Participating in a Criminal Organization (Offence)

From Canadian Criminal Law Notebook
Jump to: navigation, search


Participating in a Criminal Organization
s. 467.11, 467.12, 467.13 and 467.111(a) or (b) of the Crim. Code
Election / Plea
Crown Election Indictment
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))*
Fine (734)*
Fine + Probation (731(1)(b))*
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)

(* varies)
Minimum 6 months incarceration (467.111)
Maximum 5, 14 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to participating in a criminal organization are found in Part XIII of the Criminal Code relating to "Attempts — Conspiracies — Accessories".

Pleadings
Offences under s. 467.11, 467.12, 467.13 and 467.111(a) or (b) are straight indictable. There is a Defence election of Court under s. 536(2).

Release

When charged under s. 467.11 or 467.111(a) or (b), the accused cannot be given an attendance notice or a summons without arrest, nor can he be released by an arresting officer. He can be released by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

When charged under s. 467.12 or 467.13, the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

Charges under s. 467.11, 467.111, 467.12 or 467.13, or "a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization" are reverse onus offences under s. 515(6)(a) regardless of the circumstances.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Designations

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Participation in activities of criminal organization
467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) the criminal organization actually facilitated or committed an indictable offence;
(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;
(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or
(d) the accused knew the identity of any of the persons who constitute the criminal organization.

Factors
(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;
(b) frequently associates with any of the persons who constitute the criminal organization;
(c) receives any benefit from the criminal organization; or
(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.

2001, c. 32, s. 27.


CCC

Commission of offence for criminal organization
467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.
2001, c. 32, s. 27.


CCC

Instructing commission of offence for criminal organization
467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.
Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) an offence other than the offence under subsection (1) was actually committed;
(b) the accused instructed a particular person to commit an offence; or
(c) the accused knew the identity of all of the persons who constitute the criminal organization.

2001, c. 32, s. 27.


CCC

Recruitment of members by a criminal organization
467.111 Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this Act or any other Act of Parliament, recruits, solicits, encourages, coerces or invites a person to join the criminal organization, is guilty of an indictable offence and liable,

(a) in the case where the person recruited, solicited, encouraged or invited is under 18 years of age, to imprisonment for a term not exceeding five years, and to a minimum punishment of imprisonment for a term of six months; and
(b) in any other case, to imprisonment for a term not exceeding five years.

2014, c. 17, s. 9.


CCC

Proof of the Offences

Proving Participation in activities of criminal organization under s. 467.11 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "by act or omission, participates in or contributes to any activity of the criminal organization";
  5. the prohibited conduct was "for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence"; and
  6. the culprit did the prohibited conduct "wilfully".

Proving Commission of offence for criminal organization under s. 467.12 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "commits an indictable offence under tis or any other Act or Parliament"; and
  5. the offence was committed "for the benefit of, at the direction of, or in association with, a criminal organization".

Proving Instructing commission of offence for criminal organization under s. 467.13 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament";
  5. the culprit is a member of "criminal organization";
  6. the prohibited conduct was "for the benefit of, at the direction of, or in association with, the criminal organization"; and
  7. the prohibited conduct was done "knowingly".

Proving Recruitment of members by a criminal organization under s. 467.111 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "recruits, solicits, encourages, coerces or invites a person to join the criminal organization";
  5. the person is under the age 18 years (aggravating factor); and
  6. the prohibited conduct was "for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this Act or any other Act of Parliament";

Interpretation of the Offence

The "focus on the offence is on the intention to participate or contribute and the foreseeable consequences of that participation or contribution".[1]

  1. R v Mastop, 2013 BCCA 494 (CanLII) leave refused

"In association"

Where membership in the criminal organization is the "reason why the offence is undertaken" or if it "assists in the commission of the offence", then it can be concluded that the offence was undertaken "in association with the organization".[1]

  1. R v Drecic, 2011 ONCA 118 (CanLII) at paras 3 to 4

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties
Offences under s. 467.11, 467.12, 467.13, 467.111 are straight indictable. The maximum penalty is 5 years incarceration under s. 467.11, 467.111(a) or (b), 14 years incarceration under s. 467.12, or life under s. 467.13..

Minimum Penalties
For offences under s. 467.111(a) there is a mandatory minimum penalty of 6 months incarceration.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 467.11 or 467.111(b) N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 467.12, 467.13 N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 467.111(a) N/A X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 467.11 or 467.111(b), all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

If convicted under s. 467.12, 467.13 a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 467.12, 467.13 are ineligible for a conditional sentence order under s. 742.1(d), as it is a terrorism offence or criminal organization offence, when prosecuted by indictment, for which the maximum term of imprisonment is 10 years or more.

Offences under s. 467.111(a) have mandatory minimums. There are no discharges, suspended sentences, stand-alone fines, or conditional sentences available.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Consecutive Sentences

Sentences to be served consecutively
467.14 A sentence imposed on a person for an offence under section 467.11, 467.111, 467.12 or 467.13 shall be served consecutively to any other punishment imposed on

the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is

imposed on the person for an offence under any of those sections.
2001, c. 32, s. 27; 2014, c. 17, s. 10.


CCC

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 467.11, 467.111, 467.12, 467.13
  • For offences under s. 467.11, 467.111, 467.12, 467.13, as listed under s. 487.04(a.1) to (c.01), (c.03) or (d), a DNA Order is a presumptive mandatory order as a primary designated offence under s. 487.051(2), but the judge may exempt the offender if it is established that "the impact of such an order on their privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders."

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

See Also