Left unchecked, money laundering has significant social and political consequences, but our attempts to tackle this problem could compromise our rights.
This week, the BCCLA is participating in the Cullen Commission of Inquiry into Money Laundering in BC, where we will work to ensure that the rights and liberties of ordinary citizens are taken into account in governmental and private sector efforts to combat money laundering. While we support the aims of the Inquiry, we remain concerned about the civil liberties implications of the measures proposed.
The Commission was established to inquire into and report on money laundering in BC and to make recommendations for anti-money laundering measures in the province. However, the Commission is considering some troubling anti-money laundering measures that include:
- Increasing the amount and types of data collected and shared by public and private sector institutions.
- Increasing the presence and powers of police and regulatory investigators in the gaming industry.
- Expanding the use of invasive, rights-infringing measures such as civil forfeiture and introducing Unexplained Wealth Orders (“UWOs”), which allow for government confiscation of citizens’ property without due process
These types of recommendations have severe implications for the privacy rights and civil liberties of all Canadians, not just those who may be suspected of money laundering activity. With these interests at stake, the participation of the BCCLA at the Commission is crucial. The BCCLA will be the only voice calling on the Commission to take into account the civil liberties and human rights of citizens in developing an anti-money laundering regime.
Implications of Data Collection and Sharing
The BCCLA has consistently worked to protect and advocate for the fundamental right of privacy, even as rapid technological advances in data collection and analysis threaten privacy rights like never before. The prevalence of data collection and tracking by government entities and private companies increases the risk that data will be used for profiling, unlawful monitoring of communities, immigration enforcement, be leaked, or otherwise exploited for improper purposes. The threat of profiling is significantly heightened, given FINTRAC rules that require reporting entities to flag transactions with a “foreign component.”
The BCCLA will appear before the Commission to argue that proper checks and balances must be put in place for anti-money laundering measures that involve data collection and sharing. Increased calls for data collection and sharing in the context of anti-money laundering initiatives must not unduly compromise privacy and other fundamental rights.
The Loss of Presumption of Innocence and the Potential for Racial Profiling
The BCCLA will also advocate against the use of civil forfeiture and the invasive tool of UWOs by the government. We have always been staunch opponents of civil forfeiture laws, pursuant to which an individual who has not been charged or convicted of a crime can lose their property to the government.
The BCCLA has spoken out against the incentive the law creates for police and government abuse, and the barriers to representation faced by those targeted by civil forfeiture orders, who are often low-income individuals.
UWOs measures are even more extreme than civil forfeiture. These orders raise profound civil liberties implications, including erosion of privacy rights, doing away with the presumption of innocence, and subverting the rights that shield people from unreasonable search and seizure. In the United Kingdom, UWOs have required that a person provide a detailed account of how they obtained a piece of property (real estate or goods) without the requirement that any criminal charges be filed.
The reverse onus scheme of UWOs would permit the province to exercise coercive state powers and obtain court orders against people without any evidence of wrongdoing. There is also the risk that such orders could be used to unfairly target racialized individuals and groups, such as Chinese-Canadians or Chinese newcomers with assets in BC. The BCCLA intends to address the potential for, and negative impacts of, racial profiling in Anti-Money Laundering efforts at the Inquiry.
More Police, Less Accountability
Many of the recommendations for anti-money laundering measures call for significant increases in police powers and presence. The BCCLA has long been an advocate for police accountability and transparency. We have seen time and time again how problematic policing policies and practices can lead to abuse and hurt citizens and society.
At the Inquiry, the BCCLA will call for accountability mechanisms for policing and police misconduct. The BCCLA will also call for independent research and analysis on the efficacy and potential impact of proposed calls for more policing. It is critical to ensure that policing units assigned to casinos and related gaming activities are not created or expanded unnecessarily and that they do not operate in a rights-infringing manner.
Anti-money laundering measures will affect the majority of the population, not just those suspected of money laundering activities. The BCCLA will work to ensure that the implications for the rights and liberties of all form an essential part of the analysis in developing an effective Anti-Money-Laundering regime.