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.


CCC

Sections 467.1 and 467.12 do not violate s. 7 of the Charter for being vague or overbroad.[1]

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


Criminal Organization Offence

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

(a) an offence under section 467.11, 467.111, 467.12 or 467.13, 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.


CCC

"serious offence"

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


CCC

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.
...



  1. R v Lindsay, 2009 ONCA 532 (CanLII)

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] Proof of direct control of the organization is a high standard.[2]

Factors to consider whether the group is a criminal organization include: [3]

  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.

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".[4]

In 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 crowd to set out the theory of its case detailing this.[5]

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.[6]

  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 Giles, 2008 BCSC 367 (CanLII)
  3. R v Lindsay, 2005 CanLII 24240 (ON SC) app'd in 2009 ONCA 532 (CanLII)
  4. R v Venneri, 2012 SCC 33 (CanLII) at para 28 to 29
  5. R v Beauchamp, 2008 CanLII 51934 (ON SC)
  6. 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