G7 to focus on transnational criminal organizations, aviation infrastructure security, terrorist financing

By Christine Duhaime | May 27th, 2017

The G7 released a special statement on financial crime, promising to re-double its efforts from the last 12 months on ending financial crime, in particular terrorist financing and international money laundering involving transnational criminal organizations. Every year there is a commitment to these goals but this time, the G7 has promised to turn their statements “into action” and to commence working with the private sector in these initiatives.

The G7 recognized the weaknesses in security of aviation infrastructure (arising from the privatization of airports that pose an international security risk because they are operated by fund asset managers without expertise in aviation or international security), and of aviation operators and called on companies and countries to improve security in aviation.

The commitment to require the improvement of aviation safety and those who own and manage the infrastructure, is mentioned in reference to the G7 commitment to enforce the UN Convention Against Transnational Organized Crime (UNTOC) once again. The aviation industry acts, or is supposed to act, as a gatekeeper to stop transnational organized crime from using the aviation system for the movement of illegal goods and proceeds of crime. The UNTOC was implemented to deny safe haven to people who engage in transnational organized crime by prosecuting those crime where they occur, including money laundering and corruption criminal activities.

The majority of the G7 statement was in respect of a renewed commitment to also address counter terrorist financing and in addition, to require social media companies to adopt a responsible approach to publishing by stopping the publication of terrorist propaganda and material online.

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Turning a blind eye to money laundering now costs you in Canada

By Christine Duhaime | May 8th, 2017

In a surprise decision for Canada, an appellate court has reversed a lenient sentence for Jacqueline Garnett, the girlfriend of a drug dealer who was convicted of possession of proceeds of crime, and instead imposed a two-year conditional sentence, partially to be served under house arrest. While the new sentence is still light by global standards, the lower court had given the accused three years probation.

In August 2016, Ms. Garnett, was sentenced in Nova Scotia for laundering money. She banked millions of dollars for her boyfriend’s drug business, and lived off the avails of the proceeds of crime without reporting the proceeds as income or paying taxes. In her capacity as the person who banked her boyfriend’s money, Ms. Garnett washed the proceeds of crime at Canadian financial institutions.

While noting that it is illegal to receive the benefit of proceeds of crime, the lower court sentenced her to probation because the judge believed she was not likely to re-offend.

The Crown appealed the light sentence and on appeal, the appellate court held that the lower court’s decision was not appropriate, in part because it suggested that partners have a license to launder proceeds of crime.

In the case of Ms. Garnett, the court held that she knew her boyfriend was involved in illegality and was also aware that associates of theirs had been murdered for that activity. Consequently, her sentence was increased to house arrest and two year condition sentence. In increasing the sentence, the court of appeal held that a message must be sent to business and relationship partners that if you’re going to be involved in holding, moving or laundering the proceeds of crime, you can expect serious consequences.

By way of comparison, in other countries, money laundering sentencing is taken more seriously by the judiciary. Money laundering constitutes a serious national and international problem, and other countries endorse a sentencing structure that imposes substantial penalties for financial transactions which promote drug trafficking or other serious criminal activity or which obscure the origins of illicit funds.

In the US, for example a drug trafficker who is a first-time offender may be incarcerated for a 121- to 151-month period if charged and sentenced only for drug trafficking. His girlfriend would be incarcerated  for 46 to 57 months if charged and sentenced only for laundering the money from such drug trafficking.

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Lessons from the Antonio Carbone / Dream Casinos case – stay away from the Dominican Republic

By Christine Duhaime | May 2nd, 2017

No due process for Canadian businessman

According to this story in a Dominican Republic newspaper dated May 2, 2017, a Canadian citizen from Ontario, Antonio Carbone, who has been incarcerated in the Dominican Republic for over two years without a trial and without the benefit of due process, will remain incarcerated for what appears to be an indefinite period of time.

Mr. Carbone was arrested on January 25, 2015, in the Dominican Republic on an allegation of attempting to murder a Dominican foreign national, Fernando Baez Guerrero, by allegedly setting fire to Mr. Baez’ vehicle on December 1, 2014.

Canadian journalists from The Fifth Estate found out (reported here) that the allegations against Mr. Carbone in the Dominican Republic were based on what turned out to be unreliable evidence, namely inconsistent statements of alleged facts that were contradicted and not supported by the evidence.

The criminal complaint was filed by a district attorney in the Dominican Republic named Yeni Berenice Reynoso. Shortly after filing the criminal complaint, she told the media that in 90% of the organized criminal cases in the Dominican Republic (of which this is one by virtue of its connection to the Mafia (see below)), the police or the army are involved with organized crime and/or perform contract killings.

Fernando Baez Guerrero was, and remains, a manager of a chain of casinos in the Dominican Republic called Dream casinos acquired and owned by Dream Corporation, a St. Lucia company but whose shareholders and managers are Canadian, with a Canadian head office. According to corporate records filed in Canadian Courts, the shares in the casino chain are owned by Antonio Carbone and his bother Francesco Carbone. A third person, named Andrew Pajak, owns a 15% stake in the casino chain. Also according to Court documents, a fourth person, named Edward Kremblewski, has exclusively managed the financial affairs of the Dream casinos since 2011. All four are from Toronto.

Kremblewski lives in the Dominican Republic, returning to Toronto regularly, according to the testimony by Mr. Pajak, with cash taken from the casinos in the Dominican Republic to meet large expenditures in Canada, such as payroll of several full-time staff and to pay rent and such, for a large office for the Dream Corporation in Vaughn, controlled by the shareholders, the Carbone brothers and Mr. Pajak.

The gist of the criminal allegations against Mr. Carbone filed by Ms. Reynoso allegedly stem from evidence derived from the sworn statements of two men – one made by a Dominican person named Juan Infante and the other made by Mr. Baez Guerrero. Mr. Infante used to work for Mr. Carbone.

Witness #1 changes his story

According to Ms. Reynoso, Mr. Infante gave a sworn statement that he heard Mr. Carbone plotting to kill Mr. Baez and heard him say he had hired two hit men to do the job. He also gave a sworn statement that he was later physically with Mr. Carbone and heard him celebrating the burning of Mr. Baez Guerrero’s car on the night of December 1, 2014, in the Dominican Republic.

Apparently, Mr. Infante has a serious criminal record and his credibility is suspect. A criminal record, even in the Dominican Republic, indicates a person whose evidence is not to be accepted quickly because experience has shown such people not to be reliable (R. v. Corbett, SCC), a legal concept presumably familiar to Ms. Reynoso.

And indeed, Mr. Infante was not reliable. He changed his story.

He told CBC’s the Fifth Estate that the sworn statements he made are untrue. He told the Fifth Estate that he never discussed a murder plot with Mr. Carbone at any time, and never heard any of the Carbone brothers discussing a murder plot against Mr. Baez Guerrero. Mr. Infante also told the Fifth Estate that he is no longer sure on what date he is alleged to have seen and heard Mr. Carbone allegedly celebrating the car fire.

Mr. Carbone claims that he was in Canada on December 1, 2014, the day the fire to the vehicle of Mr. Baez Guerrero took place that allegedly was an attempt to murder him. According to records from the Canadian government, Mr. Carbone’s version of events is borne out.

Mr. Carbone was in Canada on the day of the alleged car bomb

In February 2016, the Canadian government through the CBSA, released records in respect of Antonio Carbone for his international travel that show that Mr. Carbone arrived at Pearson International Airport and entered Canada on the evening of November 29, 2014. They also show the airline on which he traveled, as well as the immigration officer who processed him through customs. Canada does not create exit records but Mr. Carbone has a WestJet boarding pass showing that he departed from Canada on December 2, 2014, and entered the Dominican Republic on December 2, 2014, the day after there was an alleged attempt on the life of Mr. Baez Guerrero.

The government of the Dominican Republic, and in particular, Ms. Reynoso have declined to accept the veracity of evidence from the government of Canada, in particular the CBSA. She arranged for the production of a “To Whom It Concerns” statement by a Mr. Henry Amarante Perlalta, a director of certificates for immigration for the Dominican Republic, the effect of which is to discredit the government of Canada by showing that the CBSA records on when Mr. Carbone was in Canada are false, or worse, fabricated.

Witness #2 changes his story

The Fifth Estate also discovered problems with the sworn statements of Mr. Baez Guerrero which call into question his credibility as well.

Mr. Baez Guerrero is apparently a lawyer. He swore that on December 1, 2014, as he climbed out of his car after work, a bomb exploded in his car. In this newspaper story, Mr. Baez is quoted as deposing that there was an explosion in his car and then flames. Apparently, despite exiting a car exploding by a bomb, Mr. Baez suffered no personal injuries and did not require medical attention (see this brochure from the CDC on the extent of incapacitating injuries that occur to a human hit by a car bomb).

This picture, taken minutes after the explosion of a home-made car bomb in Pakistan, is what a car bombing looks like. As a simple matter of physics, a person in the position of Mr. Baez could not have walked away injury-free from a car bombing, if a car bombing even occurred.

And indeed, Mr. Baez Guerrero, like Mr. Infante, was not reliable either, it seems, for he too changed his story.

He spoke with CBC’s the Fifth Estate in the Dominican Republic and effectively admitted that he lied to the district attorney when he had gave a sworn statement that he was in the car when it exploded by a bomb, and narrowly escaped with his life. His new version of events is that he was not in the car that was set on fire at all. He hadn’t even driven that car that day. In fact, he was in a penthouse, many floors above when the car allegedly blew up by a bomb. That explains how come he suffered no injuries from the car bombing – he made up the whole story of narrowly escaping death and the reality is he was nowhere near the car when it blew up, if it blew up at all.

$500,000 paid to Baez Guerrero

The CBC’s the Fifth Estate obtained a copy of an audio recording wherein Mr. Baez discusses being paid $500,000 by Mr. Pajak to act against the Carbone brothers that was recorded prior to the arrest of Mr. Carbone. Mr. Baez told the Fifth Estate that he did indeed receive that exact sum of money. The concern with the exchange of a significant amount of money to Mr. Baez in connection with Antonio Carbone is that it raises the issue of whether evidence was purchased – the National Post noted that there was a plan to acquire evidence to harm the Carbone brothers and land them in jail, and the offered price was, coincidentally, $500,000.

Despite the complete lack of credible evidence and the existence of credible evidence from Canada that Mr. Carbone was not in the Dominican Republic on December 1, 2014, at the time of the alleged car bomb, the district attorney is nonetheless pursuing the case of attempted murder against Mr. Carbone. On January 28,  2015, she sought and obtained a pre-trial sentence order to have Mr. Carbone incarcerated in the Dominican Republic for a term of one year. She informed the Court that on December 1, 2014, Mr. Carbone followed Mr. Baez Guerrero from the casino and then threw a bomb in his car, causing it to catch fire on the spot and when the police arrived, the car was totally destroyed.

 Mr. Carbone has been incarcerated for over 830 days on evidence that has been contradicted without a trial, in violation of his right to life, liberty and security of the person and in circumstances where the rule of law is absent. In Canada, the rule of law would prevent lawyers or prosecutors from advancing a prosecution on the basis of such evidence – presumably not in the Dominican Republic.

Second trial for shares

There is a second lawsuit in the Dominican Republic – Mr. Pajak is suing Mr. Carbone, among others, for allegedly fraudulently trying to take over Dream casinos – an odd litigation since Mr. Pajak testified in Ontario that he is a mere 15% shareholder of Dream Corporation – the remainder of which he deposed, is held by the Carbone brothers.

Third trial for a B&E

And there is a third lawsuit as well in which several people from the Dominican Republic are charged with breaking and entering the Dream casinos head office in the Dominican Republic, some with weapons, in December 2013. A hearing for that case took place on April 26, 2017, based on complaints filed by what the Court called two “victims” – Edward Kremblewski and Gianpietro Tiberio, a member of the Montreal Mafia according to the Quebec Government, who Kremblewski informed the Fifth Estate worked with him in the Dominican Republic at Dream casinos as far back as 2014. The government of the Dominican Republic, in its Notice of Hearing for this case, listed Mr. Tiberio as a person who would be testifying in Court in the case. To the extent there was a victim, it was the corporate defendant, Dream Corporation, and could not be a person.

Ontario civil litigation

These three cases in the Dominican Republic are a sub-set of a civil litigation in Ontario that is well-known internationally for a number of reasons:

  • Dream Corporation was lent $110 million by Canadian billionaire Michael DeGroot, to build a casino chain in the Dominican Republic and most of the money seems to have disappeared under the financial management of Kremblewski, a CPA;
  • After the money disappeared, Kremblewski acknowledged to the Fifth Estate that the Mafia from Montreal, were working with him at the Dream casinos in the Dominican Republic. The CBC broadcast video footage of both Vito Rizzuto, the former godfather of Montreal Mafia at one of the casinos and of Gianpietro Tiberio, who is believed to be one of the next in line to rule;
  • All the parties involved in the original loan are suing each other in Ontario on various charges related to the $110 million loan and the litigation has been protracted yet the original claimant, Mr. DeGroot, seems to have taken no further action to recover funds lost or install competent financial or casino managers to oversee the casino operations in the Dominican Republic to recover his loan; and
  • The Globe & Mail reported that a Court-appointed receiver reported that millions of dollars of corporate funds owed to Dream Corporation were used by the casino management to pay for personal expenses like dental work, lingerie, designer clothing, hair cuts, private club membership, luxury cars, travel for a girlfriend to foreign countries, vacations and the like.

In no other place in the world are casinos operated in this way with the type of conduct by management that affects the integrity of the whole gambling industry in the Dominican Republic, and is now affecting the view that foreigners hold of Canadians.

To illustrate, there are over 100 public posts like the one below that describe the way in which tourists to the Dominican Republic are ripped off at the Dream casinos, harming the Canada brand and also the Dominican brand. If you’re going on vacation, you may want to stay away from the Dominican Republic.

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Winnipeg man on welfare charged with importing Fentanyl with Bitcoin

By Christine Duhaime | April 18th, 2017

A cannabis activist has been charged with illegally importing Fentanyl from China to Canada, through Vancouver, and paying for it with Bitcoin. The Manitoba government is seeking to forfeit his assets as proceeds of crime. The defendant, Raymond Csincsa, is allegedly on welfare and alleges that the $4,780 in cash located at his home was from welfare cheques and gambling winnings. The Fentanyl was worth $14,000.

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Four indicted in US cannabis tech pump & dump scheme that allegedly scammed investors and used Canadian promoters

By Christine Duhaime | April 18th, 2017

Four people connected with a company called BioCube Inc., with connections to Canada were indicted on Friday for securities fraud and two for money laundering. They are alleged to have defrauded the public securities market by making untrue statements, omitting to make material statements and intentionally deceiving investors  - in essence, for engaging in a pump & dump scheme to rip off shareholders through what they marketed as a cannabis tech company. One of the defendants held himself out to be a “professional anti-money laundering consultant” in Cyprus.

BioCube filed statements with securities regulators that it was in the business of importing wood from Brazil, and then pivoted and filed a statement that it made batteries, then pivoted again and filed a statement in 2016 that it was now a tech company focused on infrastructure with a plan to distribute a machine to detect cannabis.

A pump & dump scheme is one whereby a group of people inflate the share price by doing things such as making false and untrue statements, not filing statements with a securities commission, obtaining shares and not reporting it, receiving finders fees and not reporting it, or failing to file press releases. In a pump & dump scheme promoters who have shares in a junior company go out and promote it illegally until the price rises and then they sell their shares. The shares usually later drop since they were held up with false information and do not recover. According to the indictment, part of the pump & dump involved concealing the beneficial owners of the shareholders of BioCube. Pump and dumps are common in Vancouver among promoters and so-called finders – which are guys who go get investments from the same players for a startup and take a finders fee, often paid under the table. Such finders used to be in mining but have ventured into tech companies. Finders are often people in securities who are not licensed or qualified as a broker and because they are not licensed or qualified, they become finders. They are required to disclose that they act as finders and are paid part of the proceeds of a financing.

Pursuant to securities law, persons who are beneficial owners of shares (who directly or indirectly have voting power or investment power of 5% or more), are required to file a registration statement to disclose their shareholdings or interests therein. The FBI alleges that BioCube structured its transactions so that the beneficial owners of the shares were hidden in order to deceive the investing public.

We use Canadian stock promoters because US promoters follow the law

During conversations that were taped by the FBI, one of the defendants recommended using Canadian stock promoters for pump and dumps  for US listed companies essentially because US promoters follow the regulations (as opposed to Canadian promoters that one assumes do not),  and that Canadian stock promoters take 30% commission on pump & dump sales of securities (without, it would appear, disclosing it). According to other recorded calls, the indicted persons allegedly used shady connections in the Dominican Republic and Panama.

We can use a Canadian website because they don’t allow the government to break in

The defendants also discussed obtaining a Canadian domain because they believed that Canadian websites prevent governments from hacking them or obtaining emails. They subsequently are alleged to have discussed laundering the proceeds of BioCube share sales by opening bank accounts in foreign countries under corporate names that were untraceable to them and then getting debit and credit cards and spending the proceeds to avoid ant-money laundering reporting and FATCA reporting.

The defendants are charged with laundering $2 million through offshore bank accounts. The four are Chris Messalas, a former securities broker previously barred from the industry by the Securities and Exchange Commission; Boris Rubizhevsky, BioCube’s former chief executive officer; attorney Michael Garnick; and Dimitros Argyros, described as an “anti-money laundering consultant.” Messalas, Rubizhevsky and Garnick were charged with securities fraud conspiracy. Messalas and Argyros were charged with money laundering conspiracy.

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Canada’s New Cannabis Act – Harsh New Offences; Money Laundering; Why Cannabis Stores Can’t Get Bank Accounts; Role of Organized Crime

By Christine Duhaime | April 17th, 2017

Canada introduced a new Cannabis law, Bill C-45, the Cannabis Act, expected to come into force in July 2018. Skip to Part 2, below, if you just want to review the new law.

Part 1 – Background on Current Law, Illegal Dispensing; Denial of Bank Accounts

Illegality of Cannabis Sales Except for Medical Purposes

Until the Cannabis Act comes into force, it is illegal to sell or have cannabis except as authorized for narrow medical purposes.  Cannabis is a prohibited drug under the Controlled Drugs and Substances Act similar to cocaine or opium (the latter are Schedule I and the former is Schedule II). Possessing cannabis illegally is an indictable offence which carries a term of incarceration of up to five years. To obtain cannabis for medical purposes involves a person receiving authorization from a doctor to buy a small amount for personal use from one of 42 federally licensed sellers, or to grow it themselves.

Stores known as “dispensaries” or “compassion clubs” in Canada are illegal, meaning they are not authorized to sell cannabis for medical or any other purposes. There is no so-called “grey” area in respect of the legality of dispensaries, cannabis stores or compassion clubs. Having a license from a City, or municipality, such as Vancouver, does not make a cannabis store or a dispensary “legal”, as municipal law does trump federal law.

Moreover, the cannabis products sold in stores, dispensaries and such are illegally supplied, and unregulated. The law in Canada does not permit stores, dispensaries and cannabis clubs to acquire cannabis supplies.

Until the Cannabis Act is brought into force, the only legal way to obtain cannabis is from one of the 42 licensed providers and only for legitimate medical purposes.

Except for the 42 licensed producers, it is illegal to advertise or promote the sale of cannabis. Promoting cannabis that is not authorized contravenes the Competition Act, among others.

Difficulty in Obtaining Bank Accounts

Cannabis storefront businesses often cannot get bank accounts and the reason is because only cannabis sold for medical purposes by one of 42 federally licensed providers is legal.

The indictable offence provisions that govern cannabis sales and distribution mean that the proceeds of sales that are illegal (occur at venues not federally licensed or regulated) are proceeds of crime, as that term is used in global money laundering law. Because they are proceeds of crime, financial transactions associated with those businesses, irrespective of the amount, are reportable to FINTRAC under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act as suspicious transactions by banks, credit unions, casinos, money services businesses, accounting firms, notaries, stock brokers and insurance companies.

It is very expensive for financial institutions to monitor, report, record and generally implement systems to comply with anti-money laundering law if they were to bank cannabis stores.

In addition, the Criminal Code of Canada makes it an offence for anyone, including banks, credit unions, directors, officers, law firms, or any entity to transfer, send, deliver, transport or deal with money that they know or believe is from the illegal sale of drugs (such as may occur if a cannabis transaction is not a licensed one). As a result, no law firm (and ergo no compliance officer at a bank) can reasonably sign off on an opinion to a bank that it can provide banking services to a cannabis store, dispensary, or compassion club that is not federally licensed.

Cannabis stores operate as all-cash businesses because they cannot get bank accounts and a typology for anti-money laundering compliance officers is large volumes of cash that cannabis dispensaries try to deposit at casinos, banks, money services businesses and such.

In this story on VICE, a person who owns a number of cannabis dispensaries alleges that a credit union called CCEC provides banking service to cannabis stores in Vancouver, despite the Criminal Code, Proceeds of Crime (Money Laundering) and Terrorist Financing Act and the Controlled Drugs and Substances Act and that the only way to accept credit cards as a merchant is to lie to an issuing financial institution (a criminal offence and an indictable offence under the Criminal Code). Lying to an issuing financial institution to obtain financial services involves lying to obtain an incorrectly coded merchant number (for example, coded as flower sales rather than drug sales) and is not recommended. In the US, officers and directors of Canadian companies who have lied to obtain merchant codes (usually in the online gambling business) have been prosecuted for money laundering and bank fraud and faced hundreds of years in jail.

It is not impossible to get a bank account in Canada for a cannabis business but it is difficult.

Filing Suspicious Transaction Reports on Cannabis Stores etc. 

People, including lawyers, cannabis entrepreneurs and others seem to be under a misapprehension that there are no suspicious transaction reports being filed to Fintrac in Canada or FinCEN in the US in respect of cannabis operations. There are numerous such filings taking place daily because, as mentioned above, the proceeds of sales from an unlicensed cannabis business is proceeds of the commission of a crime and must be reported by reporting entities. According to DSA (here), in the US, for example, between 2014 and 2015, 84% of American states filed cannabis related suspicious activity reports to FinCEN. And interestingly, there were 374 financial entities that filed including banks, credit unions, mortgage companies, stock brokers and casinos. Instances where a bank filed a suspicious transaction report include when it terminates a banking relationship with a cannabis company for anti-money laundering law purposes.

Money Muling to Vancouver

Because cannabis stores cannot get bank accounts, they move money across the country and from Canada to the US, and vice versa. In this story, the government arrested what is called a “money mule”, a person who moves money. In this case, the money was being muled allegedly for a cannabis chain called Canna Clinic. The alleged money mule was arrested with $590,000 cash (in $20 bills) being muled to Vancouver. The owner of the cannabis store allegedly informed CRA that $590,000 was being moved to Vancouver to pay its GST. The person with the money, however, told the police the money was his and he earned it selling videos. The $590,000 is subject to an action by the government for forfeiture as proceeds of crime allegedly tied to sales from the cannabis store – the cannabis store owners appear to corroborate that story by taking the position that it is for the payment allegedly of GST they owe. For the GST owed to be $590,000, as the cannabis store allegedly informed CRA, it means that the cannabis store’s gross sales in one store in Ottawa are $11.8 million every two weeks. That is not likely.

Online Prescriptions; Sale to Minors

Vancouver has stories of minors who attend at dispensaries and are sold cannabis, and of other stories of people “consulting” doctors online in a back room of a dispensary who write an online prescription for a person to buy cannabis for purported medical purposes. According to studies by the US, 11% of children aged 15 years old and older in Canada use cannabis, and for those between the ages of 15 – 24, in Canada the rate is 24%. Canada holds the record as the country with the highest percentage of minors who use cannabis.

According to this story, a former physician, Rob Kamermans, wrote over 15 prescriptions per day for cannabis over a one year period (4,000) to strangers he met on Skype across Canada. Physicians are licensed provincially, not nationally, and cannot practice medicine beyond provincial borders. He was charged with money laundering, fraud and forgery in connection with cannabis prescriptions and his medical license was revoked for incompetence.

Associations with Criminality 

Dispensaries that are not federally authorized exist in many parts of Canada pursuant to which there appears to be little municipal enforcement to shut them down until recently when the federal government appears to have mandated a national plan to raid numerous cannabis dispensaries. Those raids are continuing, resulting in some decrease in the number of cannabis stores operating. As well, judges are being asked to ensure that employees, managers and owners of cannabis stores that are arrested and prosecuted are given criminal records. Having a criminal record will mean that those people cannot enter the cannabis business under the Cannabis Act.

This story describes how in Canada a person with a criminal record who was incarcerated, is operating cannabis stores across the country. In 2015, Canada’s Criminal Intelligence Service reported that over 50% of the 657 organized criminal groups in Canada are known or suspected to be involved illegally in the cannabis trade. A Canadian government member of Parliament said that “the decision to sell or not to sell to a child is often made by a gangster.”

Since 2013, the government has been concerned over the involvement of organized crime in the supply, distribution and sales of cannabis, recently noting that transnational criminal organizations, including the Hells Angels, are “behind most of the [illegal unlicensed] dispensaries.” And according to this story, a well-known Toronto man with alleged links to organized crime was involved in the cannabis business and even formed an association of cannabis dispensers.

In addition, Canada is the primary source of cannabis sales to the US originating from BC, Ontario and Quebec.

Because cannabis is illegal in all but one country over the globe, organized crime tends to run drug and cannabis operations. In Italy, typically this is the Mafia but  there is also Chinese Mafia in Italy taking over cannabis cultivation and trafficking. The Italian authorities are also concerned with the increased evidence of terrorists, namely ISIS (the Islamic State), trafficking cannabis through North Africa and Italy, and funding terrorist activities using the financial system. In Mexico, drug cartels are adjusting to changes in historic cannabis sales. And here, the Nigerian Mafia traffic cannabis through the Ivory Coast, laundering the proceeds in bars and running prostitution services.

And now it would appear that foreigners, including Canadians, attempting to enter the US with any connection to cannabis, are apparently being denied entry to the US permanently, or deported.

US Enforcement

Several states in the US authorize medical and recreational cannabis use, although federal law prohibits it. The Trump administration has said that it will leave medical cannabis use alone but will go after recreational uses that contravene federal law.

Both Colorado and Alaska recently backed away from plans for cannabis social clubs over concern with federal enforcement. 16 people last month in Colorado were indicted for money laundering and drug trafficking of cannabis, and their bank accounts seized. Banks are concerned with indictments because they invite AML compliance reviews and often AML fines for failures to report money laundering activities.

Last week, the new US AG, Jeff Sessions, sent a memo to members of a task force focused on crime reduction and public safety asking for a review of existing policies of the enforcement of cannabis to reduce violent crime. The new Drug Czar, Tom Marino, is not in favour of medical or recreational cannabis. All signs seem to be pointing towards federal enforcement of recreational uses of cannabis, and consistent with the Executive Orders of January calling for the prosecution of members of organized crime and foreign nationals (Canadians and Mexicans in particular), engaged in the drug trade.

Bitcoin in the picture

The focus on Canada makes sense – in addition to Canada being a major source country to the US of cannabis, Canada is also a source country of fentanyl to the US, which is imported from China and paid for with Bitcoin (this US criminal complaint describes how fentanyl is imported to the US from Hong Kong and paid for with Bitcoin; here is another similar story of fentanyl being imported using Bitcoin). Here is a story of one of many Canadians, ironically a cannabis activist on welfare, who was arrested for importing $14,000 worth of fentanyl illegally into Canada from China and paid for with Bitcoin. Apparently, US law enforcement has been to Vancouver numerous times over the issue of Bitcoin and drug importations.

Part 2 –  New Cannabis Law

Purpose

Clearly the existing cannabis system in Canada seems to have significant issues that need remediation.

Against the backdrop of the above, the purposes of the Cannabis Act are clear and they include more harsh measures to protect minors and to remove organized crime from Canada’s legitimate cannabis system.

The Cannabis Act is also designed to act as a world model, meaning that Canada’s goal is to show that legalizing drugs for recreational consumption can be done in such a way as to promote and protect the integrity of the system and respect the rule of law. There have been statements that the government will allow existing cannabis dispensaries to be registered even though they operated in violation of the law. There are parallels here as well to the gambling industry which faced a similar issue. In the gambling industry in Canada (particularly British Columbia), there was zero tolerance for previous criminality to preserve integrity of Canada’s reputation in gambling but in the UK, it was handled differently. The issue is if, and how to on-board companies and persons with a history of non-compliance with federal law into a new legal regime that is designed for compliance with the law. In other words, can a non-law abiding person or company become law abiding? Even if they can, are those the people the federal government will or should reward with a licence to operate or should the rewards go to those who have no record of breaking the law? These decisions may be left to provincial governments at the end of the day. As noted above, we have been though this process in the past in the gambling industry.

The purposes of the Cannabis Act are to:

  • make it a serious criminal offence to sale cannabis to minors;
  • make it a serious criminal offence to possess, sell, distribute, export cannabis without legal permission;
  • make it a serious criminal offence to promote, advertise, label or package cannabis to appeal to minors;
  • establish regulations and a registration system for cannabis that will determine who can enter the sector; and
  • to increase the penalties for drug-related offenses connected to cannabis.

Registration to Sell, Distribute

Under the Cannabis Act, the government will establish classes of registration including for selling, transporting, distributing, delivering, testing, producing and advertising of cannabis.

Disclosure of beneficial owners

In order to be registered, a legal person must disclosure its shareholders and controlling persons, whether indirect or direct – so beneficial shareholders, investors, those who hold pledges of shares and such will be relevant.

Integrity 

In order to address integrity issues affecting the market, a person will not be registered or licensed if they are associated with criminality, such that there is a risk of cannabis under their control being diverted to organized crime or illicit markets; they make false statements or omitted material information; they contravened the Controlled Dugs & Substances Act; or there are reasonable grounds to believe they contravened an order under the Controlled Drugs and Substances Act.

Other grounds for refusal include not getting a security clearance and circumstances when it is not in the public interest to register a person. Whether formerly operating a cannabis store in violation of federal law will disqualify a company or a person from being registered (because breaking the law is not in the public interest or rewarding a company or a person for years of breaking the law), has yet to be determined by the government. But that is the key issue.

Provincial control

The Cannabis Act allows the provinces to regulate the selling and distribution of cannabis if provincial regulation is consistent with the Cannabis Act. However, like gaming control legislation, the authority to operate a cannabis business will only be provincial – a company will not be able to operate across provincial boundaries absent the provinces entering into inter-provincial agreements. Unless the regulations say something different, companies will need to register in each province to operate there.

Distribution of Cannabis

Under the Cannabis Act, it is prohibited to distribute illegal cannabis, to distribute cannabis to a person under 18-years-old or to distribute cannabis to any person above a certain amount without being registered and authorized to do so.

Possession of Cannabis

Under the Cannabis Act, it is prohibited to possess cannabis above a certain amount, or to possess illegal cannabis.

Advertising of Cannabis

Under the Cannabis Act, it is prohibited to promote cannabis, or an accessory of it, or any service associated with it by communicate information about its price, in a way that would appeal to minors, to have testimonials, or to depict people or animals, or that includes emotions, glamour, excitement, vitality or daring.

It is also prohibited to include false or misleading advertising or comments in respect of cannabis.

And it is prohibited to advertise or promote cannabis outside of Canada or to sponsor events, or name a facility after cannabis – like a hockey arena or a one-off event, like a concert.

Selling to Minors

Under the Cannabis Act, it is prohibited to sell cannabis to a minor and it is also prohibited to sell cannabis or an accessory with an appearance that is appealing to minors.

Importing / Exporting

Under the Cannabis Act, it is prohibited to import or export cannabis without authorization.

Offences

Selling, distributing, importing or exporting cannabis to a person without being registered to do so, or selling to a minor, is an indictable offence (relevant for money laundering legislation) and carries a term of incarceration of up to 14 years.

The term of incarceration for possession is up to 5 years.

Regulations

The majority of the legislation refers key provisions to regulations, which because it is delegated legislation, means that they will be drafted without parliamentary review and/or approval. The material parts of the regulations will include the registration requirements.

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Accountant explains the benefits of tax havens

By Christine Duhaime | April 7th, 2017

If you ever wondered how it is that lawyers learn about tax havens, it is from texts such as the series called “Tax Havens of the World”, written by Walter Diamond, who was an accountant at Deloitte and KPMG, and a prolific teacher of the benefits of tax havens.

“Tax Havens of the World” was updated annually until 2009, the year Mr. Diamond died. Surprisingly, Mr. Diamond started out as bank examiner but somehow wound his way into writing text books for lawyers for 25 years that promoted the use of tax havens to defeat law enforcement and government oversight.

In “Tax Havens of the World”, he writes of the many benefits and advantages of tax havens and summarizes each of them. He also writes about their usefulness and explains why lawyers, and corporations, among others, should use them. The key benefits, he writes, include:

  • to cloak foreign bank accounts in secrecy;
  • to shift investments without being taxed;
  • to give privacy to financial dealings and what your financial assets are; and
  • to have no government control.

The aim of “Tax Havens of the World” is to provide a “shopping guide” to select the best country to cloak one’s money and protect it from government control. Mr. Diamond remarked that tax havens were the target of unfair “virulent attacks” by governments and accusatory tactics by the FATF.

Each country highlighted by Mr. Diamond conveniently lists things like how to set up trusts versus foundations, how to set up companies, and the strength of its anti-money laundering enforcement, as well as what has to be disclosed to authorities if you park money in that jurisdiction.

Despite what appears to be the questionable legality of some of the advice to use tax havens to cloak banks accounts in secrecy and avoid taxes, Mr. Diamond’s text books are still available at law schools around the world. Including in British Columbia.

Mr. Diamond was obviously not a lawyer – otherwise he would have been prohibited from publishing such content – but also he entirely mis-comprehended the reach and power of global anti-money laundering and counter-terrorist financial legislation which is to make sure we can un-cloak every dollar you park in a tax haven.

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Issues in Financial Crime, Technology, RegTech, Artificial Intelligence & Machine Learning

By Christine Duhaime | March 23rd, 2017

3rd Annual Vancouver FinTech Conference

The 3rd Annual Financial Technology Conference in Vancouver takes place on May 3, 2017, which we co-sponsor. This year’s Conference focuses on “FinTech, RegTech and Financial Crime” and will cover the nexus between technology solutions to address regulation (RegTech), law, money laundering, terrorist financing, compliance, fraud, identity management, corruption, real estate tech and on-boarding / de-risking.

The idea is to advance the dialogue to deep-dive into the issues at the level where it matters – law, policy and financial transactional monitoring and explore solutions that work, including importantly, artificial intelligence and financial crime.

In the lead up to the conference, we’ll be populating this page with those topics to identify some of the issues worth exploring that the experts at the Conference can address.

Confirmed speakers are at FinTech 2017 are:

  • Fintrac
  • RCMP
  • BCLC
  • D-Wave
  • ACAMS
  • Vancouver Sun
  • Globe & Mail
  • Evolocity
  • ChatBo
  • Elk
  • Baker Marquart
  • Duhaime Law
  • BLG
  • Bryan Cave
  • Polsinelli
  • Middle East Bank

1. Issues in cyber-security

Cybercrime costs the global economy $500 billion annually and ransomware attacks rose to 4,000 per day in 2016, forcing companies to pay $400 million in ransom in Bitcoin in 2016. As the world becomes connected (20 billion devices by 2020) with robots, cars, medical equipment, phones and refrigerators all inter-connected, the threats will grow.

Americans have said plainly that we are “in the fight for our digital lives and are not winning the cyber-security war” from China to Russia, hackers are stealing intellectual property from tech firms on a daily basis, as well as financial data and health care records. In addition, Americans have said that terrorists are crowd sourcing the murder of innocent people.

Cyber criminals are winning for many reasons including that there are more criminals than law enforcement can deal with; the law has not kept up with cyber attacks and nor is there the budget to address it properly; there are serious information challenges between the public and private sectors because the private sector does not report cyber crime; there is no deterrence in the cyber realm to prevent further cyber attacks; and terrorists are using social media and end-to-end encryption on their phones to cover their tracks.

The US is also noting that critical infrastructure is a critical vulnerability with criminals now leaving their digital fingerprints on purpose as a warning.

The battlespace is –> your cellular phone.

2. Money laundering tech

Some recurring issues affecting money laundering is the lack of manpower to investigate cases. Prosecutors have found that when tips come in from the public (informants or whistle blowers) about money laundering or transnational criminal organizations, the information tends to be accurate and point law enforcement immediately to the key players and where the crimes can be detected. Those cases tend to be the ones that are pursued by law enforcement.

What type of money laundering tech is being developed, and does it include mechanisms to allow the public to report money laundering cases?

3. China and money laundering / corruption

China was slow to implement anti-money laundering controls and its regulatory effectiveness is “relatively low because [for ten years], a lot of money laundering activities were not detected and there was much capital flight from China” (Shan Xi Normal University).

From 2008 – 2013, Chinese financial institutions filed 45,000,000 suspicious activity reports annually to their FIU. Yet although it files 187 times more suspicious activity reports than the US, it averages about 7 arrests a year for money laundering.

The relevant law in China for money laundering that addresses the predicate offenses have some limitations compared to other countries. For example, the predicate offenses are drugs, gangsterism, smuggling, corruption, bribery, destruction of financial records and financial fraud, gambling and tax crimes.

The percentage of predicate offenses for money laundering in China:

  • Corruption 42.08%
  • Financial fraud 11.76%
  • Destruction of records 8.6%
  • Drugs 8%
  • Smuggling 8%
  • Tax crimes 5.88%
  • Gambling 4.98%
  • Gangsterim 2.71%

Types of customers involved in money laundering in China:

  • Politically exposed persons 57.58%
  • Private companies and their shareholders 27.7%
  • Cash management companies such as insurance, real estate and securities firms 15.15%

A report from a university on money laundering refers to Canada as a jurisdiction where politically exposed persons launder money and “abscond overseas.” Given that China has lax money laundering compliance itself, what does that mean for Canada, as a key destination?

4. De-risking

The past 15 years has been unprecedented enforcement action in connection with anti-money laundering law such that in 2014, over $15 billion in fines were levied by US regulators, causing de-risking as banks attempted to limit their risks. However, there is concern over the chilling effect this has on cross-border trade because banks are eliminating correspondent banking relationships. The fear of liability and of AML / CTF compliance is killing banks in high risk areas. According to two studies, between 31% to 60% of banks say AML / CTF costs are the reason for de-risking of correspondent banks. Other surveys 40% of banks and corporations said that AML / CTF was a significant impediment to trade finance and over 70% said they declined transactions because of AML / CTF.

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US rates Canada once again as a “major money laundering country” in annual drug report

By Christine Duhaime | March 12th, 2017

1. Canada once again a “Major Money Laundering” country

The 2017 “International Narcotics Control Strategy Report” (INCSR) published in March 2017 by the U.S. Department of State identifies Canada once again as a “major money laundering country” along with a host of mostly risky countries for financial crime such as Afghanistan, Argentina, Brazil, BVI, Cayman Islands, Cambodia, China, Columbia, Cyprus, Dominican Republic, Guernsey, Jersey, Iran, Iraq, Libya, Mexico, Macau,  Saudi Arabia, Somalia and the UK.

A “major money laundering country” is one whose banks and financial institutions allow financial transactions involving significant amounts of proceeds of crime. For several years in a row, Canada has been identified as such (see our other annual reviews here (2016), here (2014), here (2013) and here (2012)).

There is lots that is new in the 2017 INCSR for Canada, as described below, showing that the drug trade and consequently, the money laundering landscape, has changed in one year but one theme is that there are more concerns raised between Canada and China – in particular, fentanyl, proceeds of corruption landing in Canada and bulk cash smuggling.

Lots has been removed about Canada that isn’t completely justified in the sense that the needle has not moved over our record for battling, deterring and prosecuting financial crimes, and the risks identified in the earlier Reports are still relevant. However, one can get a complete view of the risks to banks and other reporting entities in a compliance sense from reading the summaries of 2012, 2013, 2014, 2016, linked above, and this 2017 summary, collectively, in preparation of a risk-assessement and on boarding purposes.

The good news though is that compared to previous INCSRs, Canada has improved and the weaknesses are more siloed.

2. What’s new in 2017 INCSR for Canada compared to 2016 report

Money laundering from tax evasion & corruption; lax conviction rate

According to the Report this year, money laundering in Canada is originating from tax evasion, corruption, as well as the usual drug trafficking, fraud, and such. And the main methods of money laundering have shifted to include Bitcoin, offshore corporations, bulk cash smuggling, money services businesses and real estate.

The Report mentions the exemption of lawyers as a deficiency in the anti-money laundering regime.

The Report says Canada should enhance enforcement and convictions for money laundering.

China

A lot was changed about China in relation to Canada this year in the Report, curiously. However, this year’s report says that the main source of proceeds of crime from China is from corruption involving state-owned enterprise and that criminals are laundering money mostly by bulk cash smuggling, fake large international trade invoices (trade-based money laundering), gambling and real estate.

Fentanyl entering Canada from China by mail

The Report states that fentanyl is originating in China and entering the US via Canada or Mexico, making Canada a source country. The fentanyl that enters Canada from China is by mail. Heroin is being altered with low-cost synthetic opioids, especially fentanyl, by drug dealers which can be 25 to 50 times more potent than heroin. Fentanyl is also pressed into pill form and sold as counterfeit prescription opioid pills. Drug takers are not aware of the large quantities of fentanyl, causing thousands of overdoes fatalities in Canada and the US.

Opium coming to Canada from Afghanistan

Afghanistan is the major supplier of opium derivatives to Canada and Europe. Insurgent groups in Afghanistan generate revenues by taxing drugs passing through regions they control [before the drugs reach Canada].

Meth produced in large quantities in Canada

Alpha-phenylacetoacetonitrile, the pre-cursor for methamphetamine, has been found in large quantitates in Canada.

Stay away from the Dominican Republic

Perhaps as a sobering thought for Canadians not to visit the Dominican Republic, the Report says that there is corruption in the Dominican Republic among the military and law enforcement agencies and it remains a significant impediment to law enforcement efforts, noting that the prosecution of corrupt officials rarely happens. Moreover, the judiciary is politicized and accused of corruption. According to the Report, the legal system offers little recourse to those who lack money or influence (e.g., can’t buy their way out). The FIU is not effective but if there is some good news, it is that the Report notes that the US has been effective in extracting criminals from the Dominican Republic to the US for prosecution.

Canada used for Laundering Funds for a Listed Terrorist Group and for Organized Criminal Gangs from China, Mexico & Columbia

Also noted was that a transnational organized crime group affiliated with Altaf Khanani from Pakistan uses Canada and other countries such as UAE and Australia, to launder billions of dollars in proceeds of crime every year for crime gangs from China, Columbia, Mexico and for the listed terrorist organization, Hezbollah. According to the Report, Altaf Khanani has also moved terrorist funds for the Taliban.

3. Key Findings

Volume 1 - The key findings of Volume 1 on the drug trade vis a vis Canada are:

  • Large amounts of fentanyl from China enter Canada by mail.
  • Canada is a major producer of precursor chemicals used in the production of illicit narcotics, along with Afghanistan, Bangladesh, Brazil, China, Columbia, Dominican Republic, Egypt, Iraq, Mexico and several other countries.
  • Cannabis destined for the US is produced mostly in British Columbia, Quebec and Ontario.
  • Canada is a primary source country of high potency marijuana and estasy to the US.
  • Canadian synthetic drugs and amphetamine stimulants are exported to the US, Asia and Australia.
  • Cocaine continues to enter Canada from South America and Mexico, some of which is transited through the US.

Volume 2 - The key findings in respect of money laundering  in Volume 2 for Canada are:

  • Money laundering activities in Canada are primarily from tax evasion, corruption, illegal drug trafficking, fraud, piracy and tobacco smuggling.
  • Laundering methods in Canada have changed slightly and now involve smuggling, money services businesses, casinos, real estate, wire transfers, offshore companies, credit cards and digital currencies like Bitcoin.
  • Also noted was that bulk cash smuggling into Canada is “widespread”.
  • Gangs from Vietnam are a significant source of illicit funds.
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SEC denies approval for Bitcoin Trust over multiple market integrity issues

By Christine Duhaime | March 11th, 2017

The Securities Exchange Commission has denied an application for the creation of a Bitcoin Trust based primarily on issues related to preservation of the integrity of the capital markets.

The decision is what was expected from a financial crime and integrity perspective.

The decision can be read here. The gist of the negative findings of fact that formed the basis of the decision are that:

  • There is no regulation or oversight for the worldwide market of exchanges used to trade Bitcoin; 
  • There are few (if any) Bitcoin exchanges anywhere that are regulated for fiduciary and custodial activities);
  • The price of Bitcoin is dominated by activities in China; and
  • The bulk of trading of Bitcoin occurs outside of the US where there is no regulation in place.

It remains true that Bitcoin can be bought, sold and transacted upon with complete anonymity and thus, its activity is inconsistent and irreconcilable with the obligations for transparency and integrity of the capital markets.

Unless we are dealing with a closed micro exchange (which no one has yet established), it is impossible in an environment of anonymous wallet holders, to comply with anti-money laundering and counter-terrorist financial law, or sanctions law.

Bitcoin exchanges have also said on many occasions that they are unable to freeze any account of Bitcoin that is suspected, or know to be, terrorist property because they allege that only a holder of a Bitcoin wallet can access and control its activities. For example, they go further and allege that if a private key is lost by a wallet holder, there is no way to recover the funds invested to buy Bitcoin, and thus, for capital markets, this also an impediment to market regulation as it results in unjust enrichment of the Bitcoin exchanges and it makes the exchanges incapable of complying with terrorism and sanctions laws prohibiting the dealing of terrorist property.

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