Canada, crime control and co‐opting legal counsel: canvassing the confidentiality crisis
| Date | 01 October 2003 |
| Pages | 308-315 |
| Published date | 01 October 2003 |
| DOI | https://doi.org/10.1108/13590790310808970 |
| Author | M.M. Gallant |
| Subject Matter | Accounting & finance |
Journal of Financial Crime Ð Vol. 10 No. 4
Canada, Crime Control and Co-opting Legal
Counsel: Canvassing the Con®dentiality Crisis
M. M. Gallant
INTRODUCTION
Since the late 1980s, Canada has been implementing a
money-oriented model of crime control. Under-
pinned by a perception of the power of money, con-
struction of this model moved through several stages,
the most recent consisting of incorporating lawyers
into the ranks of the anti-money laundering force.
Lawyers, antagonistic to this integration, have
parried with a challenge to the constitutionality of
the demand that counsel report any suspicious
®nancial activity undertaken by their clients.
This paper charts the development of the money-
oriented model of crime control from its inception
through to the current legal dispute. It critiques
the suspicious transactions reporting requirements
recently imposed on legal counsel and investigates
the parameters of the claim that the mandatory
reporting function causes a crisis of con®dentiality
in the relationship between solicitor and client.
THE ORIGINS OF THE MONEY-
ORIENTED MODEL OF CRIME
CONTROL
Money and the pursuit of ®nancial gain have always
played a central role in crime. Most, though certainly
not all, criminal activity results in the receipt of some
kind of ®nancial bene®t. That is not to say that the
pursuit of ®nancial rewards fully explains the preva-
lence of crime: the sociological factors contributing
to the occurrence of crime are complex. Yet the
majority of crimes yield a quanti®able monetary
bene®t. The origins of the money-oriented model
of crime control lie in the realisation of the centrality
of money to the commission of crime.
Drugs and the international trade in illegal sub-
stances were chie¯y responsible for bringing that cen-
trality under intense scrutiny. From the early opium
wars between China and the British Empire, the
pursuit of ®nancial gain had fuelled the growth of
drugs tracking. By the later part of the twentieth
century, the illegal drugs industry was estimated to
generate billions of dollars in global revenues.
1
International intervention had previously sought,
and failed, to contain its spread.
2
Criminologists had long ago identi®ed the ration-
ality of criminal activity. In assessing the risks asso-
ciated with the commission of crime Ð the
probability of being caught balanced against the
potential economic gain Ð scholars concluded that
to engage in crime was not a mark of deviance but
a rational choice.
3
Applying this analytic framework
to the drugs industry, the potential pro®ts mute the
deterrence capacity of the criminal law. Relying on
similar logic, as with most businesses and industries,
money fosters expansion. The reinvestment of drug
revenues in drug production, in improved trans-
portation facilities, and in distribution networks
swells pro®ts, thus encouraging the expansion, not
the contraction, of the trade in illegal drugs.
Money and its relationship to crime, accentuated in
the illegal drug trade, initiated the money-oriented
era of crime control. Rather than rely on the tradi-
tional criminal law approach of prohibiting the
activity and prosecuting oenders, the new model
of control, inaugurated at the international level
and implemented by nation states, focuses on the
®nancial element of crime. It is, in part, based on
the belief that money stimulates crime. In part, the
money-oriented model simply re¯ects the basic
tenet that the connection between crime and
money cannot be ignored.
The components of this new model of crime
control include con®scation laws, the prohibition
on money laundering and money laundering detec-
tion and prevention mechanisms. In Canada,
lawyers have now been co-opted into this model
through the introduction of suspicious transactions
reporting. Con®scation laws, inaugurated in the
international drug convention of 1988, facilitate the
divestiture of money linked to the commission of
criminal oences.
4
Although the structure of con®s-
cation regimes diers amongst states, as a general
rule these laws relax the standard of proof applicable
to the con®scation of assets connected to crime, com-
monly through the application of a civil standard, as
opposed to the criminal standard, of proof to the
Page 308
Journal of Financial Crime
Vol.10,No. 4, 2003,pp.308 ±315
#HenryStewart Publications
ISSN 1359-0790
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