Transnational Crime, Tainted Property, and Civil Forfeiture

• Author: Michelle Gallant
• Profession: Professor of Law, University of Manitoba
• Pages: 303-321

303

thirteen

Transnational Crime, Tainted Property,

andCivil Forfeiture

MICHELLE GALLANT*

A. INTRODUCTION

Two related developments shape the modern control of transnational

criminal phenomena. e rst is the late twentieth, early twenty-rst cen-

tury forging of a transnational strategy centred on nance and the nan-

cial dimensions of crime. is strategy, embedded in modern treaties and

other instruments of international reach, strives to disrupt connections

between crime and nancial activity. e second development, tied to the

rst, is the migration of civil processes, or of civil devices, onto this crime

control terrain. Some migrations appear in transnational mechanisms;

others in domestic regimes.

Within these, a peculiar device, commonly identied as civil forfeiture,

has received some degree of recognition. When the migration of regula-

tion rst gained traction, this device was virtually non-existent in trans-

national dialogues. It has latterly come to feature prominently in tackling

criminal nance, and took root in Canada in . is device is peculiar

* Professor of Law, University of Manitoba. A note of thanks to Steven Dressler for

research assistance, to the Legal Research Institute, Manitoba, and to Robert Currie.

 For example, the United Nations Convention against Corruption, ()  UNTS

, art () [UNCAC]; domestic models are discussed in Section C, below.

 

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because it targets property, rather than people. Part of that peculiarity, too,

is that it is a civil device imported into the domain of the criminal law.

is essay explores civil forfeiture and its centrality to combatting

transnational crime. It charts the innovative transnational nance-cen-

tric approach, and considers civil forfeiture’s location within global fora.

It sketches the development of the use of civil forfeiture in other states

and canvasses the central issues this kind of tool provokes. Shifting to

the Canadian context, it delineates the generic architecture of provincial

civil forfeiture regimes and discusses an intriguing aspect — the use of

in rem proceedings — that serves, in particular, transnational ambitions.

It concludes with an examination of the congruency of the provincial

mechanisms with domestic constitutional ordering.

B. CONFRONTING TRANSNATIONAL CRIME:

AMODERN MODEL

Finance has played a critical role in agitating and abetting crime for

centuries. Few species of crime are bereft of some nancial dimension —

whether ancient piracy or contemporary insider trading and fraud on the

nancial markets. Nor is it novel to exercise circumspection in matters

tainted by crime. Only a fool openly brandishes illicitly acquired wares,

announces where the stolen treasure lies or shouts that the contents of a

bank account are to secure the purchase of nuclear weaponry.

Within global circles, what was new in the twentieth century was

the fashioning of strategic control initiatives centred on relationships

between crime and nance. From the s onwards, acknowledgement

that nance agitates (and that secret nance abets) transnational crime

has become a lynchpin of modern control. Contemporary commentary

usually identies this strategic intervention as the anti-money laundering

strategy. More aptly, it could be described as a nance-centric approach

to suppressing transnational criminal activity — whether proliferation,

corruption, organized crime, terrorism, or drug tracking. e strategy

specically attends to the nancial aspects of crime, to the money derived

therefrom, and to the nancial activity associated therewith. e appeal

to civil devices, and to civil forfeiture, emanates from this contemporary

approach to criminal phenomena.