Criminal Organization Offences

Henry Waldock
Last updated:   2017.04.26

What is a "Criminal Organization"?

Defined in s.467.1:

• a "group"
• "however organized"
  
• of 3 or more persons inside or outside Canada
• not randomly assembled for the commission of a single offence
  
• a main purpose or activity of the group is facilitating and committing serious crime
• for the benefit of the group of members of it

"Facilitating" crime does not require knowledge of the specific offences committed.
"Serious crime" is anything punishable by 5 years or more, or other offences listed in regulations.

"however organized" means there must be some organization or structure to the group, but the legislation does not require stereotypical gang or crime-family power structures.  Venneri 2012 SCC 33.  It's not just a group of people who commit a crime together, even if committing the crime takes a long time. Kwok, 2015 BCCA 34

"a main purpose" need not be the primary purpose.  A commercial enterprise which makes legal and illegal sales may be a "criminal organization" even if its legal sales outnumber its illegal ones.  "Serious ongoing criminality is still serious ongoing criminality even it is camouflaged under a cover of non-criminal activity, however quantitatively significant that non-criminal activity may be." Beauchamp, 2015 ONCA 260.

What are the Offences?

467.11 "Enhance"

• Knowingly
• By act or omission
  
• Participate in or contribute to
• any activity of a criminal organization
• for the purpose of enhancing
• the ability of the criminal organization
• to facilitate or commit an indictable offence

Penalty: 5 years

467.111 "Recruit"

• for the purpose of enhancing
• the ability of a criminal organization to facilitate or commit an indictable offence
• recruits, solicits, encourages, coerces or invites
• a person
• to join the criminal organization

Penalty: 5 years

467.12 "Commit"

• commit an indictable offence
• for the benefit of, at the direction of, or in association with
• a criminal organization
• (No requirement that the accused know the identities of the people in the criminal organization)

Penalty: 14 years

The criminal organization does not have to be “directly involved” in the underlying offence or play a “direct and integral role in it”.  Drecic, 2011 ONCA 118.

A person may be convicted of this offence even if they are not a member of the criminal organization, so long as they commit offences for the benefit of an organization they know about.  Venneri 2012 SCC 33

467.13 "Instruct"

• Member of criminal organization
• instructs
• any person
• to commit an offence
• for the benefit of / at the direction of / in association with
• the criminal organization
• (offence need not actually be committed)
• (the soldier need not be identified)
• (the accused need not know who all the other members of the organization are)

Penalty: up to life

Other offences

Conspiracy (s.465), counselling (s.22) or accessory after the fact (s.23) to these offences. (See definition in s.2 "criminal organization offences")

Possessing explosives for a criminal organization.  s.82(2)

Intimidating the justice system and journalists.  s.423.1

What's the Advantage?

• All the jail terms must be served consecutively to any regular crimes committed. s.467.14
  
• Long wiretap authorization periods - up to one year s.186.1 and delay of notice up to 3 years s.196
  
• No "investigative necessity" requirement for wiretap.  s.185(1.1), s.186(1.1)
• Proceeds of crime eligibility s.462.37
  
• Reverse onus in a bail hearing s.515(6)(a)(ii)
• Murders committed for Criminal Organizations are automatically 1st degree. s.231(6.1).

What are the Disadvantages?

Every time you allege a criminal organization offence, you need evidence that the group is a criminal organization.  It is not sufficient that in a different case, a judge somewhere found that a group by the same name was a criminal organization.  In every case, the prosecution must prove again that the organization was a criminal one.  Ciarniello 2006 BCSC 1671;  Kirton 2007 MBCA 38.

In Riley, 2009 CanLII 15450 (ON S.C.), the court wouldn't even admit in evidence the transcripts of the guilty pleas of the other members of the criminal organization.  The Crown had to prove, all over again, that those guys committed crimes for the benefit of the organization.

Proving that a principal directed or controlled a criminal offence requires clear evidence.  The guys at the top are careful, and savvy to law enforcement's reliance on wiretap.  Mr Giles, 2008 BCSC 367, an admitted Hell's Angel, was recorded at a club meeting advocating expansion of Vancouver's East End Chapter into Kelowna.  The evidence established that he was involved in crime generally, yet it did not prove his direction or control over the specific drug offences charged.  Therefore, the evidence failed to establish that he instructed it, and he was acquitted.

Constitutionality

This legislation survived constitutional attack more than once:

R. v. Smith 2006 SKQB 132 found that ss. 467.12, 467.13 and 467.14 are all constitutional, and not vague.

R. v. Accused No. 1 and Accused No. 2, 2005 BCSC 1727 (B.C.S.C.) found the definition of "criminal organization" in s.467.1 rendered s.467.14 unconstitutionally vague.  This decision was overturned in R. v. Terezakis, 2007 BCCA 384.

In R. v. Lindsay, 2009 ONCA 532, the court found s. 467.1 and 467.12 to be constitutional.

R. v. Speak (Ont S.C.J.) "In association with" requires evidence.  A "criminal organization" can be a group of three drug traffickers who work together.

Papequash 2004 SKCA 74

The relaxed standards for wiretap when investigating criminal organization offences survived constitutional challenge.  Doiron 2007 NBCA 41; Lucas, 2014 ONCA 561

s.467.11(2)(b), relieves the Crown of the obligation of proving that the accused's efforts to enhance the criminal organization were successful.  Constitutional: R. v. Beauchamp, 2009 CanLII 37720 (ON S.C.).