View source for Criminal Organizations

{{Currency|January 2018}}
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==General Principles==

A criminal organization is defined in s. 467.1 of the Criminal Code:
{{quotation2|
467.1 (1) The following definitions apply in this Act.<Br>
'''"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.
{{ellipsis}}
{{removed|(2), (3) and (4)}}
{{LegHistory90s|1997, c. 23}}, s. 11; 
{{LegHistory00s|2001, c. 32}}, s. 27; 
{{LegHistory10s|2014, c. 17}}, s. 8.
|{{CCCSec2|467.1}}
|{{NoteUp|467.1|1}}
}}

; 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."<ref>
{{CanLIIRP|Venneri|frxxp|2012 SCC 33 (CanLII)|286 CCC (3d) 1}}{{perSCC-H|Fish J}}{{atL|frxxp|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. ")<br>
</ref>

Sections 467.1 and 467.12 do not violate s. 7 of the Charter for being vague or overbroad.<ref>
{{CanLIIRP|Lindsay|245n7|2009 ONCA 532 (CanLII)|245 CCC (3d) 301}}{{perONCA|MacPherson JA}}
</ref>

{{quotation2|
s. 2<br>{{Ellipsis}}
'''"criminal organization"''' has the same meaning as in subsection 467.1(1) {{AnnSec4|467.1(1)}};
<br>
{{ellipsis}}
{{History-S2}}
{{Annotation}}
|{{CCCSec2|2}}
|{{NoteUp|2}}
}}

; 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{{ellipsis1}} fostering trust and loyalty {{ellipsis1}}sharing customers, financial resources, and insider knowledge{{ellipsis1}} and, in some circumstances, develo[p] a reputation for violence."<ref>
{{supra1|Venneri}}{{atL|frxxp|36}}<br>
</ref>

The organization benefits to offenders as they can "acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community."<ref>
{{supra1|Venneri}}{{atL|frxxp|36}}<br>
</ref>

; Criminal Organization Offence
{{quotation2|
2 In this Act,<br>
{{ellipsis}}
'''"criminal organization offence"''' means
:(a) an offence under section 467.11 {{AnnSec4|467.11}}, 467.111 {{AnnSec4|467.111}}, 467.12 {{AnnSec4|467.12}} or 467.13 {{AnnSec4|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);
{{Ellipsis}}
{{Annotation}}
{{History-S2}}
|{{CCCSec2|2}}
|{{NoteUp|2}}
}}

{{reflist|2}}
==="serious offence"===
{{quotation2|
2 In this Act,<br>
{{ellipsis}}
'''"serious offence"''' has the same meaning as in subsection 467.1(1) {{AnnSec4|467.1(1)}};<br>
{{ellipsis}}
{{History-S2}}
{{Annotation}}
|{{CCCSec2|2}}
|{{NoteUp|2}}
}}

{{quotation2|
; Definitions
467.1 (1) The following definitions apply in this Act.
<br>{{ellipsis}}
'''"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. <br>
{{removed|(2) and (3)}}
; Regulations
(4) The Governor in Council may make regulations prescribing offences that are included in the definition “serious offence” in subsection (1) {{AnnSec4|467.1(1)}}.
<br>
{{LegHistory90s|1997, c. 23}}, s. 11; 
{{LegHistory00s|2001, c. 32}}, s. 27; 
{{LegHistory10s|2014, c. 17}}, s. 8.
{{Annotation}}
|{{CCCSec2|467.1}}
|{{NoteUp|467.1|1|4}}
}}

{{reflist|2}}

===History===
The provisions relating to criminal organizations was first brought in 1997. The definition proved too narrow and so were expanded in 2001.<ref>
{{CanLIIRP|Beauchamp|gh77w|2015 ONCA 260 (CanLII)|326 CCC (3d) 280}}{{TheCourtONCA}}{{atL|gh77w|145}}<br>
</ref>

{{reflist|2}}

==Proof of Criminal Organization (Evidence)==

Evidence must establish that the group is a criminal organization. It must be established on a case-by-case basis.<ref>
{{CanLIIRP|Ciarniello|1q08j|2006 BCSC 1671 (CanLII)|147 CRR (2d) 351}}{{perBCSC|Ehrcke J}}<br>
{{CanLIIRP|Kirton|1r4c0|2007 MBCA 38 (CanLII)|219 CCC (3d) 485}}{{perMBCA|Scott CJ}}<br>
See also {{CanLIIRP|Riley|231l2|2009 CanLII 15450 (ON SC)|246 CCC (3d) 552}}{{perONSC|Dambrot J}}
</ref>

Courts must take a flexible approach, considering that criminal organizations "have no incentive to conform to any formal structure."<ref>
{{CanLIIRP|Venneri|frxxp|2012 SCC 33 (CanLII)|286 CCC (3d) 1}}{{perSCC-H|Fish J}}{{atL|frxxp|28}}<br>
</ref>

; Indicia of Organization
Stereotypical features including territoriality, hierarchy, exclusive membership and violence are indicia but are not necessary.<ref>
{{ibid1|Venneri}}{{atsL|frxxp|37| to 38}}<br>
{{CanLIIRP|Saikaley|h3p4c|2017 ONCA 374 (CanLII)|348 CCC (3d) 290}}{{TheCourtONCA}}{{atL|h3p4c|120}}<br>
</ref>

When considering structure of the organization, Courts should not be limited "to the stereotypical model of organized crime."<ref>
{{supra1|Venneri}}{{atsL|frxxp|41}}<br>
</ref>

Factors to consider whether the group is a criminal organization include:
<ref>
{{CanLIIRP|Lindsay|1l4qm|2005 CanLII 24240 (ON SC)|OTC 583}}{{perONSC|Furest J}} app'd in {{CanLII|245n7|2009 ONCA 532 (CanLII)}}{{perONCA|MacPherson JA}}</ref>
#rules between the men, 
#defined roles and structure, 
#communication between the participants, 
#actual or pending material benefit to the parties, 
#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.<ref>
e.g. see {{CanLIIRP|Kwok|gg3v8|2015 BCCA 34 (CanLII)|320 CCC (3d) 212}}{{perBCCA|Bennett JA}} - group of 5 accuse conspired to import ketamine. Offence was an isolated scheme.
</ref>

; 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."<ref>
{{supra1|Venneri}}{{atsL|frxxp|27| to 29}}</ref>

There must be at least some "structure", "degree of continuity" and "coordination."<ref>
{{supra1|Venneri}}{{atsL|frxxp|29| and 30}}<br>
</ref>

; 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.<ref>
{{CanLIIRx|Beauchamp|214rk|2008 CanLII 51934 (ON SC)}}{{perONSC|R Smith J}}
</ref>

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.<ref>
{{supra1|Saikaley}}{{atL|h3p4c|121}}<br>
</ref>

The meaning of "criminal organization" can also apply to conventional "street gangs."<ref>
{{CanLIIRP|Aurélius|1qd31|2007 QCCQ 227 (CanLII)|RJQ 426}}{{perQCCQ|Bonin J}}<br>
</ref>
The issue will depend on the degree of organizaiton.<ref>
{{ibid1|Aurelius}}<br>
</ref>

; 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.<ref>
{{CanLIIRP|Riley|231l2|2009 CanLII 15450 (ON SC)|246 CCC (3d) 552}}{{perONSC|Dambrot J}}<br>
{{CanLIIR-N|Poitras|, [2002] J.Q. No 1164 (S.C.)}}<br>
</ref>

; Propensity Evidence
General propensity evidence that would otherwise be inadmissible would be admissible for the purpose of establishing a criminal organization.<ref>
{{CanLIIRP|Terezakis|1s59x|2007 BCCA 384 (CanLII)|223 CCC (3d) 344}}{{perBCCA|Mackenzie JA}}{{atL|1s59x|46}} ("Criminal organization offences make evidence of general propensity and bad character probative that would otherwise be excluded as prejudicial. No doubt such evidence will present challenges for jury instruction in trials of criminal organization offences.")<br>
</ref>

; Dual Purpose Organizations
The purpose of the group does not have to have a primarily or exclusively criminal. There is little purpose is "measuring" the proportion of legitimate vs criminal activity since there is usually not good book-keeping for criminal activity.<ref>
{{CanLIIRP|Beauchamp|gh77w|2015 ONCA 260 (CanLII)|326 CCC (3d) 280}}{{TheCourtONCA}}<br>
</ref>

{{reflist|2}}

==Effect==
Several offences require there is a criminal organization:<ref>see s. 2 "criminal organization offences"</ref>
# [[Participating in a Criminal Organization (Offence)|Enhancing a criminal organization]] (s. 467.11)
# Committing for the benefit of a criminal organization (s.467.12)<ref>
{{CanLIIRP|Drecic|2fp9b|2011 ONCA 118 (CanLII)|276 OAC 198}}{{TheCourtONCA}}</ref>
# Instruct the commission of an offence for a criminal organization (s.467.13)

Others are modified by the existence of a criminal organization:
# [[Conspiracy (Offence)|Conspiracy]] (s.465)
# [[Counselling]] (s.22) 
# [[Attempts and Accessories After the Fact (Offence)|Accessory after the fact]] (s.23) 
# Possessing explosives for a criminal organization (s.82(2))
# [[Intimidation of a Justice System Participant (Offence)|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<ref>longer authorization (s.186.1 and 196), no need for "investigative necessity" (s. 185(1.1) and 186(1.1))</ref>
* 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))

{{reflist|2}}

==Participating in Organized Crime==
* [[Participating in a Criminal Organization (Offence)]]

==See Also==
* [[Conspiracy (Offence)]]
* [[Liability of Organizations]]