true. The bill does not make proceeds available first to victims. There's a list in subsection 6(3) of the bill of five different uses to which this money can be put. While compensation to victims appears at the top of the list, this use is not given priority over the other uses; they all have equal status. Two of the five uses refer to giving money to the province of Ontario, a municipality or other public body. Then the fifth item lists some other uses that are going to be prescribed by regulation. I can hardly wait to see what those might be.

But even if we supposed that the money were going to go first to victims of organized crime, as Mr Flaherty said, unfortunately this still does not put my mind at ease because the truth is that most of the activities of organized crime either have no victims at all or have no victims who would be willing to step up to claim their so-called compensation. The largest single activity of organized crime today is drug dealing. Who are the victims here? Do we really expect someone to come cap in hand to the Ontario government and claim compensation from this fund because the marijuana he bought turned out to be oregano or, because he paid for a shipment of cocaine and it never got delivered, it had been seized by the cops?

What are the other major activities of organized crime? Smuggling liquor is a another big one. Who's the victim who's going to come and claim compensation here? Some guy who got cirrhosis of the liver by drinking too much untaxed booze?

Smuggling illegal immigrants is another big racket of organized crime. Who's the victim who's going to come and claim compensation here? Some Chinese refugee whose snakehead promised to get him to the US, but abandoned him here in Ontario?

Ladies and gentlemen, ask yourselves this question: what is it that the average Ontario taxpayer really wants the police force in his neighbourhood to do for the taxpayers? The answer is really quite simple. Taxpayers want to sleep soundly at night, knowing their houses aren't going to be burglarized. They want to be able to go out during the day to work, knowing they don't have to install an alarm system just to protect their possessions. They want to be able to walk down the street without getting mugged or raped. If someone commits a fraud using their bank account or credit card, they want the police to get their money back for them.

These are the things taxpayers are willing to pay taxes for, but these are precisely the things the police tell us over and over again they can't do for us. How many of you know someone whose house has been broken into? I'll bet everyone in the room does. What did the police say when they were called: "Sorry, there's not much we can do about it." A friend of mine recently had $16,000 stolen from his line of credit. It was probably an inside job involving someone from the bank, but what did the police say when he reported it? "Sorry, but for individual frauds we won't look at anything under $250,000 and, for businesses, the limit is $1 million."

The average taxpayer really doesn't give a hoot that someone's importing marijuana into the country. A huge percentage of average taxpayers have smoked pot themselves. Probably half the people in this room have tried it. But we can only afford a limited number of police officers and each of them can work only so many hours a day. We have to make choices about how best to deploy those police man-hours. The average citizen, I'm sure, would say, "Get the burglars and muggers off the street and forget about the guys importing drugs and alcohol."

It's bad enough that our police already demonstrate the opposite priority, but if Bill 155 comes into effect, they will have an additional incentive to divert their resources to crimes that taxpayers consider low priority, because the cops and the police departments and the courts are going to be among the people on the list who get to drink from the trough, once all those tasty crime proceeds start flowing in.

I wish I had more time to tell you what's wrong with this bill. I don't know how much of my 10 minutes I've used already, but I must be pretty close to the limit.

The Chair: It's getting there.

Ms Selick: Yes. I urge you once again to read the articles on my Web site. I will distribute my handout here. I urge you, please, don't proceed with this bill. Abandon this one. This is one US import we can do without.

The Chair: Thank you, Ms Selick.

Mr Kormos: On a point of order, Madam Chair.

The Chair: If you're going to mention you'd like some time for questions--

Mr Kormos: No, no.

The Chair: --because I'm going to allow that.

Mr Kormos: OK. Then I better ask for some time.

The Chair: Mr Cairnduff, I gather, is not here, and we do have a cancellation. I think there's some interest in asking questions. I'll allow maybe five or 10 minutes for questions, Mr Bryant.

Mr Bryant: Thank you for your presentation. I think it speaks for itself, and I appreciate that you put on the record that interested Ontarians can go on to your Web site and read further. Thank you for coming and thank you for making this contribution. I understand you're a citizen just coming here to speak your mind.

You raise a point--and perhaps Mr Tilson in his questions can respond--about who the victims are here who are in fact going to be compensated. Do I take it that it's your view that this is a façade, that there are no victims of organized crime who could get compensation from this?

Ms Selick: There might be the occasional one. I'm sure organized crime is into other things. They are into credit card frauds, for example, but I think you're going to have a very difficult time identifying the individuals who have suffered from this. Most people who are victims of a credit card fraud won't really be victims, because their credit cards are insured to a certain level. It will really be the insurers or the banks that end up having to pick up some of that tab that perhaps will have some claim on this compensation fund.

I just think this idea of compensating those victims in comparison to the other bad things that can happen with this bill, it's just not worth taking those risks because the other risks of this bill are so enormous.

Generally speaking, most of what organized crime does is what we call victimless crime. It's stuff that has been made a crime only because someone has chosen to take a vice and interpret it as a crime. People are there voluntarily engaging in these activities, voluntarily on both sides of the transaction.

Mr Kormos: I'm sympathetic to some of your arguments. I don't know. Again, we're going to be hearing from policing, but when you talk about if organized crime indeed is controlling things like women being transported so that they can be housed as prostitutes or working in strip clubs, that's where it's just sort of a little grey area.

But the concern expressed by Alan Borovoy earlier today was the standard of proof, that this uses--and it was spoken to in the presentation prior to yours--the civil standard on the balance of probabilities whereas a conviction for a criminal offence--thank goodness, because even with that high standard of proof beyond a reasonable doubt we've witnessed a tragic number of unjust convictions. Thank goodness we don't have the death penalty. You really haven't spoken about that part. Do you want to?

Ms Selick: I did mention those. In the first article that was in the National Post I mentioned that. I think you're really going to have problems with the constitutionality of this. In pith and substance this is criminal law. The statements that were made by Mr Flaherty and Mr Tsubouchi months and months ago, before this bill even came in, made it quite clear that this is directed toward criminal law, and I think you're going to have a big problem with that. Once it is criminal law, then yes, you have a problem with the fact that it's this lower standard of proof.

Mr John Hastings (Etobicoke North): Ms Selick, thank you for coming here today. I have read some of your articles in the Post. I would describe you as a champion of property rights in Canada. Would that be a correct depiction?

Ms Selick: I would be pleased to be described that way. Thank you.

Mr Hastings: Could you supply to committee clerk specific examples, if you have them, at a later date--I don't really want you to do an inordinate amount of work since you are a barrister who works on her own, and you've got to make a dollar like everybody else--in the United States under RICO or under similar state statutes that tried to get the forfeiture of property connected to criminal activities and any articles you've come across regarding the corruption of the policing function?

Ms Selick: I did mention some of that.

Mr Hastings: Yes, you did.

Ms Selick: In the first article I wrote about this in the National Post, I mentioned that. There's a very famous one in the US. It was a series of articles published in a newspaper that was then called the Pittsburgh Press. The name of that has now changed. I think these articles appeared in about 1993 or 1994, maybe even earlier, but a long investigative series about people whose property was being taken with very little grounds, people who couldn't afford to get it back.

In the National Post article, I think I mentioned the case of a man in California. He was quite a wealthy man, a multi-millionaire, whose ranch was broken into. It was quite clear they were deliberately hoping they could find drugs there so that they could seize this property. As it turned out, they killed him in the raid and there never were any drugs on the property. There have been people killed for this sort of thing. There have been all kinds of people who have lost property, lost houses because their child made a phone call, was dealing dope or something. The abuses have been horrendous.

In the US, they recently passed some amending legislation--I think it was in about March or April of last year--that was designed to deal with some of these abuses, but from what I've read, it wasn't very effective in dealing with the abuses--

Mr Hastings: By the US Congress?

Ms Selick: Yes. It got watered down along the way. That's why I'm concerned about the addictive nature of this type of legislation for the Legislature. Once they had this passed, then the battle to get it changed was horrendous. All these police associations came forward and said, "It's a wonderful thing, and you shouldn't change it." The amending legislation, the restricting legislation, was watered down severely, so that I don't think it did much good.

Mr Hastings: Do you have any examples, Ms Selick, of states, governments, the US government, the FBI or whatever agency you can think of in the literature or where I could come across some, where the people who had their property seized under these civil measures sued back, sued the state government, the state police or whatever agency--

Ms Selick: I'm sure there must have been litigation of that kind. I don't have any specific knowledge of any.

Mr Hastings: Do you expect that would be one of the other unintended consequences coming from this stuff?

Ms Selick: I'm quite confident that here in Ontario it will be, just because of the constitutional issue. People aren't going to take this lying down when there's that big, glaring gap there that they can take a run at it with. I'm sure here it will be a problem.

The Chair: Mr Kormos.

Mr Kormos: I just wondered, Madam Chair, whether as a matter of course the participants from out of town are advised of their right to claim for mileage etc.

The Chair: Yes, they are.

Mr Kormos: OK, fine.

Ms Selick: I wasn't advised of that.

Mr Kormos: Oh, well, I'm glad I raised it.

Mr Hastings: Yes, for mileage.

Mr Kormos: Before you leave, why don't you just speak to the clerk?

Ms Selick: Thank you.

The Chair: Thank you very much for coming in.

- end -

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