Money Laundering (Offence): Difference between revisions
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[[fr:Recyclage des produits de la criminalité (infraction)]] | |||
{{currency2|August|2021}} | |||
{{LevelZero}}{{HeaderOffences}} | {{LevelZero}}{{HeaderOffences}} | ||
{{OffenceBox | |||
{{OffenceBox |OffenceTitle=Money Laundering|OffencePage=Money Laundering|Section=462.31|Act={{OBCCC}} |CrownElection= {{OBHybridElection}} |Jurisdiction={{OBJurisdictionAll}} |Bail={{OBBailAll}} |SummaryDisp= {{OBDispAll}} |SummaryMin= {{OBMinNone}} |SummaryMax= {{OBSConviction}} |IndictableDisp= {{OBDispSame}} |IndictableMin= {{OBMinNone}} |IndictableMax= {{OBTime|10 years}} }} | |OffenceTitle=Money Laundering | ||
|OffencePage=Money Laundering | |||
|Section=462.31 | |||
|Act={{OBCCC}} | |||
|CrownElection= {{OBHybridElection}} | |||
|Jurisdiction={{OBJurisdictionAll-Under14}} | |||
|Bail={{OBBailAll}} | |||
|SummaryDisp= {{OBDispAll}} | |||
|SummaryMin= {{OBMinNone}} | |||
|SummaryMax= {{OBSConviction}} | |||
|IndictableDisp= {{OBDispSame}} | |||
|IndictableMin= {{OBMinNone}} | |||
|IndictableMax= {{OBTime|10 years}} }} | |||
==Overview== | ==Overview== | ||
{{OverviewXII.2|money laundering}} | {{OverviewXII.2|money laundering}} | ||
; Pleadings | |||
{{PleadingsHeader}} | {{PleadingsHeader-N}} | ||
{{PleadingsHybridList|s. 462. | {{PleadingsHybridList-N|s. 462.31 {{DescrSec|462.31}} | {{Yes}} | {{Yes-IfCrown}} | {{No-Under14}} }} | ||
{{ | {{PleadingsHybridList-N|s. 462.33 {{DescrSec|462.33}} | {{Yes}} | {{Yes-IfCrown}} | {{No}} }} | ||
{{PleadingsEnd}} | {{PleadingsEnd}} | ||
{{PleadingsHybridElection-Under14|s. 462.31 {{DescrSec|462.31}} }} | |||
{{ | |||
{{PleadingsHybridElection-Under14|s. 462.33 {{DescrSec|462.33}} }} | |||
; Release | |||
{{ReleaseOptions-Hybrid|s. 462.31 {{DescrSec|462.31}}<Br>s. 462.33(11)}} | |||
:''<u>Reverse Onus Bail</u>'' | |||
{{ReverseOnusCirc}} | {{ReverseOnusCirc}} | ||
; Publication Bans | |||
{{GeneralPubBan}} | {{GeneralPubBan}} | ||
; Offence Designations | |||
{{DesignationHeader}} | |||
|- | |||
|s. 462.31 {{DescrSec|462.31}} || {{OKMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent--> || {{OKMark}} | |||
|- | |||
|s. 462.33 {{DescrSec|462.31}} || {{XMark}} <!--wire--> || {{XMark}} <!--DO-->||{{XMark}} <!--SPIO--> || {{XMark}} <!--consent--> || {{XMark}} | |||
{{DesignationEnd}} | |||
{{WiretapDesignation|s. 462.31}} | {{WiretapDesignation|s. 462.31}} | ||
Line 28: | Line 52: | ||
==Offence Wording== | ==Offence Wording== | ||
{{ | {{quotation3| | ||
; Offence | |||
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of | ; Laundering proceeds of crime | ||
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that, or being reckless as to whether, all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of | |||
:(a) the commission in Canada of a designated offence; or | :(a) the commission in Canada of a designated offence; or | ||
:(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence. | :(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence. | ||
; Punishment | |||
(2) Every one who commits an offence under subsection (1) | (2) Every one who commits an offence under subsection (1) {{AnnSec4|462.31(1)A}} | ||
:(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or | :(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or | ||
:(b) is guilty of an offence punishable on summary conviction. | :(b) is guilty of an offence punishable on summary conviction. | ||
; Exception | |||
(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties. | (3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) {{AnnSec4|462.31(1)A}} if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties. | ||
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, s. 28; 2001, c. 32, s. 13; 2005, c. 44, s. 2(F). | R.S., 1985, c. 42 (4th Supp.), s. 2; | ||
| | {{LegHistory90s|1996, c. 19}}, s. 70; | ||
{{LegHistory90s|1997, c. 18}}, s. 28; | |||
{{LegHistory00s|2001, c. 32}}, s. 13; | |||
{{LegHistory00s|2005, c. 44}}, s. 2(F); | |||
{{LegHistory10s|2019, c. 29}}, s. 103. | |||
{{Annotation}} | |||
|{{CCCSec2|462.31}} | |||
|{{NoteUp|462.31|1|2|3}} | |||
|{{Terms- | |||
|"designated offence" (s. 462.3) | |||
|"person" (s. 2) | |||
|"property" (s. 2) | |||
}} | |||
}} | }} | ||
{{ | {{quotation2| | ||
462.33<br>... | 462.33<br> | ||
{{removed|(1), (2), (3), (3.01), (3.1). (4), (5), (6), (7), (8), (9) and (10)}} | |||
(11) Any person on whom an order made under subsection (3) is served in accordance with this section and who, while the order is in force, acts in contravention of or fails to comply with the order is guilty of an indictable offence or an offence punishable on summary conviction. | ; Offence | ||
(11) Any person on whom an order made under subsection (3) {{AnnSec4|462.33(3)}} is served in accordance with this section and who, while the order is in force, acts in contravention of or fails to comply with the order is guilty of an indictable offence or an offence punishable on summary conviction. | |||
<br> | <br> | ||
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 37, s. 21; 1996, c. 16, s. 60; 1997, c. 18, s. 30; 2001, c. 32, s. 15; 2005, c. 44, s. 4. | R.S., 1985, c. 42 (4th Supp.), s. 2; | ||
| | {{LegHistory90s|1993, c. 37}}, s. 21; | ||
{{LegHistory90s|1996, c. 16}}, s. 60; | |||
{{LegHistory90s|1997, c. 18}}, s. 30; | |||
{{LegHistory00s|2001, c. 32}}, s. 15; | |||
{{LegHistory00s|2005, c. 44}}, s. 4; | |||
{{LegHistory10s|2019, c. 25}}, s. 181. | |||
{{Annotation}} | |||
|{{CCCSec2|462.33}} | |||
|{{NoteUp|462.33|11}} | |||
}} | }} | ||
===Draft Form of Charges=== | |||
{{seealso|Draft Form of Charges}} | |||
{{DraftHeader}} | |||
|- | |||
| 462.31 | |||
| Money Laundering | |||
|"{{ellipsis1}}, did use, transfer the possession of, send to or deliver to [name of person or place] or transport, alter, dispose of, or otherwise deal with, property or proceeds and knowing that all or part of that property or proceeds was obtained or derived directly or indirectly from the commission of an enterprise crime offence or a designated drug offence{{ToWit-Conduct}} {{contrary|462.31}}." | |||
|- | |||
| 462.33 | |||
| | |||
|"{{ellipsis1}}, ...{{ToWit-Conduct}} {{contrary|462.33}}." | |||
{{DraftEnd}} | |||
==Proof of the Offence== | ==Proof of the Offence== | ||
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{{ElementLeft}} | {{ElementLeft}} | ||
{{Proving|money laundering|462.31}}<ref> | {{Proving|money laundering|462.31}}<ref> | ||
{{CanLIIRx|Tan Tien Nguyen|fw001|2013 ONSC 605 (CanLII)}}{{perONSC|Ricchetti J}}{{atL|fw001|315}}<br> | |||
{{CanLIIRx|Bailey|g6x7w|2014 ABPC 103 (CanLII)}}{{perABPC|Fradsham J}}{{atL|g6x7w|454}}<br> | |||
{{CanLIIRP|Barna|hwl0j|2018 ONCA 1034 (CanLII)|371 CCC (3d) 217}}{{TheCourtONCA}}{{atL|hwl0j|12}} ("The essential elements of laundering proceeds of crime are: (1) that the accused dealt with property (in this case, the bank draft) or proceeds of property; (2) that the property was obtained by crime (in this case, fraud); (3) that the accused knew or believed that the property had been obtained by crime; and (4) that the accused intended to conceal or convert the property...")<br> | |||
{{CanLIIRP|Tejani|1f9lq|1999 CanLII 3765 (ON CA)|138 CCC (3d) 366}}{{perONCA|Laskin JA}} | |||
</ref> | </ref> | ||
{{InitialElements}} | {{InitialElements}} | ||
# the culprit "uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with" the subject matter of the offence; | # {{box}} the culprit "uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with" the subject matter of the offence; | ||
# the subject matter is "any property or any proceeds of any property obtained or derived directly or indirectly as a result of" | # {{box}} the subject matter is "any property or any proceeds of any property obtained or derived directly or indirectly as a result of" | ||
##the commission in Canada of an enterprise crime offence or an offence; or | ## {{box}} the commission in Canada of an enterprise crime offence or an offence; or | ||
##an act or omission anywhere that, it had occurred in Canada, would have constituted an enterprise crime offence or an offence | ## {{box}} an act or omission anywhere that, it had occurred in Canada, would have constituted an enterprise crime offence or an offence | ||
# the offence is a "designated offence"; | # {{box}} the offence is a "designated offence"; | ||
# the culprit had an intent to conceal or convert the property or proceeds; and | # {{box}} the culprit had an intent to conceal or convert the property or proceeds; and | ||
# the culprit knows or believes "that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of" the "commission in Canada of a designated offence" or "act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence". | # {{box}} the culprit knows or believes "that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of" the "commission in Canada of a designated offence" or "act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence". | ||
{{ElementEnd}} | {{ElementEnd}} | ||
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==Interpretation of the Offence== | ==Interpretation of the Offence== | ||
Money laundering is defined by the OECD as the "processing of criminal proceeds to disguise their illegal origin in order to legitimise the ill-gotten gains of crime."<ref> | |||
https://www.oecd.org/ctp/crime/money-laundering-awareness-handbook-for-tax-examiners-and-tax-auditors.pdf | |||
</ref> | </ref> | ||
{{reflist|2}} | |||
===Actus Reus=== | |||
The ''actus reus'' is "very broad", involving dealing with any property in one of the enumerated ways.<Ref> | |||
{{CanLIIR|Barna|g6wv4|2014 ONSC 1011 (CanLII)}}{{perONSC|Pattillo J}}{{atL|g6wv4|184}}<Br> | |||
{{CanLIIRP|Tejani|1f9lq|1999 CanLII 3765 (ON CA)|123 O.A.C. 329, 138 CCC (3d) 366}}{{perONCA|Laskin JA}}{{atL|1f9lq|26}} | |||
</ref> | </ref> | ||
{{reflist|2}} | |||
===Mens Rea=== | |||
There are two elements of ''mens rea''. There must be "knowledge or belief" that the property was "derived from" a designated offence, and there must be an "intent to conceal or convert" the property or proceeds.<Ref> | |||
{{CanLIIRP|Barna|g6wv4|2014 ONSC 1011 (CanLII)|[2014] O.J. No. 2373}}{{perONSC|Pattillo J}}{{AtL|g6wv4|186}}<Br> | |||
See {{CanLIIRP|Tejani|1f9lq|1999 CanLII 3765 (ON CA)|138 CCC (3d) 366}}{{perONCA|Laskin JA}}{{atL|1f9lq|27}}<br> | |||
{{CanLIIR|Daoust|1gd51|2004 SCC 6 (CanLII)|[2004] 1 SCR 217}}{{atL|1gd51|241| to 242}}<Br> | |||
</ref> | |||
; Specificity | |||
It is not necessary that they know the ''exact'' origin, only that they know the ''type'' of crime it is from.<ref> | |||
{{CanLIIRx|Tan Tien Nguyen|fw001|2013 ONSC 605 (CanLII)}}{{perONSC| Ricchetti J}}{{atL|fw001|317}}<br> | |||
</ref> | |||
Details of the crime are not necessary.<Ref> | |||
{{supra1|Tejani}}{{atL|1f9lq|36}}<Br> | |||
</ref> | |||
However, it is insufficient to have a belief of an "unspecified criminal activity."<Ref> | |||
{{supra1|Tejani}}{{atL|1f9lq|34}}<Br> | |||
</ref> | |||
; Wilful Blindness | |||
The knowledge element of the offence can be made out by wilful blindness.<ref> | The knowledge element of the offence can be made out by wilful blindness.<ref> | ||
Bailey | {{CanLIIRx|Bailey|g6x7w|2014 ABPC 103 (CanLII)}}{{perABPC|Fradsham J}}{{atL|g6x7w|473}}<br> | ||
{{supra1|Barna}}{{AtL|g6wv4|187}}<Br> | |||
{{supra1|Tejani}}{{atL|1f9lq|41}}<Br> | |||
</ref> | |||
Wilful blindness will not apply in money laundering where it is found that the accused was deceived, even in the face of profound naivety.<Ref> | |||
{{CanLIIR|Garnett|grv2l|2016 NSSC 131 (CanLII)}}{{perNSSC|Campbell J}}{{atL|grv2l|13}}<Br> | |||
</ref> | |||
{{reflist|2}} | |||
==="or otherwise deals with"=== | |||
The phrase "or otherwise deals with" were read ''out'' of the section as the wording does not appear in the french version.<ref> | |||
{{CanLIIR|Barna|g6wv4|2014 ONSC 1011 (CanLII)}}{{perONSC|Pattillo J}}{{atL|g6wv4|185}} appealed to 2018 ONCA 1034<Br> | |||
{{CanLIIRP|Bois|1gd51|2004 SCC 6 (CanLII)|[2004] 1 SCR 217}}{{perSCC-H|Bastarache J}} | |||
</ref> | |||
{{reflist|2}} | |||
==="convert" and "conceal"=== | |||
The act of "converting" does not require any effort to conceal. The two terms are separate.<ref> | |||
{{CanLIIRP|Daoust|1gd51|2004 SCC 6 (CanLII)|[2004] 1 SCR 217}}{{perSCC|Bastarache J}}<Br> | |||
</ref> | |||
"Convert" uses its "ordinary" meaning.<ref> | |||
{{ibid1|Daoust}} | |||
</ref> | |||
{{reflist|2}} | |||
==="property"=== | |||
A bank draft can constitute "property."<ref> | |||
{{CanLIIRP|Barna|hwl0j|2018 ONCA 1034 (CanLII)|371 CCC (3d) 217}}{{TheCourtONCA}} | |||
</ref> | </ref> | ||
{{reflist|2}} | |||
==="Designated Offence"=== | |||
{{seealso|Forfeiture of Proceeds of Crime#Designated Offence Defined}} | {{seealso|Forfeiture of Proceeds of Crime#Designated Offence Defined}} | ||
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{{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}} | {{seealso|Role of the Victim and Third Parties|Testimonial Aids for Young, Disabled or Vulnerable Witnesses}} | ||
; Testimonial Aids | |||
{{3rdPTestimonyAids}} | {{3rdPTestimonyAids}} | ||
; On Finding of Guilt | |||
<!-- | {{VictimHeader}} <!-- Sections / Notice of Agree / Notice of Restitution / Notice of VIS --> | ||
|s. 462.31 {{DescrSec|462.31}} || || || | |||
|- | |||
|s. 462.33(11) {{DescrSec|462.33(11)}} || || || | |||
|- | |||
{{VictimEnd}}<!-- | |||
{{606Notice5Y|XX}} | {{606Notice5Y|XX}} | ||
{{606NoticeSPIO|XX}} | {{606NoticeSPIO|XX}} | ||
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{{seealsoSentencing}} | {{seealsoSentencing}} | ||
; Maximum Penalties | |||
{{SProfileMaxHeader}} | {{SProfileMaxHeader}} | ||
{{SProfileMax|s. 462.31 | Summary | {{SProfileMax|s. 462.31 {{DescrSec|462.31}} | {{Summary}} | {{summaryconviction}} }} | ||
{{SProfileMax|s. 462.31 | Indictable | {{SProfileMax|s. 462.31 {{DescrSec|462.31}} | {{Indictable}} | {{Max10Years}} }} | ||
{{SProfileMax|s. 462.33(11) {{DescrSec|462.33(11)}} | {{Summary}} | {{summaryconviction}} }} | |||
{{SProfileMax|s. 462.33(11) {{DescrSec|462.33(11)}} | {{Indictable}} | {{Max5Years}} <Ref>Note: the maximum penalty of is based on s. 743 which designates 5 years where not specified.</ref>}} | |||
{{SProfileEnd}} | {{SProfileEnd}} | ||
''' | {{MaxPenaltyHybrid|s. 462.31 {{DescrSec|462.31}}|'''{{Max10Years}}'''|'''{{summaryconviction}}'''}} | ||
{{MaxPenaltyHybrid|s. 462.33(11) {{DescrSec|462.33(11)}}|'''{{Max5Years}}'''|'''{{summaryconviction}}'''}} | |||
; Minimum Penalties | |||
{{NoMinimumPenalties}} | {{NoMinimumPenalties}} | ||
; Available Dispositions | |||
{{SProfileAvailHeader}} | {{SProfileAvailHeader}} | ||
|s. 462.31 || any || {{SProfileAll}} | |s. 462.31 {{DescrSec|462.31}}|| any || {{SProfileAll}} | ||
|- | |||
|s. 462.33(11) {{DescrSec|462.33(11)}}|| Indictable || {{SProfileAll}} | |||
|- | |- | ||
{{SProfileEnd}} | {{SProfileEnd}} | ||
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{{AllDispositionsAvailable}} | {{AllDispositionsAvailable}} | ||
; Consecutive Sentences | |||
{{NoConsecutive}} | {{NoConsecutive}} | ||
Where this offence is accompanied by a fraud charge. The judge may be able to sentence money laundering as consecutive to the fraud sentence.<ref> | |||
{{CanLIIR|Neilson|j9rw1|2020 ABQB 556 (CanLII)}}{{perABQB|Eidsvik J}}{{atL|j9rw1|106}} | |||
</ref> | |||
{{reflist|2}} | |||
===Principles=== | ===Principles=== | ||
===Ranges=== | ===Ranges=== | ||
{{seealsoRanges|Money Laundering}} | {{seealsoRanges|Money Laundering}} | ||
It is suggested that money laundering alone will net a sentence in a range between 2 years less a day CSO to a jail sentence between 18 months and 5 years.<ref> | |||
{{CanLIIRP|Sheck v. Canada (Minister of Justice)|j30sf|2019 BCCA 364 (CanLII)|381 CCC (3d) 161}}{{perBCCA|Griffin JA}}{{atL|j30sf|62}} | |||
</ref> | |||
{{reflist|2}} | |||
==Ancillary Sentencing Orders== | ==Ancillary Sentencing Orders== | ||
Line 140: | Line 281: | ||
{{AOrderHeader}} | {{AOrderHeader}} | ||
{{AOrder1| [[DNA Orders]] |s. 462.31 | | {{AOrder1| [[DNA Orders]] |s. 462.31 {{DescrSec|462.31}}| | ||
* {{SecondDNA(AorB)Hybrid|s. 462.31}} }} | * {{SecondDNA(AorB)Hybrid|s. 462.31 {{DescrSec|462.31}}}} }} | ||
{{AOrderEnd}} | {{AOrderEnd}} | ||
; General Sentencing Orders | |||
{{GeneralSentencingOrders}} | {{GeneralSentencingOrders}} | ||
; General Forfeiture Orders | |||
{{GeneralForfeitureOrders}} | {{GeneralForfeitureOrders}} | ||
==Record Suspensions and Pardons== | |||
{{RecordSuspension|s. 462.31 {{DescrSec|462.31}} }} | |||
==History== | ==History== | ||
{{seealso|List of Criminal Code Amendments}} | {{seealso|List of Criminal Code Amendments|Table of Concordance (Criminal Code)}} | ||
===2001 to 2005=== | ===2001 to 2005=== | ||
{{ | {{quotation1| | ||
; Laundering proceeds of crime | |||
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of | 462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of | ||
:(a) the commission in Canada of a designated offence; or | :(a) the commission in Canada of a designated offence; or | ||
:(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence. | :(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted a designated offence. | ||
; Punishment | |||
(2) Every one who commits an offence under subsection (1) | (2) Every one who commits an offence under subsection (1) | ||
:(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or | :(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or | ||
:(b) is guilty of an offence punishable on summary conviction. | :(b) is guilty of an offence punishable on summary conviction. | ||
; Exception | |||
(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties. | (3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties. | ||
<br> | <br> | ||
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, s. 28; 2001, c. 32, s. 13. | R.S., 1985, c. 42 (4th Supp.), s. 2; {{LegHistory90s|1996, c. 19}}, s. 70; {{LegHistory90s|1997, c. 18}}, s. 28; {{LegHistory00s|2001, c. 32}}, s. 13. | ||
|[http://canlii.ca/t/hzb8#sec462.31 CCC] | |[http://canlii.ca/t/hzb8#sec462.31 CCC] | ||
|{{NoteUp|}} | |||
}} | }} | ||
==See Also== | ==See Also== | ||
; Related Offences | |||
* [[Possession of Stolen Property (Offence)]] | * [[Possession of Stolen Property (Offence)]] | ||
; References | |||
* [[Pre-Trial and Trial Motions Checklist]] | * [[Pre-Trial and Trial Motions Checklist]] | ||
Latest revision as of 20:14, 26 August 2024
This page was last substantively updated or reviewed August 2021. (Rev. # 96253) |
Money Laundering | |
---|---|
s. 462.31 of the Crim. Code | |
Election / Plea | |
Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
Summary Dispositions | |
Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
Minimum | None |
Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
Indictable Dispositions | |
Avail. Disp. | same as summary |
Minimum | None |
Maximum | 10 years incarceration |
Reference | |
Offence Elements Sentence Digests |
Overview
Offences relating to money laundering are found in Part XII.2 of the Criminal Code relating to "Proceeds of Crime".
- Pleadings
Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
Preliminary Inquiry |
---|---|---|---|---|
s. 462.31 [money laundering] | Hybrid Offence(s) | (* only if Crown proceeds by Indictment) | (under 14 years max) | |
s. 462.33 [breach of a restraint order] | Hybrid Offence(s) | (* only if Crown proceeds by Indictment) |
Offences under s. 462.31 [money laundering] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
Offences under s. 462.33 [breach of a restraint order] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2) to trial by provincial court, superior court judge-alone or superior court judge-and-jury.
- Release
When charged under s. 462.31 [money laundering]
s. 462.33(11), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:
- while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
- "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
- where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
- where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
- Publication Bans
For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.
- Offence Designations
Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
---|---|---|---|---|---|
s. 462.31 [money laundering] | |||||
s. 462.33 [money laundering] |
Offences under s. 462.31 are designated offences eligible for wiretap under s. 183.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Offence Wording
- Offence
- Laundering proceeds of crime
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that, or being reckless as to whether, all or a part of that property or of those proceeds was 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 it had occurred in Canada, would have constituted a designated offence.
- Punishment
(2) Every one who commits an offence under subsection (1) [money laundering – offence]
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
- (b) is guilty of an offence punishable on summary conviction.
- Exception
(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) [money laundering – offence] if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, s. 28; 2001, c. 32, s. 13; 2005, c. 44, s. 2(F); 2019, c. 29, s. 103.
[annotation(s) added]
462.33
[omitted (1), (2), (3), (3.01), (3.1). (4), (5), (6), (7), (8), (9) and (10)]
- Offence
(11) Any person on whom an order made under subsection (3) [application for restraint order – requirements for granting order] is served in accordance with this section and who, while the order is in force, acts in contravention of or fails to comply with the order is guilty of an indictable offence or an offence punishable on summary conviction.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1993, c. 37, s. 21; 1996, c. 16, s. 60; 1997, c. 18, s. 30; 2001, c. 32, s. 15; 2005, c. 44, s. 4; 2019, c. 25, s. 181.
[annotation(s) added]
Draft Form of Charges
Pre-ambles | ||
---|---|---|
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
"AND FURTHER at the same time and place aforesaid, he [or she]..." | ||
Code Section | Subject of Offence | Draft Wording |
462.31 | Money Laundering | "..., did use, transfer the possession of, send to or deliver to [name of person or place] or transport, alter, dispose of, or otherwise deal with, property or proceeds and knowing that all or part of that property or proceeds was obtained or derived directly or indirectly from the commission of an enterprise crime offence or a designated drug offence, to wit: [conduct], contrary to section 462.31 of the Criminal Code." |
462.33 | "..., ..., to wit: [conduct], contrary to section 462.33 of the Criminal Code." |
Proof of the Offence
Proving money laundering under s. 462.31 should include:[1]
|
- ↑
R v Tan Tien Nguyen, 2013 ONSC 605 (CanLII), per Ricchetti J, at para 315
R v Bailey, 2014 ABPC 103 (CanLII), per Fradsham J, at para 454
R v Barna, 2018 ONCA 1034 (CanLII), 371 CCC (3d) 217, per curiam, at para 12 ("The essential elements of laundering proceeds of crime are: (1) that the accused dealt with property (in this case, the bank draft) or proceeds of property; (2) that the property was obtained by crime (in this case, fraud); (3) that the accused knew or believed that the property had been obtained by crime; and (4) that the accused intended to conceal or convert the property...")
R v Tejani, 1999 CanLII 3765 (ON CA), 138 CCC (3d) 366, per Laskin JA
Interpretation of the Offence
Money laundering is defined by the OECD as the "processing of criminal proceeds to disguise their illegal origin in order to legitimise the ill-gotten gains of crime."[1]
Actus Reus
The actus reus is "very broad", involving dealing with any property in one of the enumerated ways.[1]
- ↑
R v Barna, 2014 ONSC 1011 (CanLII), per Pattillo J, at para 184
R v Tejani, 1999 CanLII 3765 (ON CA), 123 O.A.C. 329, 138 CCC (3d) 366, per Laskin JA, at para 26
Mens Rea
There are two elements of mens rea. There must be "knowledge or belief" that the property was "derived from" a designated offence, and there must be an "intent to conceal or convert" the property or proceeds.[1]
- Specificity
It is not necessary that they know the exact origin, only that they know the type of crime it is from.[2] Details of the crime are not necessary.[3] However, it is insufficient to have a belief of an "unspecified criminal activity."[4]
- Wilful Blindness
The knowledge element of the offence can be made out by wilful blindness.[5] Wilful blindness will not apply in money laundering where it is found that the accused was deceived, even in the face of profound naivety.[6]
- ↑
R v Barna, 2014 ONSC 1011 (CanLII), [2014] O.J. No. 2373, per Pattillo J, at para 186
See R v Tejani, 1999 CanLII 3765 (ON CA), 138 CCC (3d) 366, per Laskin JA, at para 27
R v Daoust, 2004 SCC 6 (CanLII), at para 241
- ↑
R v Tan Tien Nguyen, 2013 ONSC 605 (CanLII), per Ricchetti J, at para 317
- ↑
Tejani, supra, at para 36
- ↑
Tejani, supra, at para 34
- ↑
R v Bailey, 2014 ABPC 103 (CanLII), per Fradsham J, at para 473
Barna, supra, at para 187
Tejani, supra, at para 41
- ↑
R v Garnett, 2016 NSSC 131 (CanLII), per Campbell J, at para 13
"or otherwise deals with"
The phrase "or otherwise deals with" were read out of the section as the wording does not appear in the french version.[1]
- ↑
R v Barna, 2014 ONSC 1011 (CanLII), per Pattillo J, at para 185 appealed to 2018 ONCA 1034
R v Bois, 2004 SCC 6 (CanLII), [2004] 1 SCR 217, per Bastarache J
"convert" and "conceal"
The act of "converting" does not require any effort to conceal. The two terms are separate.[1] "Convert" uses its "ordinary" meaning.[2]
- ↑
R v Daoust, 2004 SCC 6 (CanLII), [2004] 1 SCR 217, per Bastarache J
- ↑ Daoust, ibid.
"property"
A bank draft can constitute "property."[1]
- ↑ R v Barna, 2018 ONCA 1034 (CanLII), 371 CCC (3d) 217, per curiam
"Designated Offence"
Participation of Third Parties
- Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).
A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.
- On Finding of Guilt
Offence(s) | Victim Notice of Agreement s. 606(4.1) [SPIO] |
Victim Queried for Interest in Agreement s. 606(4.2) [5+ years] |
Victim Notice for Restitution s. 737.1 |
Victim Notice of Impact Statement s. 722(2) |
---|---|---|---|---|
s. 462.31 [money laundering] | ||||
s. 462.33(11) [breach of a restraint order] |
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".
Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.
Sentencing Principles and Ranges
- Maximum Penalties
Offence(s) | Crown Election |
Maximum Penalty |
---|---|---|
s. 462.31 [money laundering] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 462.31 [money laundering] | indictable election | 10 years incarceration |
s. 462.33(11) [breach of a restraint order] | summary election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
s. 462.33(11) [breach of a restraint order] | indictable election | 5 years incarceration [1] |
Offences under s. 462.31 [money laundering] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
Offences under s. 462.33(11) [breach of a restraint order] are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
Offence(s) | Crown Election |
Discharge s. 730 |
Suspended Sentence s. 731(1)(a) |
Stand-alone Fine s. 731(1)(b) |
Custody s. 718.3, 787 |
Custody and Probation s. 731(1)(b) |
Custody and Fine s. 734 |
Conditional Sentence (CSO) s. 742.1 |
---|---|---|---|---|---|---|---|---|
s. 462.31 [money laundering] | any | |||||||
s. 462.33(11) [breach of a restraint order] | Indictable |
All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).
- Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.
Where this offence is accompanied by a fraud charge. The judge may be able to sentence money laundering as consecutive to the fraud sentence.[2]
- ↑ Note: the maximum penalty of is based on s. 743 which designates 5 years where not specified.
- ↑ R v Neilson, 2020 ABQB 556 (CanLII), per Eidsvik J, at para 106
Principles
Ranges
- see also: Money Laundering (Sentencing Cases)
It is suggested that money laundering alone will net a sentence in a range between 2 years less a day CSO to a jail sentence between 18 months and 5 years.[1]
- ↑ R v Sheck v. Canada (Minister of Justice), 2019 BCCA 364 (CanLII), 381 CCC (3d) 161, per Griffin JA, at para 62
Ancillary Sentencing Orders
Offence-related Orders
Order | Conviction | Description |
---|---|---|
DNA Orders | s. 462.31 [money laundering] |
|
- General Sentencing Orders
Order | Conviction | Description |
---|---|---|
Non-communication order while offender in custody (s. 743.21) | any | The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them. |
Restitution Orders (s. 738) | any | A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403. |
Victim Fine Surcharge (s. 737) | any | A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100). |
- General Forfeiture Orders
Forfeiture | Conviction | Description |
---|---|---|
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) | any | Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
Fine in Lieu of Forfeiture (s. 462.37(3)) | any | Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration. |
Forfeiture of Weapons or Firearms (s. 491) | any | Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner. |
Forfeiture of Offence-related Property (s. 490.1) | any | Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not apply to summary offences. |
Record Suspensions and Pardons
Convictions under s. 462.31 [money laundering] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".
History
2001 to 2005
- Laundering proceeds of crime
462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds, knowing or believing that all or a part of that property or of those proceeds was 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 it had occurred in Canada, would have constituted a designated offence.
- Punishment
(2) Every one who commits an offence under subsection (1)
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
- (b) is guilty of an offence punishable on summary conviction.
- Exception
(3) A peace officer or a person acting under the direction of a peace officer is not guilty of an offence under subsection (1) if the peace officer or person does any of the things mentioned in that subsection for the purposes of an investigation or otherwise in the execution of the peace officer’s duties.
R.S., 1985, c. 42 (4th Supp.), s. 2; 1996, c. 19, s. 70; 1997, c. 18, s. 28; 2001, c. 32, s. 13.– CCC
See Also
- Related Offences
- References
- 2021
- Level Zero
- Criminal Law
- Sentencing
- Offences
- Offences Punishable on Summary Conviction
- Offences with Maximum Penalty of 2 Years Less a Day
- Wiretap Eligible Offences
- 1996, c. 19
- 1997, c. 18
- 2001, c. 32
- 2005, c. 44
- 2019, c. 29
- 1993, c. 37
- 1996, c. 16
- 2019, c. 25
- Offences Requiring Notice to Victim
- Offences with Maximum Penalty of 10 Years
- Offences with Maximum Penalty of 5 Years
- Hybrid Offences
- Offences with No Mandatory Minimum
- Secondary Designated Offences for DNA Orders