Criminal Organizations

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General Principles

A criminal organization is defined in s. 467.1 of the Criminal Code:

467.1 (1)
...
“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.


...
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.


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Purpose of Legislation
The purpose of the criminal organization provisions is to "identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members".[1]

Sections 467.1 and 467.12 do not violate s. 7 of the Charter for being vague or overbroad.[2]

s. 2
...
“criminal organization” has the same meaning as in subsection 467.1(1);
...


Dangers of Criminal Organizations
Criminal organizations are dangerous as collective action "carries with it advantages to criminals". It allows them to "develo[p] specializations and dividing labour... fostering trust and loyalty ...sharing customers, financial resources, and insider knowledge... and, in some circumstances, develo[p] a reputation for violence".[3]

The organization benefits to offenders as they can "acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community".[4]

Criminal Organization Offence

s. 2
...
“criminal organization offence” means

(a) an offence under section 467.11 [ Enhancing a criminal organization ], 467.111 [Recruitment of members by a criminal organization], 467.12 [Committing for the benefit of a criminal organization] or 467.13 [Instruct the commission of an offence for a criminal organization], or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, or
(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);


...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 25, s. 2.
[annotations added]


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  1. R v Venneri, 2012 SCC 33 (CanLII) at para 40 ("It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of “criminal organization” adopted by Parliament. ")
  2. R v Lindsay, 2009 ONCA 532 (CanLII)
  3. Venneri, supra at para 36
  4. Venneri, supra at para 36

"serious offence"

s. 2
...
"serious offence" has the same meaning as in subsection 467.1(1);
...


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Definitions
467.1 (1) The following definitions apply in this Act.
...
"serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
...
Regulations
(4) The Governor in Council may make regulations prescribing offences that are included in the definition “serious offence” in subsection (1).
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.



History

The provisions relating to criminal organizations was first brought in 1997. The definition proved too narrow and so were expanded in 2001.[1]

  1. R v Beauchamp, 2015 ONCA 260 (CanLII), at para 145

Proof of Criminal Organization

Evidence must establish that the group is a criminal organization. It must be established on a case-by-case basis.[1]

Courts must take a flexible approach, considering that criminal organizations "have no incentive to conform to any formal structure".[2]


Indicia of Organization
Stereotypical features including territoriality, hierarchy, exclusive membership and violence are indicia but are not necessary.[3]

When considering structure of the organization, Courts should not be limited "to the stereotypical model of organized crime".[4]

Factors to consider whether the group is a criminal organization include: [5]

  1. rules between the men,
  2. defined roles and structure,
  3. communication between the participants,
  4. actual or pending material benefit to the parties,
  5. an organizational structure that promotes the commission of offences.

Continuity
Continuity will not exist where the criminal enterprise appears only to exist for the purpose of accomplishing a single scheme.[6]

Flexible Approach
The courts should not be rigid in applying the definition and must use a purposive approach. Criminal organizations have no incentive to have a formal structure and tend to be flexible. However, "some form of structure and degree of continuity are required".[7]

There must be at least some "structure", "degree of continuity" and "coordination".[8]

Disclosure
When a charge is alleging "criminal organizations" the accused is entitled to the particulars of the identity of the criminal organization and its members. The judge may order the Crown to set out the theory of its case detailing this.[9]


The definition can also apply to small drug operations where there is "division of labour, temporal continuity, and an intention to advance illegal goals through the organization.[10]

The meaning of "criminal organization" can also apply to conventional "street gangs".[11] The issue will depend on the degree of organizaiton.[12]

Types of Evidence
Crown is permitted to adduce evidence of a co-accused's guilty pleas to various criminal offences, except for "criminal organization" offences.[13]

  1. R v Ciarniello, 2006 BCSC 1671 (CanLII)
    R v Kirton, 2007 MBCA 38 (CanLII)
    See also Riley, 2009 CanLII 15450 (ON S.C.)
  2. R v Venneri, 2012 SCC 33 (CanLII) at para 28
  3. Venneri, ibid. at paras 37 to 38
    R v Saikaley, 2017 ONCA 374 (CanLII), at para 120
  4. Venneri, supra at para 41
  5. R v Lindsay, 2005 CanLII 24240 (ON SC) app'd in 2009 ONCA 532 (CanLII)
  6. e.g. see R v Kwok, 2015 BCCA 34 (CanLII), 320 C.C.C. (3d) 212 - group of 5 accuse conspired to import ketamine. Offence was an isolated scheme.
  7. Venneri, supra at para 27 to 29
  8. Venneri, supra at paras 29 and 30
  9. R v Beauchamp, 2008 CanLII 51934 (ON SC)
  10. Saikaley, supra at para 121
  11. R v Aurélius, 2007 QCCQ 227 (CanLII)
  12. Aurelius, ibid.
  13. R v Riley, 2009 CanLII 15450 (ON SC)
    R v Poitras, [2002] J.Q. No. 1164 (S.C.) (*no link)

Effect

Several offences require there is a criminal organization:[1]

  1. Enhancing a criminal organization (s. 467.11)
  2. Committing for the benefit of a criminal organization (s.467.12)[2]
  3. Instruct the commission of an offence for a criminal organization (s.467.13)

Others are modified by the existence of a criminal organization:

  1. Conspiracy (s.465)
  2. Counselling (s.22)
  3. Accessory after the fact (s.23)
  4. Possessing explosives for a criminal organization (s.82(2))
  5. Intimidating the justice system and journalists (s.423.1)

Where an offence is found to be a criminal organization offence (s.2):

  • the penalties will be consecutive (s.467.14)
  • the wiretap powers are expanded[3]
  • there is a reverse onus on bail (s. 515(6)(a)(ii)
  • presumption of 1st degree murder in a murder charge (s.231(6.1))
  1. see s. 2 "criminal organization offences"
  2. Drecic, 2011 ONCA 118 (CanLII)
  3. longer authorization (s.186.1 and 196), no need for "investigative necessity" (s. 185(1.1) and 186(1.1))

Participating in Organized Crime

Crown Prosecution

Section 467.2(1) provides jurisdiction to the Attorney General of Canada to conduct certain prosecutions relating to criminal organizations. This does not affect however the authority of the provincial Crown from conducting such prosecutions as well.[1]

  1. See s. 467.2(2)

See Also