Participating in a Criminal Organization (Offence)
| 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 (*) |
| Indictable Dispositions | |
| Avail. Disp. |
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| 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
| Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
|---|---|---|---|---|---|
| s. 467.11, 467.12, 467.13 and 467.111(a) or (b) | Template:ReleaseProfile-BailOnly |
When charged under s. 467.11 or 467.111(a) or (b), the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
Template:ReleaseOption-Indictable
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 criminal or regulatory prosecutions, 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.
- Offence Designations
| Offence(s) | Wiretap Eligible s. 183 |
Dangerous Offender Designated Offence s. 752 |
Serious Personal Injury Offence s. 752 |
AG Consent Required | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 467.11, 467.12, 467.13 and 467.111(a) or (b) | {{}} | {{}} | {{}} | {{}} |
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
- (a) an indictable offence and liable to imprisonment for a term of not more than five years; or
- (b) an offence punishable on summary conviction.
- Prosecution
(2) In a prosecution for an offence under subsection (1) [participation in activities of criminal organization], 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; 2019, c. 25, s. 184.
[annotation(s) added]
- 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.
- 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) [Commission of offence for criminal organization – offence], 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.
[annotation(s) added]
- 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) [instructing commission of offence for criminal organization – offence], it is not necessary for the prosecutor to prove that
- (a) an offence other than the offence under subsection (1) [instructing commission of offence for criminal organization – offence] 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.
[annotation(s) added]
Draft Form of Charges
| Pre-ambles | ||
|---|---|---|
| "THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR | ||
| "AND FURTHER at the same time and place aforesaid, he [or she]..." | ||
| Code Section | Subject of Offence | Draft Wording |
| "..., contrary to section XXX of the Criminal Code. |
Proof of the Offences
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Proving Participation in activities of criminal organization under s. 467.11 should include:
Proving Commission of offence for criminal organization under s. 467.12 should include:
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Proving Instructing commission of offence for criminal organization under s. 467.13 should include:
Proving Recruitment of members by a criminal organization under s. 467.111 should include:
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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]
- Criminal Organization
- ↑
R v Mastop, 2013 BCCA 494 (CanLII), per Stromberg-Stein JA (3:0) 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]
- ↑
R v Drecic, 2011 ONCA 118 (CanLII), per curiam (3:0), at paras 3 to 4
"Facilitation"
467.1
...
- Facilitation
(2) For the purposes of this section, section 467.11 [participation in activities of criminal organization] and 467.111 [recruitment of members by a criminal organization], facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
...
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.
[annotation(s) added]
Parties
467.1
...
- Commission of offence
(3) In this section and in sections 467.11 to 467.13 [offences relating to criminal organizations], committing an offence means being a party to it or counselling any person to be a party to it.
...
[annotation(s) added]
Participation of Third Parties
- 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
- 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 incarceration 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 |
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| s. 467.11 or 467.111(b) | N/A |  |
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| s. 467.12, 467.13 | N/A |  |
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| s. 467.111(a) | N/A | |
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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 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization] 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.
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Ancillary Sentencing Orders
- Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 467.11, 467.111, 467.12, 467.13 |
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- General Sentencing Orders
| Order | Conviction | Description |
|---|---|---|
| Non-communication order while offender in custody (s. 743.21) | any | The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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 His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| 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(1) 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. NB: does not apply to summary offences. |
Record Suspensions and Pardons
Convictions under s. 467.11, 467.111, 467.12, 467.13 are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.