Canada Criminal Code and Proceeds of Crime PDF

SECTION 2 - ORP is described in two places, section 2 of the criminal code and section 2 of the CDSA Difference between the two definitions is the criminal code definition is any property linked to an indictable offence whereas CDSA must be linked to a designated drug offence SECTION 462.3 CC - - -...

SECTION 2 - ORP is described in two places, section 2 of the criminal code and section 2 of the CDSA Difference between the two definitions is the criminal code definition is any property linked to an indictable offence whereas CDSA must be linked to a designated drug offence SECTION 462.3 CC - - - - Possession of Proceeds : no person shall possess any property or any proceeds of any property knowing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of the commission in canada of an offence under this part; Proceeds of crime : means any property,benefit, or advantage within or outside canada, obtained or derived directly or indirectly as a result of a) the commission in canada of a designated offence or b) an act or omission anywhere that, if had occurred in canada, would have constituted a designated offence. Designated offence means - a) any offence that may be prosecuted as an indictable offence under this or any other Act of Parliament, other than an indictable offence prescribed by regulation or, b) a conspiracy or an attempt to commit, being an accessory, after the fact in relation to , or any counselling in relation, to an offence referred to in paragraph (a) Penalty - dual procedure offence - Indictable, value of property proceeds exceeds $1000. Up to 10 years - indictable, value does not exceed $1000 up to 2 years summary conviction- value is less than $1000 fine up to $2000 & 6 months or both FINTRAC - - - - FINTRAC- Financial Transactions and report analysis centre of canada Primarily deals with proceeds of crime and terrorist financing act Director reports to the federal minister of finance or his / her designate within that department Mandate: facilitate the detection, prevention and deterrence of money laundering and the financing of terrorist activities, while ensuring the protection of person information under its control This includes the laundering of proceeds derived from drug trafficking Compliance - Ensure reporting entities comply with their legal obligations - receive financial transaction reporting entities Intelligence - analyse information and disclose resulting financial intelligence to partners - develop strategic level products on ML/TF trends and patterns as well as assessments on groups countries and gaps ect Reporting entities/sectors : financial entities, casinos, money service businesses,crown agents that sell money orders ( canada post ) , security dealers, real estate developers , life insurance companies, dealers in precious metals, accounting firms How fintrac works - receives multiple reports from agencies previously listed as well as other law enforcements services such as rcmp or canadian border services approx 2500 reports weekly - reports contain keywords, phrases, and themes that can be prioritised by fintrac and other relevant police services, files can relate to - - current investigations or linked to past files - report is retained within the database for future reference- a proactive investigation is based on the disclosure Designated Information: Relationships Transactions Account info DOBs Identification Passport #s Perm.res. card #s Addresses Phone #s Email addresses International Partners Financial Investigative Units Memoranda of understanding with FIUs in 109 countries Send / receive queries from foreign FIUs FINTRAC can / may query a foreign FIU but only with your permission A query will not slow down your disclosure CC 462.31 Money Laundering - Laundering Proceeds. - No person shall use, transfer the possession of send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner or by any means, which was knowingly obtained or derived directly or indirectly as a result of a) the commission in canada of an offence under this part - - - Moneylaudring is the process used commonly by criminal organisations or white collar criminals to disguise the origin of money so that it appears legitimate. This can involve setting up a cash based business such as a restaurant then mixing in the legitimate money with the criminal proceeds so that tax authorities or police are unable to track the source of the funds. Another method is buy big ticket item like a car boat or home for cash that asses can than be sold and converted into clean cash Section 462.31 of the criminal code makes it an offence for you to be involved in any way with the laundering of the proceeds of crime such as using transferring or transporting funds raised through criminal activity this section of the code was amended in 2019 to make it a crime to be reckless as to weather all or part of that property or those proceeds was obtained or derived from criminal activity. That means if you should have known or suspected the funds were not legitimate but you played some role in a transaction you could be charged with money laundering. Up to 10 years indictable Up to 6 months fine up to $2000 or both summary Indicators of Criminality Elastic vs banks use paper bands Banks bundle in 100 bills of same denominations vs bundles in set amounts of mixed denominations for easy for transactions Markings, Folds – may be specific to the investigation Shrink wrap or Masking agents (foil, dryer sheets) Existence of legitimate paperwork vs. debt lists Contraband found in conveyance or with currency History of criminal involvement - ongoing investigation Circumstances surrounding the seizure – location, time Warrant/Order evidence– legitimate source of income, EI, bank records - Markings - markings are placed on bills / bundles of bills by the organisation that it belongs to - matkings can indicate the amount of money or the person who counted the money - one mark is a flag two markings is beyond a coincidence and three would indicate a defined pattern MSU - - Excellent resource to build your case and gain additional information without judicial authorization. The information obtained can be used at a later time to collaborate with outsourced to obtain search warrants / production orders to provide additional evidence which can be used in court Teams can provide both mobile and static surveillance Are trained to cover multiple jurisdictions Training is provincially coordinated and their standard throughout ontario. Teams for all police services can work in conjunction on large scale operations U.C - Can last for couple of hours or months even years depending on the investigation and how deep the officer becomes involved Most police services in the province of ontario have officer strained in u.c deployment Most undercover work is done as secondary duty U.c officers come in all shapes and sizes They are provincially trained to provide standardisation across ontario They are part of a province wide network and can be deployed anywhere in ontario Agent vs. Informant - - - We must ensure that any information that would tend to reveal the identity of an informer/ agent is protected and we must ensure that any information that would tend to narrow the pool of potential infromers/ agent is protected during the course of the investigation (agent) and permanently (informant) Informant Def. - confidential informer: someone who provides information or assistance to a law enforcement agency whose identity is known to the agency and who request either explicitly or implicitly that his or her identity will remain confidential - the police agree to extend informer privilege - information is received and no direction is given by the police Police Agent Def. - an agent is a person who acts on behalf of a law enforcement agency or under the direction of the law enforcement agency - The identity of an agent can not be protected They make notes sign contracts and testify An agent is usually paid by the law enforcement agency for their services pursuant to a signed contract However some agents may provide services to the police without payment ex. making a drug purchase for the police or introducing an undercover operator Judicial authorizations to assist investigations - CDSA 11(1) - Criminal Code of Canada 487(1) - Production order, criminal code of canada 487.014. - Part VI authorization under the criminal code (wiretap) sec 184 Charter Sections 8,9,10 and 24 S 8. Everyone has the right to be secure against unreasonable search or seizure S 9. Everyone has the right to not be arbitrarily detained or imprisoned S 10. Any person charged with an offence has the right ; a) to be informed promptly of the reasons therefor; b) to retain and instruct counsel without delay and to be informed of that right; and, c) to have the validity of the detention by way of habeas corpus and to be released if the detention is not lawful S 24(2). Where , in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this charter shall be excluded if it is established that having regard to all the circumstances, the admission of it in the proceeding=gs would bring the administration of justice into disrepute Newspaper - - - - - After four months of doing drug business with a man he trusted enough to make a probationary biker, ryan (big red) daigneault, then president of the london outlaws motorcycle club, was arrested as part of a police biker enforcement crackdown. He and Daniel (tattoo) Bell had been duped by a police agent into selling him kilos of cocaine and a firearm. Daignault even supplied him with an encrypted cell phone and a biker vest to join the club On monday, daigneault 47, a massive bald man and the heavily tattooed bell, 37, pleaded guilty before superior court justice spence nicholson to two counts of trafficking cocaine and once count of transferring or offering to transfer a handgun They and several others were charged in March 2021 after a months-long police sweep. At monday's hearing charges against daigneault's wife stacey scaman 43, were withdrawn How big re was caught was described in two agreed statements of facts one 67 pages long the other 59 pages - submitted by assistant crown attorney - - - meredith gardiner they were not read out in court but were filed as exhibits at the guilty plea hearing The exhibits described how a police agent know to big red before the investigation began gained the trust of the high ranking biker and his willing assistant St thomas Agent gave $36000 to bell Another kilo was delivered feb 8 2021 after agent paide $60,000 to big red at his home tattoo passed along the drugs this time in a box inside a red christmas bag at the same location near the truck stop March 9th arrested big red at home in bed Bell arrested same day in st thomas Total weight of coke trafficked by big red to the police agent was 3.385 kilograms Definition of a weapon in the criminal code - In this act, weapon means anything used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm Criminal code definition of a firearm - Firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm Non restricted firearms - This class includes firearms commonly used for hunting or sporting purposes that are not restricted or prohibited Individuals must have a possession and acquisition licence (PAL) for these firearms No longer required to be registered. Legislation ( BIll C68) requiring non-restricted firearms to be registered rescinded by Bill C-19 (05/04/2012) Restricted firearms - This class includes handguns that are not listed as prohibited firearm Firearms designed or adapted to fire after being reduced by folding, telescoping or otherwise length of less than 660mm Also includes firearms designated as restricted under the firearms Act regulations Prohibited firearms include - Fully automatic firearms Converted automatic firearms Modified rifles or shotguns with overall length of 660mm or a barrel length of 457mm Handguns with a barrel of 105mm.32 or.25 calibre handguns Using firearms during an offence - - CC85(1) every person commits an offence who uses a firearm whether or not the person causes or means to cause bodily harm to any person as a result of using the firearm (a) while committing an indictable offence (b) while attempting to commit an indictable offence © during flight after committing or attempting to commit an indictable offence Search & seizure authorities - - - - CC 487(1) search warrant: A justice who is satisfied by information on oath in form 1 that there are reasonable grounds to believe that there is an a building, receptacle or place (a) anything on or in respect of which any offence against this act or any other act of parliament has been or is suspected to have been committed (b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this act or any other act of parliament © anything that there are reasonable grounds to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, or any offence related property Public safety seizure C.C. 117.04(1) - Public safety warrant: if there are no exigent circumstances to act and there are no known criminal offences, this is the process to enter, seize and attempt to prohibit a person from possessing weapons, where a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any such thing Public safety seizure C.C. 117.04(2) Seizure without warrant: where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer may, where the grounds for obtaining a warrant under subsection (1) exist but, by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant, search for and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in possession of the person. It is important to reiterate that firearms do not need to have formed part of the precipitating events for there to be grounds for a public safety concern. R vs Stinchombe scc 1991 - The accused, a lawyer, was charged with breach of trust, theft and fraud. A former secretary of his was a Crown witness at the preliminary inquiry, where she gave evidence apparently favourable to the defence. After the preliminary inquiry but prior to the trial, the witness was again interviewed by an RCMP officer and a written statement taken. Defence counsel was informed of the existence but not of the content of the statements. His request for disclosure was refused. During the trial defence counsel learned conclusively that the witness would not be called by the crown and sought an order that the witness be called or that the crown disclose the contents of the statements to defence. The trial judge dismissed the application. The trial proceeded. In this case we are told that the witness gave evidence at the preliminary hearing favourable of the defence. The subsequent statements were not produced therefore we have no indication from the trial judge as to whether they were favourable or unfavourable. Examination of the statements which were tendered as fresh evidence in this court should be carried out at trial so that counsel for the defence in the context of the issues in the case and other evidence can explain what use might be made of them by the defence. In the circumstance we must assume that non-production of the statements was an important factor in the decision not to call the witness. The absences of this evidence might very well have affected the outcome. Accordingly I would allow the appeal and direct a new trial at which the statements should be produced. S.24 R vs Jordan scc 2016 - J was charged in december 2008 for his role in a dial a dope operation. His trial ended in feb 2013. J brought an application under s.11(b) of the ccrf seeking a stay of proceedings due to the delay. In dismissing the application the trial judge applied the framework set out in R v Morin. Ultimately J was convicted. The court of appeal dismissed the apple. Infringed on his s.11(b) rights Designating the jurisdiction in multi jurisdictional investigations - - 476 for the purpose of this act a) where an offence is committed in or on any water or on a bridge between two or more territorial divisions, the offence shall be deemed to have commited in any of the territorial divisions; b) where an offence is committed on the boundary of two or more territorial divisions or within five hundred metres of any such boundary, or the offence was commenced within one territorial decision and completed within another, the offence shall be deemed to have been committed in any of the territorial divisions. Compelling Witness to court - - - 699(1) if a person is required to attend to give evidence before a superior court of criminal jurisdiction, a court of appeal, an appeal court or a court of criminal jurisdiction other than provincial court judge acting under part xix a subpoena directed to that person shall be issued out of the court before which the attendance of that person is required 699(1) Warrant - where a person is likely to give material evidence in a proceeding to which act applies, a subpoena may be issued in accordance with this part requiring that person to attend to give evidence (2) where it is made to appear that a person who is likely to give material evidence a) will not attend in response to subpoena if a subpoena is issued or b) is evading service of a subpoena - a court, justice or provincial court judge having power to issue a subpoena to require the attendance of that person to give evidence may issue a warrant in form 17 to cause that person to be arrested and to be brought to give evidence Drawing Inferences from facts - Inferring residence - versadex, prior occurrences, mto records, r/o of car parked in driveway, surveillance = regular in/outs