On February 9, 2009, the House of Commons Standing Committee on
Justice and Human Rights (the Committee) adopted the following motion:
Pursuant to Standing Order 108(2), it is moved
that the Standing Committee on Justice and Human Rights devote four sittings to
the study of the state of organized crime in Canada and the consequential
legislative amendments that should be made and that the Chair report its
conclusions and recommendations to the House.
The Committee quickly realized that many more meetings than those
discussed in the motion would be required in order for it to acquire some
understanding of the state of organized crime for three main reasons. One was
that the witnesses who testified before the Committee made it clear that the
term “organized crime” covered a wide array of criminal activities that
affected many facets of Canadian society. Its effects can be felt not only in
the criminal justice system, but also in the areas of education and social
services, to name but a few. To explore properly the effects of organized crime
and the legislative means of tackling it would take many more meetings than
originally scheduled.
The second main reason to have more meetings on organized crime was
that the issues raised were not only large in number, but complex in nature. One
example of this was the issue of crime prevention versus crime deterrence. Different
witnesses had different perspectives on this topic, depending upon their
background. The Committee chose to hear from a diverse range of witnesses,
including law enforcement officials, victims of crime, workers with social
service agencies, academics, journalists, business people, government
officials, and members of the public. Out of this diverse group of witnesses,
the Committee was presented with a wide range of opinions on the many issues
addressed in this report.
The third main reason that more meetings would be required to carry
out this study was that no single definition of “organized crime” can be
applied across Canada. In such a diverse country of regions, it is perhaps not
surprising that organized crime takes on many and different forms in different
parts of Canada. As a result, a legislative solution that may work in one area
may prove to be less effective in another. The Committee, therefore, felt it
was important to explore as many different parts of Canada as budgets and time
allowed in order to investigate the nature of organized crime at the local
level.
The Committee was left with difficult decisions as to where to
travel as part of its study. In the end, it has heard witnesses in Ottawa,
travelled to Vancouver, Montréal, Halifax, Toronto, Edmonton, and Winnipeg for
public hearings, and received briefs from various individuals and
organizations. While it was not possible to visit every community that members of the
Committee wished to, it was felt that the cities chosen provided some
representation of the diversity of organized crime activities in Canada. In
addition to its organized crime study, the Committee has also heard related
testimony on Bill C-14,
an Act to amend the Criminal Code (organized crime and protection of
justice system participants) and as part of a study on declaring certain groups to be criminal organizations. The Committee also benefited from testimony on the issue of “gangsterism” heard
during the 1st Session of the 39th Parliament.
Organized crime poses a serious long-term threat to Canada’s
institutions, society, economy, and to our individual quality of life. Many
organized crime groups use or exploit the legitimate economy to some degree by
insulating their activities, laundering proceeds of crime and committing
financial crimes via a legitimate front. Organized crime groups exploit
opportunities around the country and create a sophisticated trans-national
network to facilitate criminal activities and challenge law enforcement efforts.
The Committee was informed that gangs and organized crime have been
with us for at least 150 years. Alienated and disenfranchised young men long
ago forged
a common bond of lawlessness, using crime as a means of generating wealth.
New opportunities for organized crime arrived when illicit drugs became more
widely available, due to the increasing ease of international travel and
commerce.
Organized crime involves white collar criminal activity, gang
activity and both domestic and foreign participants. Organized crime is of
concern not only for its direct impacts, such as the selling of illicit drugs,
but also for the indirect impacts, such as the violence that spills into the
larger community when rival organized crime groups try to gain control over
areas in which to sell drugs.
There are immediate and direct costs to the victims of organized
crime.
These costs can be financial but, more importantly, they can be physical in
nature as well as mentally and emotionally traumatic. The losses suffered by
victims through such things as the violation of their sense of personal safety
and security are long-lasting and difficult to measure. Victims of organized
crime can be found everywhere as this type of crime knows no boundaries and
carries out its activities in communities of all sizes.
Such activities can occur everywhere through such things as fraud over the
Internet, the sale of counterfeit goods, and breach of intellectual property
laws. The cost of crime is not only a personal one, however, as it is passed on
from victims to their insurance companies to businesses and then to consumers. In
this way, the personal toll of organized crime becomes a burden on society as a
whole. Furthermore, there is also a high price for taxpayers in the form of
increased costs for law enforcement and the justice and correctional systems.
Domestic policing efforts across Canada increasingly require the
development of strategies and programs that address the international
components of organized crime. Currently, the Royal Canadian Mounted Police
(RCMP) and local law enforcement units are focused on reducing the threat and
impact of organized crime. In countering the growth of organized crime groups
and dismantling their structures and sub-groups, a critical component is the
improved coordination, sharing and use of criminal intelligence and resources.
This sharing of information and resources is used in support of integrated
policing, law enforcement plans and strategies, and assists the police in
communicating the impact and scope of organized crime.
The impact of organized crime on the lives of Canadians was
certainly communicated clearly to the Committee throughout its hearings. The
Committee also heard a level of frustration with how the justice system
functions in this regard. There was often an expressed perception that this
system operates with a bias in favour of the accused rather than the victim.
The offence of participation in a criminal organization was enacted
in 1997 as part of Bill C-95. At that time, a “criminal organization” meant any group,
association or other body consisting of five or more persons, whether formally
or informally organized, that met two requirements: (1) have as one of its
primary activities the commission of an indictable offence under this or any
other Act of Parliament for which the maximum punishment is imprisonment for five
years or more; and (2) any or all of its members engage in, or have,
within the preceding five years, engaged in the commission of a series of such
offences. That offence was punishable by a term of imprisonment not exceeding
14 years, and required that the accused have participated in the activities of
a gang and been a party to the commission of an indictable offence committed in
relation to a criminal group.
Coming into force in 2000, Bill C-22 created the Financial
Transactions and Reports Analysis Centre of Canada (FINTRAC). FINTRAC is
an independent agency responsible for the collection, analysis, assessment and
disclosure of information in order to assist in the detection, prevention and
deterrence of money laundering and financing of terrorist activities in Canada
and abroad. FINTRAC receives reports from financial institutions and
intermediaries, analyzes and assesses the reported information, and discloses
suspicions of money laundering or of terrorist financing activities to police
authorities and others as permitted by its governing legislation. FINTRAC also
discloses to the Canadian Security Intelligence Service (CSIS) information that
is relevant to threats to the security of Canada.
Concerns were expressed by police and prosecutors that the
definition of a “criminal organization” was too complex and too narrow in
scope. As a result, in 2002, Bill C-24 amended the
definition of a “criminal organization” in three main ways by:
- reducing the number of people required to constitute a criminal
organization from five to three;
- removing the requirement that at least one of the members be involved in
committing crimes for the organization within the past five years; and
- broadening the scope of the offences which define a criminal
organization, previously limited to indictable offences punishable by five
years or more, to all serious offences.
Therefore, the definition of “criminal organization” now requires
that a group, however organized, meet two requirements: (1) be composed of
three or more persons in or outside Canada; and (2) have, 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. The Criminal Code expressly provides, however, that the term “criminal organization” does not
mean a group of persons that forms randomly for the immediate commission of a
single offence.
A “serious offence” is defined as an indictable offence for which the maximum
punishment is imprisonment for five years or more, or another offence that is
prescribed by regulation. Facilitation of an offence does not require actual
knowledge of a particular offence or that an offence actually has been
committed. Committing an offence means being a party to it or counselling any
person to be a party to it.
The finding by a court that a group is a criminal organization is
done on a case-by-case basis and is only applicable to the individuals in that
case. For example, the
Hells Angels has been found by the courts to be a criminal organization
but there is no official directory of such a finding nor will there be
continuous labelling. In other words, the existence of a particular group as a
criminal organization must be proven anew in
every case.
There are three specific Criminal Code offences in relation
to criminal organizations. One is participation in the activities of a criminal
organization (s. 467.11 of the Criminal Code; punishable by a term of
imprisonment not exceeding five years).
This enables police to investigate and charge persons who fulfill a role that
furthers the ability of the criminal organization to commit criminal acts. This
may include, for example, individuals who launder money for a criminal
organization, facilitating the concealment of the illegal proceeds of criminal
organizations. In 2010, Statistics Canada reports there were 10 violations of
section 467.11, with 26 persons accused of this offence.
A second offence is commission of an offence for a criminal
organization (s. 467.12 of the Criminal Code; punishable by a term
of imprisonment not exceeding 14 years).
It provides for those who commit various criminal offences such as drug
importation, drug exportation, extortion, arson, kidnapping, violence, gaming,
and money-laundering from which the organization derives a benefit. Statistics Canada reports there were 39 violations of
section 467.12 in 2010, with 85 persons accused of this offence.
Instructing the commission of an offence for a criminal
organization is the third offence and is punishable by imprisonment for life
(s. 467.13 of the Criminal Code). Statistics Canada reports there were 50
violations of section 467.13 in 2010, with 39 persons accused of this
offence. Sentences for all three types of offences must be served
consecutively with any other sentence. At
the same time as these offences were added to the Criminal Code, new
investigative tools to be directed against criminal organizations were also
created. These included special peace bonds, new powers to seize proceeds of
crime by broadening the definition of a “designated offence” from which
proceeds could be seized, greater powers to resort to electronic surveillance, and a new reverse onus bail
provision for those charged with the new offences.
It should be noted that membership in a criminal organization is
not an offence. Sections 467.11 and 467.12 do not require that the accused be
part of the group that constitutes the criminal organization, but this is a
requirement under section 467.13.
It should also be kept in mind that other Criminal Code provisions may
be applied in organized crime situations. These other provisions include:
conspiracy (section 465), forming an intention in common to carry out an
unlawful purpose (section 21), aiding and abetting (section 21) and counselling
(section 22) a person to commit a crime.
These Criminal Code provisions should be read in combination with the
provisions that define the three criminal organization offences.
The law concerning organized crime found in the Criminal Code is
still relatively new. In Ontario, the R. v. Lindsay case in 2005 determined that the Hells Angels were a
“criminal organization” as that term is defined in the Criminal Code. More
specifically, the court was satisfied beyond a reasonable doubt that the Hells
Angels has as one of its main purposes the facilitation of one or more serious
offences that would likely result in the receipt of a financial benefit by its
members, in particular drug trafficking. This was the first time in Canada that
a judge declared a group, as opposed to individuals, to be a “criminal
organization” as that term is defined in the Criminal Code.
In R. c. Aurélius, a street gang was declared to be a
“criminal organization” and some offenders in that gang received enhanced
sentences as a result. In that case, members of a street gang trafficked in cocaine
for the benefit of a criminal organization in the terms encompassed by section
467.12 of the Criminal Code. As a result, some members of this
particular street gang were found guilty of “gangstérisme” (gangsterism).
In a brief to the Committee looking at trends in organized crime
prosecutions, it was suggested that it is often difficult to justify laying Criminal Code criminal
organization charges (rather than simply proceeding with the underlying
charges) due to the increased complexity that such charges bring to the
prosecution. The opportunity to seek consecutive sentences mandated by section
467.14 of the Criminal Code is often offset by the added time and effort
involved in proving criminal organization offences. In addition, charging
additional, peripheral figures involved in a criminal organization might unduly
complicate the prosecution.
The complexity and dedication of resources required to prosecute
criminal organization offences was brought home to this Committee by a prosecutor
with the Quebec Organized Crime Prosecutions Bureau. The
successful prosecutions of members of the Hells Angels in Quebec and the
break-up of the Bandidos biker gang in Quebec were attributed to the combined
effect of the above-noted legislative changes along with other measures. These
additional measures included:
- the creation of specialized police task forces;
- the participation of different police agencies;
- lengthy police investigations that targeted whole criminal
organizations;
- the use of civil infiltration agents;
- the creation of specialized teams of prosecutors, such as the
Proceeds of Crime Bureau in 1996 and the Organized Crime Bureau in 2000;
- the construction of the Grouin Judicial Services Centre; and
- the renovation of several courtrooms around Quebec, which allowed
for the holding of several mega-trials in different places at the same time.
In addition to the laws concerning criminal organizations
specifically, laws of general application can be used to prosecute and disrupt
organized crime. The Halifax Regional Police, for example, has put in place
Operation Breach. In response to the fact that the majority of crimes are
committed by a limited number of offenders, Operation Breach strictly monitors
offenders released into the community to ensure compliance with release
conditions and prevent further criminal behaviour. The goal of Operation Breach
is to make certain that persons believed to be actively involved in further
offences comply with their release conditions. Non-compliance results in new
charges, which in turn results in more restrictive conditions or the offender
being returned to custody. The Halifax Regional Police believe that Operation
Breach has shown that the enforcement of release conditions has a deterrent
effect and can reduce crime. A related effort is to ensure that arrest warrants
are executed. This enhances community safety by reducing criminal opportunities
for those illegally at large who will now be arrested and, therefore, will not
be able to engage in further criminal activity.
In 2008, over 900 organized crime groups were identified in Canada,
including approximately 300 street gangs. In 2011, Criminal
Intelligence Service Canada (CISC) identified 729 crime groups. The change in the numbers of criminal groups is said to reflect a number of
factors including fluidity in the criminal marketplace, disruptions by law
enforcement, and changes in intelligence collection practices. In its 2010 Report on Organized Crime, CISC focused on street gangs, stating that,
since 2006, there has been an increase in the number of such gangs identified
by law enforcement agencies across Canada. The factors that may account for
this increase include higher-level organized crime groups being identified as
street gangs, cells from larger gangs being identified as new entities, street
gangs splintering into smaller criminal groups, or gangs
changing names.
CISC’s main purpose has been to facilitate the timely production
and exchange of criminal intelligence information within the Canadian law
enforcement community. CISC supports the effort to reduce the harm caused by
organized crime through the delivery of strategic intelligence products and
services and by providing leadership and expertise to its member agencies. CISC
is an umbrella organization of all Canadian law enforcement agencies and as
such, is encouraged by all stakeholders and member agencies to actively pursue
an impartial autonomous role within the complex network of relationships
it manages.
In its testimony before the Committee, CISC categorized organized
crime groups in Canada into four levels of threat. Category one groups pose the
most significant level of threat and operate inter-provincially or internationally.
Twenty-four criminal organizations currently belong to this category. Category two groups operate with international or inter-provincial scope as
well, but have been determined to be at a lower threat level than the category
one groups. There are 262 such groups in Canada today. Category three groups
are confined to a single province, but can encompass more than one city or
region;
121 category three groups operate in Canada. Finally, category four groups are
confined to a single area, such as a town or a city; 210 criminal organizations
belong to this category. The number of groups in each category remains fluid. CISC
did not rate 30 groups for various reasons and 82 groups came to CISC’s
attention after its national threat assessment was compiled.
Nationally, the Lower Mainland of British Columbia, Southern
Ontario and Greater Montréal are considered to be the primary criminal hubs,
with both the largest concentration of criminal organizations as well as the
most active and dynamic criminal markets. In 2010, of the 56 gang-related
homicides committed in Canada’s ten largest cities, 82% were committed in
Toronto, Montréal, and Vancouver.
The RCMP in Toronto informed the Committee that adaptability is the
cornerstone of the survival and success of organized crime. CISC
reports that, traditionally, organized crime was thought to be composed of
hierarchically structured groups that were ethnically, racially, or culturally
homogeneous and that tended to operate within a strict culture of rules and codes.
Today, however, CISC reports that law enforcement is detecting more
multi-ethnic criminal groups. There has also been an evolution in the way
organized crime groups operate away from an authoritarian, rule-bound structure
towards one that is more loosely structured. These groups now have fluid
linkages between members and associates, with a diverse range of leadership
structures. The
different organized crime groups forge alliances which are fluid in both
duration and scope. The purpose behind these alliances is the acquisition and
legitimization of wealth.
The growth of criminal organizations from diverse cultural
backgrounds was also reflected in a report the Committee received on organized
crime in Quebec. The 2009 Situation Report breaks down organized crime in Quebec into the
following categories: Asian-origin organized crime; Aboriginal-origin organized
crime; Italian-origin traditional organized crime; Quebec-origin traditional
organized crime; street gangs;
Latin-American-origin organized crime; East European-origin organized crime;
Near- and Middle-East-origin organized crime; and criminal bikers. The police
have observed a number of alliances or associations forming within the criminal
community of that province.
When these prove necessary to the success of their criminal enterprises,
organized crime members do not hesitate to employ the expertise of other
criminals. One example of such cooperation is the agreement between
Italian-origin traditional organized crime and the criminal bikers to allocate
territory for drug distribution purposes. Violence can erupt, however, during
struggles to control crime groups and during struggles between these groups to
control criminal markets.
The Committee was also informed that emerging organized crime groups
are less inclined than their predecessors to display outwardly and blatantly
the signs or “brands” of more traditional groups (e.g. the Hells Angels symbol
on jackets). These newer groups tend not to use a particular name, tattoo,
clothing, or jewellery as identifiers. This tends to make prosecutions under
organized crime laws more difficult. Another trend in organized crime has been that of globalization. Just as in the
legitimate business world, there has been an increase in organized crime’s
scope of operations with national and international connections now being the
norm.
One fact about the activities of organized crime that was
emphasized many times before the Committee is that they are all centred upon
the profit motive. This has many implications, one of which is that organized
crime does not restrict itself to one market or one geographical area. It will
go where there is money to be made. Cross-jurisdictional crime, in turn, makes
it necessary for different law enforcement agencies to work together and share
information.
Illicit drugs continue to be the largest criminal market in Canada with
57% of the criminal marketplace being taken up by the trade in drugs. The
majority (83%) of organized crime groups are involved in the illicit drug
trade. The predominant drug is cocaine, followed by cannabis, and then followed
by synthetic drugs. One
indication of the size of the drugs trade is that, in the Atlantic region,
since 2008, the Canada Border Services Agency (CBSA) has seized more than $176
million in drugs arriving at Atlantic ports in sea containers. The majority of
these drug seizures consist of hashish coming from Asia and Africa and cocaine
arriving from South America. One
of the challenges in identifying suspect containers is the use of legitimate
companies by organized crime to conceal drug shipments. Of the 109 organized
crime groups profiled for the Atlantic provinces, 99 are involved in the
illicit drug trade and in Nova Scotia, organized crime accounts for 90% of the
drug trade. Canada
has also become a source country for synthetic drugs (like ecstasy and crystal
meth). Organized crime groups smuggle in the precursor chemicals from source
countries such as China and India. Canada continues to export significant
quantities of ecstasy and methamphetamine to meet expanding international
market demands.
One of the features of organized crime is its determination to
establish a monopoly on the production, distribution, and sale of illicit goods
in any given market. This
is one aspect of organized crime operating as a business. Learning about the
limitations and effectiveness of law enforcement investigative techniques
through the disclosure required by law, organized crime figures no longer have
assets in their names, they lease vehicles, they use nominee companies, and
they own assets abroad. Moreover, organized crime specializes in certain areas
and changes the sectors in which it operates to those with less risk and
greater profits.
Where law enforcement successes have disrupted or dismantled
specific crime groups, this impact tends to be short-term. It creates a
temporary void into which market expansion occurs, or creates opportunities for
well-situated organized criminal groups to exploit. In general, criminal
markets are highly resistant to long-term disruption, as consumer demand in
Canada is large enough for criminal networks to continue their activities and
for other criminal groups to take the place of those broken up by police.
In 2011, CISC reported that financial crime accounts for
approximately 11% of criminal market activity. Payment card fraud is by far the
largest part of this market and it continues to expand. Payment card fraud involves card thefts, fraudulent card applications, fake
deposits, and skimming or counterfeiting. Securities and mortgage fraud is
another area of the financial crime market in which organized crime has an
interest.
The remaining 32% of criminal market activity is taken up with
other illicit goods and services. These criminal activities include theft,
contraband such as alcohol and tobacco, the sex trade, and human trafficking.
The Committee was informed that the largest amount of human
trafficking taking place in Canada is domestic, that is, Canadian girls are
being trafficked within Canada. This trafficking is done through organized
crime networks. CISC
has reported that street gangs facilitate the recruitment, control, movement
and exploitation of Canadian-born females in the domestic sex trade, primarily
in strip bars in several cities across
the country.
In its meetings held in six cities across Canada in addition to
hearings in Ottawa, the Committee learned of the wide array of organized crime
groups and activities. In some areas, the traditional “Mafia-style” organized
crime groups held considerable sway while in others, Aboriginal or other
ethnically-based gangs were the local criminal power. Trafficking in illicit
drugs seemed to be a common component of organized crime activities, with other
areas being human trafficking, counterfeit products, illegal gambling, money
laundering, and vehicle theft. Another aspect of organized crime that was
frequently discussed during the Committee’s hearings was the violence that has
been experienced when organized crime groups come into conflict with each other
over control of lucrative markets, such as supplying illicit drugs. This
violence is exacerbated and can involve innocent bystanders when firearms are
used. Finally, witnesses in a number of cities discussed the expansion of
organized crime into “legitimate” business sectors, such as construction. This
mixing of legitimate and illegitimate can make singling out and prosecuting
organized crime groups more problematic.
The activities listed above can all generate wealth and there is a
reduced risk to the criminal organization when that activity is not trafficking
in illicit drugs. In cases of tobacco smuggling, for example, the profits can
be as high as they are for drug smuggling, but the risk of prosecution and the
punishment following conviction is much lower.
Criminal organization activities are also being abetted by a new
kind of accomplice, usually called a “facilitator”. These are experts in a
certain field, often members of a professional order, such as lawyers and
accountants. They are not forced to work with a criminal organization but
rather, choose to do so due to the generous compensation they receive. These
professionals are sought out because of their expertise, and, also, the rules
of confidentiality to which they are bound. However, it is often difficult to
prove that the facilitator knew that the organization for which he or she
performed some work was engaged in illegal activities. Rules such as
solicitor-client confidentiality can also make the work of the police in this
area more difficult.
Criminal organizations have escalated their use of violence in
taking over and defending territory. Street gangs have become more violent and
unpredictable. In 2010, police reported 94 homicides as being gang-related,
compared to 72 in 2000. These include homicides linked to organized crime groups or street gangs, as
well as the death of any innocent bystanders during the incident. Furthermore,
the victims of gang-related homicides as a percentage of all homicides rose
from 13.2 % in 2000 to 17 % in 2010. Most gang-related homicides (56) occurred
within Canada's largest census metropolitan areas (CMAs). The 10 largest CMAs
accounted for just under half of all homicides in the nation in 2010 (269 out
of 554), but 60% of all gang-related homicides
(56 out of 94). Police in the metropolitan area of Toronto reported 20 gang-related
homicides, the most of any CMA. However, accounting for population, Winnipeg’s four
gang-related homicides in 2010 gave it the highest rate among the 10 largest
metropolitan areas.
The increase in gang-related homicides, in comparison to the number
of homicides not related to gang activity, can be seen in the following two
charts:
Firearms were used more often in gang-related homicides than in
other types of homicide. In 2010, 76% of gang-related homicides in Canada were
committed with a firearm, compared to 18% of homicides unrelated to gangs. Among
all gang-related homicides that were committed between 2000 and 2010, handguns
were used in almost 60% of incidents. By comparison, in homicides not related to gang activity between
2000 and 2010, a handgun was used in approximately 12% of incidents. Knives
were the most common weapon used in non-gang-related homicides. Gang members have, therefore, started wearing bullet-proof vests and modifying
their vehicles to be armoured.
The number of homicides attributable to gangs has generally increased since
information gathering on this topic began in 1991 (though it has declined
recently), despite the fact that the overall rate of homicides in Canada has
generally decreased since the mid-1970s.
Moreover, the number of young persons charged with homicides
attributable to gangs has generally increased since 2002. The number of youths
accused of gang-related homicides peaked in 2007 when 35 youths were accused of
this offence, which declined to 10 accused in 2008 and increased to 14 youth
accused of committing a gang-related homicide in 2010. Compared to adults, more
incidents of homicide involving youth were gang-related. In 2010, among
incidents with a youth accused, 25% involved gangs, compared to 12% of
incidents with an adult accused.
Given the clandestine nature of criminal activities, it is
difficult to evaluate the total impact of organized crime in this country, but,
given the diversity of criminal markets in Canada, we know it is significant. The
overall impact of organized crime is significant due to the spectrum of
criminal markets operating in Canada. Some forms of criminal activity are
highly visible and affect individuals and communities on a daily basis, such as
street-level drug-trafficking, assaults, violence, and intimidation.
Conversely, more covert operations, such as mortgage fraud, vehicle theft, and
identity fraud, pose long-term threats to Canadian institutions and consumers.
Another difficulty in evaluating the impact of organized crime in
this country is that the Committee has been told that only about one-third of crimes
committed in Canada are reported to the police, but police statistics are
widely used as representing the actual crime rate. As a result, policy makers,
the media, the legal system and the public can be misled. The
Committee was urged to look at the Statistics Canada report, Criminal Victimization in Canada, as a more accurate measure of the amount of criminal activity in Canada. The
General Social Survey from 2009, which was the genesis of the victimization
survey, indicated that about 7.4 million Canadians – just over one-quarter of
the population aged 15 years and older – reported being victimized one or more
times
in the 12 months preceding the survey, but only 31% of criminal incidents came
to the attention of police in 2009.
The Committee was informed that a problem with respect to
accurately portraying current crime statistics is that the Criminal
Victimization Survey is only carried out by Statistics Canada once every
five years. As a result, the media tend to pay more attention to annual reports
of crimes reported to police. We were told that the current widely used
approach of equating crime reported to police as an indicator of the total
extent of crime was wrong, misleading and in need of change.
A number of caveats need to be raised when trying to compare the
results of victimization surveys with the amount of crime reported to the
police. In Canada, there are two primary sources of data on the prevalence of
crime: victimization surveys such as the General Social Survey (GSS), and
police-reported surveys such as the Uniform Crime Reporting (UCR) Survey. These
two surveys are very different in survey type, coverage, scope, and source of
information. The GSS is a sample survey, which in 2009 sampled about 19,500
individuals aged 15 years and older. In contrast, the UCR survey is a census of
all incidents reported by police services across Canada. While the GSS captures
information on eight offences, the UCR survey collects data on over 100
categories of criminal offences.
Another key difference between the two surveys is that the UCR
survey records criminal incidents that are reported to the police and the GSS
records respondents’ personal accounts of criminal victimization incidents.
Many factors can influence the UCR police-reported crime rate, including the
willingness of the public to report crimes to the police, reporting by police
to the UCR survey, and changes in legislation, policies or enforcement
practices. One way to estimate the extent of crime that is not reported to police
is through the GSS victimization survey. Because the GSS asks a sample of the
population about their personal victimization experiences, it captures
information on crimes, whether or not they have been reported to police. The
amount of unreported victimization can be substantial. For example, the 2009
GSS estimated that 88% of sexual assaults and 77% of household property thefts
were not reported to the police. As a result, victimization surveys usually
produce much higher rates of victimization than
police-reported crime statistics.
Despite this, the 2009 GSS also reported that 93% of Canadians felt
either very or somewhat satisfied with their personal safety, indicating they
felt as safe as they had in the 2004 GSS; 90% of respondents reported that they
felt safe when walking alone in their neighbourhood at night. The GSS also
asked Canadians about their perception of crime in their communities; 62% of
respondents said they believed crime rates in their community had not changed
over the past five years.
Despite the benefits of victimization surveys, they do have
limitations. For one, they rely on respondents to report events accurately.
They are also only able to address certain types of victimization. They do not
capture information on crimes that have no obvious victim (e.g. prostitution or
impaired driving), where the victim is a business or school, where the victim
is dead (as in homicides), or when the victim is a child (anyone under the age
of 15 in the case of the GSS).
RECOMMENDATION
The Committee recommends that Statistics Canada carry out the Criminal
Victimization Survey annually, and that the Government of Canada provide
Statistics Canada with the appropriate funds to do so, in order to give policy
makers, police, the justice system and the public a better measure of criminal
activity in Canada.
The introduction of anti-gang legislation, coupled with integrated
and aggressive police investigations, has reportedly led to an increase in the
number of gang members and their associates under the jurisdiction of the
Correctional Service of Canada (CSC). The Committee was informed that, as of November
30, 2011, 2,293 offenders under CSC’s jurisdiction were identified as members
or associates of a criminal organization.
Of these offenders, 70% (or 1,605) were incarcerated and 30% (or 688) were
under some type of community supervision. The overall offender population under
CSC supervision was 23,021, meaning that the gang population comprised 9.96% of
the overall
offender population.
The most common type of criminal organization is street gangs with
39% of the national prison gang population. The street gang population within
CSC has grown rapidly in the past 10 years and CSC predicts a continuation of
this trend in the future.
The second largest criminal organization type under CSC jurisdiction is Aboriginal
gangs with 26% of the population, followed by motorcycle gangs (17%),
traditional organized crime (8%), other gangs (7%), and Asian gangs (3%). The street and Aboriginal gangs, which combine to account for 76% of the
organized crime affiliations within CSC, are predominantly weighted in the
Prairies region, which manages 83% of the Aboriginal gang members and 38% of
the street gang population.
The increase in gang members under CSC jurisdiction has created a
number
of challenges:
- Power and control issues through intimidation, extortion and
violence;
- Incompatibilities and rivalries among different criminalized
groups;
- Drug distribution within institutions;
- Continued criminal links with outside criminal organizations;
- Recruitment of new gang members; and
- Potential for intimidation, manipulation, and corruption of staff.
Gang rivalries sometimes mean that CSC cannot integrate offenders
but, rather, must segregate and separate certain types of gangs. Separation,
however, is not always a realistic approach to dealing with gangs. Intelligence-led
risk management is employed to examine issues of gang dynamics and try to
prevent conflict among gangs. In addition, CSC aims to provide all gang members
with an opportunity to no longer affiliate themselves with a gang.
The Committee also heard that jail can sometimes fail to serve as a
deterrent for certain youth; in fact, it can sometimes be a step up from their
previous life. For
first-time offenders, jail becomes a place to form negative associations. The
jail system provides a place where gangs can recruit and crime can become more
organized. Once released, the supports that are needed for any meaningful
change are not always available, and so the gang associations made in jail
become the support system for these former prisoners.
One of the difficulties related to organized crime in prisons is
that the vast majority of prisoners are, at some point, released into the
community. At first glance, the scope of the issue would not seem to be that
large. The Committee was informed that, in
2010-2011, the Parole Board of Canada made 308 conditional release decisions
for
139 offenders who had a criminal organization conviction. This was out of a
total of
23,054 conditional release decisions, accounting for 1.3% of all decisions in
that year. Since 1998-99, the Board has made 1,917 conditional release
decisions for offenders convicted of criminal organization offences.
The Board has clarified that it has full discretion to use
information on violence and organized crime and gang activity in making its
decisions. Reports of criminal conduct by an offender for which there has not
been a conviction can be taken into account. The Parole Board has the authority under section 133 of the Corrections and
Conditional Release Act to impose whatever conditions it feels are necessary to protect society and
assist the offender in reintegrating into society. One of the considerations in
this regard is any involvement of the offender with criminal organizations. Another
consideration in any release plan is whether the placement of the offender in a
community may result in associations with members or associates of criminal
organizations.
The duty to act fairly requires that information the Parole Board
considers in its decisions be shared with the offender. The Board has assured
the Committee that it is taking steps to safeguard sensitive information so
that the Board may receive what it needs, offenders see what they are entitled
to under the law, and sources or ongoing investigations remain protected.
The Parole Board has recently collaborated with the Halifax
Regional Police to create a new-style police report designed to give the Board relevant
and detailed intelligence about offenders without jeopardizing sources or
investigations. The Board reports that five RCMP detachments have adopted this
model and it is reaching out to other police partners.
Another issue with respect to those released into the community
from prison is that there are no longer bars and physical restraints to keep
gang members away from each other or even away from members of their own gang. CSC
tries to work with offenders from the time they are incarcerated to their time
of release and beyond to, for example, see that they acquire relevant
employment skills. A multidisciplinary team of parole officers, community
employment coordinators, psychologists, and mental health workers follows up on
the progress of offenders, going so far as to verify with employers that
offenders are doing what they claim to be doing.
RECOMMENDATION
The Committee recommends that the Correctional Service of Canada
develop stronger rehabilitation programs, including mental health assessments,
for offenders involved in organized crime. These support programs must also be
continued in the post-release community situation to help ex-prisoners
reintegrate into society.
RECOMMENDATION
The Committee recommends that the Parole Board of Canada continue
in its efforts to work with its police partners to create police reports
designed to give the Board relevant and detailed intelligence about offenders
without jeopardizing sources or investigations.
The simplest means of providing evidence of the existence of a
criminal organization is to have one of its members testify. In many cases,
however, prosecutors are not able to have access to this type of witness. They
must, therefore, use other types of evidence such as wiretaps, visual
surveillance, and dealings with undercover police. This manner of proceeding
can be dangerous, complex, and involve a number of delays. The most laborious
step in the prosecution of a criminal organization is proving that the group
is, in fact, a “criminal organization” in the Criminal Code sense of the
term.
The Committee was told that, while the police do not necessarily
take issue with the criteria established for designating a group as a criminal
organization, they do take issue with the fact that once designated, it carries
no weight in subsequent court cases.
The specific example given was that of the Manitoba Chapter of the Hells Angels
Motorcycle Club, which has already been found by the Manitoba Court of Queen’s
Bench to be a criminal organization, and yet in upcoming trials of Hells Angels
members, this fact will have to be proved once again. Proving
that a group is a criminal organization is a costly and time-consuming endeavour.
Arguably, the financial and human resources required to furnish this proof
would be better spent targeting other criminal organizations.
A means of drawing up a list of criminal organizations similar to
the mechanism used for terrorist groups does not currently exist in Canadian
law. While important court decisions have recognized that certain criminal
groups, such as the Hells Angels, are “criminal organizations” in the Criminal
Code sense of the term, in Canada, the Crown must, in every case involving
such groups, offer proof that the case concerns a criminal organization
according to the legal definition. Courts in British Columbia, Ontario, and
Manitoba have ruled that in the current state of the law, the determination
that a group is a criminal organization only applies to the accused before the
court.
The Committee has been informed that providing this proof often
means that there are long delays in matters which are already very demanding. In
order to lighten the load of the Crown, some have suggested establishing an
official list of criminal organizations already recognized by the jurisprudence
as being criminal organizations under the Criminal Code. One of
the potential advantages of establishing such a list would be to lessen the
time required for the Crown to prove that a group before the court is, in fact,
a “criminal organization”. The Crown could, as well, concentrate its energy on
demonstrating the other elements of the offence before the court. A further
advantage of a list of criminal organizations would be that it would prevent
criminal organizations from advertising themselves and thereby intimidating the
public.
The organizations that would appear on the list, such as the Hells
Angels, have been designated as criminal organizations in numerous court
decisions. In the case of other groups who carry a distinctive name and who
have already been declared to be criminal organizations by the courts, the
representative of the Ministry of Justice of Quebec mentioned the Bandidos and
the Cosa Nostra. As for other organizations, it was emphasized that we should,
perhaps, wait until there are a sufficient number of findings from the courts
and until the evidence is clear before proceeding to put their names
on a list.
The Committee was informed, however, that there are a number of
problems with maintaining a list of criminal organizations. One is that the law
on criminal organizations is still relatively young. Changing the rules at this
point may provoke constitutional challenges (such as the right to freely
associate) and further complicate an already complex area of the law. Another
constitutional issue that might be raised is that a list would impose sanctions
on the basis of an executive decision rather than a judicial finding. This
raises questions about the transparency of the process that results in a
listing decision. However, it also raises questions about the presumption of
innocence in section 11(d) of the Charter as it substitutes a
Cabinet decision for proof of an essential element of a crime.
The listing process would also be difficult to maintain. It would
be difficult to designate less structured groups, such as street gangs, whose
name and membership are always changing and whose actions are unpredictable. As
the membership of some gangs is highly fluid, it would be difficult to prove
that the group on trial is the same entity as the group on the list. Therefore,
a list of criminal organizations would always be incomplete and outdated.
The main objection to establishing a list of criminal
organizations, though, is that it may not reduce the burden on the police or
Crown prosecutors. The police must still continue to collect intelligence
proving the existence of a criminal organization, as well as evidence of the
link between the accused and that organization. This will involve the same
delays as those that were to be avoided by the establishment of a list. Expert
witnesses must still be called to explain the context and workings of the
criminal organization in order for the judge or jury to understand the case put
before them. In addition, it is not always necessary to prove that a criminal
organization exists. A prosecutor need only prove that three or more
individuals formed a group for criminal purposes. To impose the enhanced penalties
applicable to a criminal organization, it is not necessary to prove that the
group before the court can be labelled as “Hells Angels”, for example.
A list of criminal organizations may also prove to be a
double-edged sword. It may work with some of the more structured and
long-lasting criminal organizations, such as the Hells Angels. The fact that
other groups are not on the list could be used by the defence as a fact casting
doubt on whether there was proof beyond a reasonable doubt that they were, in
fact, criminal organizations.
As has been seen with no-fly lists, the creation of such a list can
also create significant problems for those who may find themselves wrongly
included on the list. Wrongly included persons can have difficulty getting their
names removed from such a list and suffer great interference with their
personal liberty until they are able to do so. The potential problems in this area were highlighted in a report by the
United States Department of Justice Office of the Inspector General which found
that the Federal Bureau of Investigation (FBI) had submitted incomplete and
inaccurate information to be added to the United States government’s
consolidated terrorist watchlist. The FBI failed to include known terrorism
suspects and to remove records of people that have been cleared.
The Committee was also informed that a range of options, other than
the creation of a list of criminal organizations, was being examined by the
Department of Justice, such as allowing a judge to take judicial notice of
earlier decisions. This approach would take one judicial decision and apply it
in another case, as opposed to a government designation process falling outside
of a courtroom entirely. There would be a rebuttable
presumption that a judge could take judicial notice of a similar set of facts
presented in an earlier case, subject to the defence having a right to
challenge that notice.
Another option being considered is the introduction of legislation
that would clarify what sort of evidence could be introduced to prove the
existence of a criminal organization. A third option is that Parliament could declare the issue of whether a group is
a criminal organization to be a question of law so that this matter could be decided
by a judge prior to trial under section 645(5) of the Criminal Code. A fourth option is to have a gang expert prepare an affidavit under section
657.3 of the Criminal Code and attach as an exhibit the testimony of a
previous case that had proven the existence of a certain
criminal organization. Unless the defence
challenges this evidence in some way, the finding of the previous court should
apply in the subsequent court.
On the basis of all of the above-noted concerns, the Committee does
not believe that the time is right for the creation of a list of criminal
organizations that can be used in the prosecution of these groups. Instead, the
Committee urges the Department of Justice to consider, rather than the creation
of such a list, other options which may make prosecutions of criminal
organizations more efficient and therefore quicker.
RECOMMENDATION
The Committee recommends that the Department of Justice fully
explore and implement as soon as possible other options than the creation of a
list of criminal organizations which may make prosecutions of criminal
organizations more efficient and,
therefore, quicker.
The policing approach to organized crime must itself be organized.
The Committee was informed, however, that one of the problems in British
Columbia is that there is no single organization in place that operates on a
region-wide basis to address organized crime issues. Different police services operate in different “silos” without there being a
single organization, under provincial control, that operates on a regional
basis.
One attempt to coordinate police services on a larger level was the
creation of the CISC, which began in 1970 and today comprises nearly 400 law enforcement agencies from across Canada. CISC’s
goal is to be a leader in the development of an integrated and intelligence-led
approach to tackling organized crime. Its purpose is to facilitate the timely
production and exchange of criminal intelligence within the Canadian law
enforcement community. It is complemented by 10 provincial bureaus that
operate independently. CISC produces a criminal
intelligence service report on organized crime. This publication highlights
some of the ways criminal groups can victimize Canadians.
The report also includes information regarding the dynamics of criminal
intelligence groups, or criminal groups, their methods of operation, and the
criminal markets in which they operate.
The Strategic Intelligence Analysis Section of CISC is responsible
for the production of various strategic intelligence products, including the
annual release of the National Threat Assessment on Organized and Serious
Crime, the National Criminal Intelligence Estimate on Organized and Serious
Crime, and the Annual Report on Organized Crime. This section also designed,
developed and implemented a “strategic early warning”
methodology and system to enhance current law enforcement practices with a
proactive approach to crime control and prevention.
Currently, joint
units of law enforcement organizations at all levels conduct integrated
investigations to target specific criminal organizations. Certain bi-national
teams with United States authorities target in particular trans-border crime by
exchanging information and collaborating on a daily basis. Links with foreign
police services have also been established to combat the global aspect of
organized crime.
The Canadian Integrated Response to Organized Crime (CIROC), which
represents the totality of police services in Canada, was recently created with
a mandate to coordinate a strategic plan for fighting organized or serious
crime through the integration of Canadian police efforts at the municipal,
provincial/territorial, regional, and national levels. As part of the CIROC,
information is shared nation-wide, and operational decisions are made by a
committee of representatives from various law enforcement organizations in
Canada. The goal is to operationalize intelligence produced by CISC in
partnership with the CIS provincial bureaux. A key objective of the CIROC
program is to increase inter-provincial cooperation as it relates to
intelligence sharing and operational coordination in Canada. According to CISC,
the CIROC is building the foundation that will enable law enforcement agencies
across the country to share information in a more timely, reliable, and
efficient manner. It is expected that this improved communication will
translate into enhanced operational success.
The Automated Criminal Intelligence Information System (ACIIS) is
the Canadian law enforcement community’s national database for criminal
information and intelligence on organized and serious crime. Through ACIIS, law
enforcement agencies at all levels collaborate in the collection, analysis and
sharing of criminal intelligence across the country. ACIIS was built in 1976
with an intended group of users numbering 50 across Canada. Today, there are
over 1,400 users. Aside from capacity issues, there is lacking an ability to
take advantage of technological innovations so that law enforcement can share
and access real-time information across jurisdictions. Criminal activity is not
constrained by geography and the information to combat should be free-flowing
as well. CISC told the Committee that there is a need to replace ACIIS; as
organized crime changes and grows more complex, the value of information and
intelligence to law enforcement arises from how fast it can be gathered,
understood, and transferred.
The Criminal Intelligence Service Ontario (CISO) welcomed the
introduction by the CISC of a model that explains how organized crime operates
as fluid, entrepreneurial networks that operate within both illicit and licit
marketplaces. This is part of a shift from threat to risk analysis in the
assessment of organized crime in Canada.
Under the old model, CISC focused on the criminal actors. Under the
hybrid model, the focus will be on both the criminal actors and their operating
environment.
This environment encompasses both the licit and illicit economic sectors. Organized
crime will now be thought of as small, loosely structured networks that react
to fluctuations in the economic, political and legal environments. It also
emphasizes the inter-connectivity and inter-dependency of licit and illicit
markets and depicts criminal networks as rational and profit-maximizing.
There are still-valid arguments that suggest that the institutional
model under which police services operate is too compartmentalized and has
proven to significantly hamper the flow of information from federal police agencies
such as the RCMP to other federal, provincial, and municipal partners.
Specifically, matters of federal security clearances, national security
databases, and restrictive reporting structures inhibit true integration and
effective information sharing. This needs to be remedied to ensure that full
intelligence sharing takes place. One police officer
said that what was needed was a provincial law enforcement view as opposed to
an agency view. We
believe that this can be expanded to the taking of a national and even an
international law enforcement view.
The Committee has heard that certain legislative restrictions have
a negative impact on the ability of the police to share information with both
domestic and international law enforcement partners. What is required is a
legislative scheme that is clear with respect to the sharing of criminal
intelligence in order to facilitate more effective and efficient investigations
of organized crime. The legislative restrictions should be removed in cases
where they are not necessary for privacy or other reasons.
A practice that has proved beneficial in the prosecution of
organized crime in Vancouver is the use of a Regional Gang Prosecutor. The
investigative and prosecutorial efficiencies realized by the assignment of a
dedicated prosecutor cannot be overstated. Investigations tend to remain
focused, warrants are executed in a timely manner, and appropriate charges are
laid. The employment of a dedicated prosecutor familiar with a particular file
can also facilitate detention orders at bail hearings and encourage guilty
pleas. As part of the Vancouver Police Department’s Chronic Offender Program
and Identity Theft Task Force, provincial Crown attorneys become part of the
investigation early in the process. The Regional Gang Prosecutor consolidates
charges and presents the evidence at the bail hearing, trial, and sentencing.
The result has been detention orders and guilty pleas in over 90% of these
cases.
RECOMMENDATION
The Committee recommends that legislative restrictions on the
sharing of criminal intelligence concerning organized crime be examined.
The object of this examination will be to determine whether these restrictions
have a valid purpose and, if not, whether they should be removed to facilitate
the efforts of law enforcement to tackle
organized crime.
RECOMMENDATION
The Committee recommends that the Automated Criminal Intelligence
Information System (ACIIS) be upgraded so that it has the technological
capability of managing the increasing amount of information that is collected
about organized criminal activity in Canada. A new technological platform for
ACIIS can, with appropriate security provisions, significantly increase the
efficiency and effectiveness of analysts, investigators, and intelligence
officers.
The 1991 Supreme Court of Canada decision R. v. Stinchcombe and subsequent case law require prosecutors to disclose relevant information to
the accused. Information is considered relevant if there is a reasonable
likelihood that it could be used to support the Crown’s case, argue a defence,
or make a decision likely to influence the actions of the defence. In addition,
the burden upon the Crown is always present, meaning that evidence must be
disclosed as soon as additional information is received. The obligation to
disclose continues even after conviction, including after appeals have been
decided or the time of the appeal has elapsed. The obligation to disclose
evidence is one component of the right afforded the accused to make full answer
and defence. This right is guaranteed by section 7 of the Canadian
Charter of Rights and Freedoms.
The existence of the right to make full answer and defence means
that the threshold of relevance of information is quite low. The Supreme Court
has called for the production of information that can reasonably be used by the
accused either in meeting the case for the Crown, advancing a defence or
otherwise in making a decision which may affect the conduct of the defence such
as, for example, whether to call evidence. Disclosure may also
encourage the resolution of facts in issue, including the possible entering of
guilty pleas at an early stage in the proceedings.
There are some exceptions to the obligation to disclose. Disclosure
concerning the identity or location of a witness may be delayed to prevent intimidation
or harassment of witnesses or their families, danger to their lives or safety,
or other interference with the administration of justice. In this instance,
Crown counsel must disclose the information as soon as the justification for
the delay in disclosure no longer exists. The fact that some disclosure is
being delayed should be communicated to the defence without jeopardizing the
reason for the delay. In the organized crime context, another claim of privilege against disclosure
is if it would tend to identify a confidential police informer. The one
exception to the police informer privilege is where the information is needed
to establish the innocence of the accused. Disclosure is also not required if
it would reveal secret investigative techniques, methods, and tactics that may
compromise future investigations using the same techniques, methods, and
tactics.
While the principles underlying disclosure obligations may be
accepted, the obligation can present practical challenges. Organized crime investigations
often involve disclosing a large number of documents to the defence, resulting
in considerable costs and delays in proceedings. Stinchcombe requirements
place a heavy demand on police and judicial resources. In addition, disputes
can arise concerning which information is relevant and what fits within the
categories of privileged information. These disputes and delays in providing
disclosure can impede speedy trials and even cause prosecutions to be dismissed
for delay. Another area of concern is that disclosed information can be misused. While
respecting the right of the accused to full answer and defence, a number of
witnesses before the Committee suggested that consideration should be given to
accelerating the disclosure process and clearly and consistently defining the
level
of relevance.
Due to the large volume of material to be disclosed in organized
crime prosecutions, electronic disclosure is now the preferred method. This
form of disclosure reduces costs, takes up less space than paper copies, and
lends itself well to disclosing the originals of electronic, audio, and video
surveillance. To meet the goal of making timely disclosure, prosecutors and
police must act with foresight, meaning that disclosure must be planned when an
investigation is launched. There must be a focus to the investigation to avoid
complicating it unnecessarily, and the disclosure must be comprehensible
and intelligible.
A concern that was brought to the Committee’s attention was that
disclosure packages are being used by organized crime to uncover the
investigative tactics of police. This means that counter-surveillance is
becoming a big issue. Furthermore, traditional police investigative tactics are
no longer as effective as they once were. The Calgary Chief of Police suggested
that the Stinchcombe decision be reviewed for the purposes of
simplifying disclosure for police and, where appropriate, masking police
techniques so that organized crime groups cannot study them and develop
counter-investigative techniques. The Chief also suggested increasing the use
of technology to address issues around the volume of disclosure. Finally, he
suggested increasing the federal prosecutorial capacity by increasing positions
and funding.
Another disclosure issue is the lack of clear understanding of what
is relevant disclosure on the part of the police. In the absence of a clearly
defined threshold, the police feel that they end up providing material that has
no evidentiary value. In determining whether certain material is relevant,
opinion comes to the fore and consistency becomes an issue. This raises
questions as to why material is relevant in one trial but not in another. Clearly
defined parameters need to be developed with respect to what is
relevant disclosure.
The Committee heard testimony from the Public Prosecution Service
of Canada. Witnesses from this organization noted the difficulties inherent in
disclosing large amounts of information when prosecuting organized crime
groups. The Committee was informed, however, that three principles were
followed to ensure that the disclosure process was carried out as efficiently
as possible. The first was called “foresight” and it meant that disclosure
needed to be planned from the beginning of the investigation.
Prosecutors should be assigned at a very early stage in the process to assist
investigators with disclosure as evidence is received. The second principle was
termed “focus”.
This referred to restricting the extent of an inquiry and to avoid a
scatter-shot approach. The third principle is termed “management”. This refers
to the fact that disclosure must be understandable and readable. This means
that evidence must be classified according to its usefulness from the very
beginning of the investigation.
The issue of disclosure was also addressed by former Ontario Chief
Justice Patrick Lesage and Professor Michael Code in their Report of the
Review of Large and Complex Criminal Case Procedures. Patrick Lesage was a witness before the Committee and he acknowledged the
difficulty in attempting to legislate a concept such as “relevance”. Mr. Lesage
did point to one codification of disclosure in the case of the so-called “rape
shield laws”, but pointed out how complicated the rules are in this area. Nevertheless, some of the recommendations in the report echoed those made
before the Committee by the Public Prosecution Service. For example, the report
recommends much closer collaboration between the police and the Crown in large,
complex cases (such as those involving organized crime) at the pre-charge
stage. This collaboration will include assistance with the preparation of
disclosure. Another recommendation in the
Lesage-Code report is that defence requests for the disclosure of materials
outside the investigative file should be subject to a number of requirements,
one of which is that they must be particularized in order to identify the
materials in question and to explain how they could assist the defence.
RECOMMENDATION
The Committee recommends that the Government of Canada work with
provincial and territorial counterparts to encourage a close collaboration
between the police and prosecutors in organized crime prosecutions in order to
plan disclosure at the earliest stages of an investigation. Such disclosure
should be guided by parameters of relevance which, to the greatest extent
possible, are codified.
The model for such codification could be the process that led to the
legislation of the so-called “rape shield laws”. Any defence request for
additional disclosure materials should be particularized in order to identify
the materials in question and to explain how they could assist the defence.
RECOMMENDATION
The Committee recommends that the Government of Canada work with
provincial and territorial counterparts to establish a model of electronic
disclosure that can serve as a standard Crown brief in all long, complex
organized crime cases. Such a brief should be the product of police and Crown
co-operation and should, amongst other exclusions, not include disclosure that
could identify a confidential informant or reveal a secret police investigative
technique.
On a number of occasions, the Committee was told that the Canadian
justice system is plagued with repeat offenders who take up an inordinate
amount of enforcement and legal resources. The burden that is being placed upon
police and the justice system would be lessened if there were a reduction in
the number of court appearances by repeat offenders. The argument here is the
“revolving door” nature of the justice system whereby certain offenders are
arrested over and over again, yet do not seem to receive sentences that are
commensurate with their repeated criminal behaviour. It is believed that the
community then suffers the harms caused by repeat offenders while the offenders
themselves are relatively unaffected.
Previous convictions are currently taken into account by judges
when passing sentence as a judicially recognized aggravating factor. They
relate to character, in that they disentitle an offender to consideration as a
first-time offender who is inexperienced or who has behaved out of character. The
consideration of previous convictions can be used in an effort at individual
deterrence, particularly where there is an indication of escalating offences. Such
convictions, however, may not be particularly relevant if they took place a
long time ago or were for very different conduct. The testimony before the
Committee, though, was to the effect that insufficient emphasis is placed on
repeated offences when sentence is imposed. The clearest means of rectifying
this lack of emphasis was thought to be to place this sentencing factor in the Criminal
Code as one of the principles
of sentencing.
The Committee heard testimony that, unlike other crimes in Canada
where addictions or stupidity may be the primary motivator, organized crime is
motivated by greed and profit; it relies on the victimization of the naive and
innocent. The Committee was, therefore, urged to recognize that serious crime
requires serious sentencing. The Committee also heard that prisoners convicted of criminal organization
offences were unlike other prisoners in that they were more likely to have been
married, employed and healthy, with fewer addiction problems. Once again, their
motivation for criminal activity would seem to be profit, rather than as a
response to their socioeconomic circumstances. These organized crime prisoners
tend to spend longer terms in prison but, once they achieve parole, they are
more successful as parolees.
The Committee was also informed that money laundering is an
important source of income for organized crime; it is almost impossible to run
a criminal organization if there is no avenue to launder money. This can lead
to corruption and infiltration of legitimate business. The Committee was also informed that enhanced sentences speak to the
denunciation of crime and a sense of justice to the community — some of the
objectives of sentencing. In Canada, however, the Committee was told that the
average sentence is 30 days for criminal offences and we are accomplishing
nothing with the status quo.
If sentences were increased in length, we should expect to see a reduction in
the level of criminal activity.
RECOMMENDATION
The Committee recommends that the Criminal Code be amended
to impose mandatory minimum sentences for the criminal organization offences,
particularly for the offence set out in section 467.13 of
the Criminal Code — Instructing Commission of Offence for
Criminal Organization.
RECOMMENDATION
The Committee recommends that the Criminal Code be amended
to increase penalties for money laundering offences.
The Committee was told on a number of occasions that we need to
address the issue of organized crime early in the lives of those susceptible to
joining gangs.
One witness told the Committee that we could start at the age of four because
the diagnosis of conduct disorder and oppositional defiance disorder can be
made at that age. It was also stated that by the third grade, it can be
determined which children will be life-course persistent offenders and which
are going to be adolescent-limited offenders. While
5% to 6% of criminals fall into the former category, they have a great deal of
influence over other young people. It was suggested that early intervention is
necessary to bring out the strengths of the child and lead them away from the
antisocial path.
The danger posed by gangs is their attractiveness in furnishing a
ready-made social network. Gangs provide a social opportunity and an economic
opportunity, much like any other business, although in this case a business
carrying on illegal activities.
No particular talent is required to join a gang — all that is required is a
need for money or belonging, as well as social pressures to join.
One of the witnesses heard by the Committee who runs a gang
prevention-intervention program for youth between the ages of 16 and 24 pointed
to the utter lack of connection the participants had to other activities in the
community. The goal of her program was to foster in its participants a sense of
belonging to something greater than themselves, which is known to reduce the
likelihood of gang participation. To
effectively prevent youth from joining gangs, it is necessary to understand how
youth become so disconnected. In other words, it is critical to know the risk
factors that tend to lead young people to become involved in gangs.
To answer the question of risks, we were pointed to a study
conducted by the National Crime Prevention Centre, which concluded that the
most important risk factors for gang involvement include negative influences in
the youth’s life, limited attachment to the community, over-reliance on
anti-social peers, poor parental supervision, alcohol and drug abuse, poor
educational or employment potential, and a need for recognition and belonging. A number of studies indicate that risk factors associated with gang involvement
are present long before a youth joins a gang. Unless the risk factors are
addressed early on, early negative life experiences and subsequent involvement
in crime will reinforce the path towards continued delinquency.
The Committee heard from a number of witnesses who work with youth
who may be attracted to the gang life. These witnesses stated that we need to
address the issue of why young people are attracted to gangs and how they may
be diverted from them. By the time young people are in a gang, it is often too
late to try to turn them away from a
life of crime.
The young people who are most likely to be drawn into criminal
activity are often from low-income families, experience social isolation, are
not generally successful in school, and do not have great hopes for success in
the future. The Committee was told that much youth crime is born out of a lack
of adult supervision or simply for survival purposes. Without the proper
intervention, petty criminal activities like trespassing, joy riding, underage
drinking, and disturbing the peace will likely progress, with or without gang
involvement. Violent youth crime is most often gang-related and gangs have a great appeal to
youth in these circumstances — offering status, financial gain, protection,
mentoring, affiliation, and excitement.
The Committee was informed that a commitment to crime prevention
programs that focuses on creating positive opportunities for youth,
particularly those most at risk, is not only a more effective way of reducing
crime, but it requires far less funding. After-school activities targeted at
the “prime time for juvenile crime” all have payoffs far greater than
the investment.
A number of witnesses who work with young people emphasized that
the key to effective interventions is that they be long-term and reliable. Effective
programs are undermined when they are time-limited or funding is removed after
a pilot program is completed. A challenge for programs for youth is that much
time and energy goes into applying for funding and developing contacts. The
uncertainty over the renewal of funding can make staffing difficult. The
turnover of staff entails a loss of expertise and the relationships those staff
have built up with youth. Youth
need programs that are welcoming and consistently available.
We heard that certain crime prevention initiatives have
demonstrated their value. There are many reputable organizations that work with
young people and respond to their needs. These needs include programs that
provide youth with opportunities to gain skills and confidence. These can only
be acquired over time. By providing adequate long-term funding, bolstering the
ability to enhance successful programs, and putting in place evaluations of
long-term impacts, governments would ensure that their funds produce the
greatest benefit. Every young person diverted from the criminal lifestyle
reduces the costs to the criminal justice system in responding to crime.
One of the witnesses before the Committee made reference to the
cost-effectiveness of funding after-school programs and other support systems,
as opposed to funding incarceration. There
was also a reference to a 1993 report of this Committee, which is referred to
by the Institute for the Prevention of Crime in its report entitled Building a Safer Canada. The
Institute cites the 1993 report of the Standing Committee on Justice and the
Solicitor General, also known as the “Horner Report”, as calling for the
allocation of the equivalent of 5% of the federal criminal justice budget
towards crime prevention. The Horner Report referred to a cost-benefit analysis
of the Perry
Preschool Project, which was implemented in Michigan in 1962. In this program,
children
aged 3 and 4 from backgrounds of poverty received daily preschool programs for
2.5 hours per day and a home visit once a week for 1.5 hours. Compared to a
control group of children who did not participate in the program, more project
children completed high school, attended post-secondary schools, and were
employed; fewer were on welfare or had an arrest record. The cost-benefit
analysis showed that for every $1 invested in a one-year program, there was a
return of $5. This was determined as the cost of the preschool participants
absorbing fewer public resources since they were more likely to be
well-educated and employed, and the reduced cost of their lower level of
criminal offences.
Risk factors do not cause crime nor do they guarantee that someone
will become involved in crime. The effects of socio-economic disadvantage can
be overcome by the presence of a supportive family life, adequate levels of
social support (such as community recreation programs), and a socially cohesive
neighbourhood. Yet some groups in Canada suffer disproportionately from risk
factors and, as a result, have higher rates of crime and victimization. One
such group is First Nations children, youth, and families.
Aboriginal peoples experience lower incomes, lower educational levels, higher
unemployment, higher rates of substance abuse, more family breakdowns, and
poorer housing conditions than the Canadian averages.
One approach to crime and victimization in Canada is reactive. In
this approach, we wait for victimization to occur, count on the victim or a
witness to call the police, and then count on the police to investigate the
offence and arrest the suspect(s). The matter then proceeds to the courts and
the offender may be punished. One problem with this approach is that a large
proportion of Canadians do not report criminal incidents to the police.
In its 2009 General Social Survey, Statistics Canada reports that, in all, 31%
of criminal incidents came to the attention of police. The second problem with the reactive approach is that, of the cases that do
come to the attention of the police, only some of those result in a formal
charge, so the offenders are not identified and brought to justice. Only about
58% of adult cases that do come to court result in a conviction while the
figure is 60% for youth court cases. Some
types of crimes, such as child, spousal, and sexual abuse are especially
underreported so the problems remain hidden from the criminal justice system. A
third difficulty with the reactive approach is that offenders who serve
custodial sentences are not necessarily rehabilitated when they return to
society. Furthermore, the prison population does not encompass all offenders. Finally,
the reactive approach often fails to address the underlying factors associated
with criminal behaviour.
The Committee was told by the Chief of Police of Saskatoon that
“Until we can tackle the social problems that are the contributors to crime — poverty,
poor housing, racism, addiction, and abuse — gang activity will flourish and
gangs will remain a viable option for those who are marginalized. We can lock
gang members away, but if, when they are released, they return to the same
environment they came from, it's very probable that they will once again
re-enter their former lifestyle.”
One sign of hope in the effort to combat organized crime is that
almost 80% of offenders belonging to gangs report that they are dissatisfied
with their lives and would rather live a life outside of the dictates of the
gang sub-culture. This
provides an opportunity for intervention to get gang members to no longer
affiliate with gangs.
This intervention, however, will be arduous and painstaking in terms of its
duration with the potential for violence and hostility needing to be assessed
and managed while offenders are incarcerated and then re-integrated into the
community.
RECOMMENDATION
The Committee recommends that the Government of Canada, in
partnership with its provincial and territorial counterparts, allocate more
resources in a stable, long-term manner for youth at risk of entering into a
criminal lifestyle. This funding should ensure that youth at risk have access
to programs to divert them from gangs and to promote alternatives to gangs.
The Committee was told, on a number of occasions, that a common
feature of urban gangs is that the primary focus of activity involves illicit drugs.
Crimes committed for drug-related reasons include property offences, robbery,
assault, and homicide.
Another aspect of drugs and organized crime is the exploitation of
drug-addicted youth. The Committee was informed that the typical wait in
Manitoba for a drug treatment bed is anywhere between 7 and 90 days. Most often, the stay in the treatment centre is between 21 and 28 days, which
has no relevance to how long a drug remains within an addict’s body.
Drug-addicted or drug-dependent youth are particularly vulnerable
to be preyed upon by organized crime when they lack stable, permanent housing. This
type of housing is the base that is needed to help drug addicts get through
treatment. Poor or non-existent housing is one of the “root causes” of crime
that the Committee was urged repeatedly to address. Providing housing is not a
panacea, but it does provide the platform from which other services can be
implemented more effectively.
The Committee has been informed by officials from Statistics
Canada, however, that the Uniform Crime Reporting (UCR) Survey, which was
introduced in 1962, excludes drug-related crimes. This is a very lucrative area
for organized crime.
The Committee was told that, from 1993 to 2007, the number of
marijuana plants seized across Canada increased eight-fold from about 238,000
plants to about 1.9 million plants per year. The amount of marijuana
seized increased almost seven-fold, from 7,314 kilograms to 49,918
kilograms. At an estimated $6 billion per year in British Columbia alone, this
is a very lucrative business for organized crime. British Columbia’s Organized
Crime Agency has estimated that organized crime groups control 85% of
British Columbia’s marijuana trade. Much of this trade is with the United
States where marijuana is traded for guns, cocaine, MDMA (ecstasy) and illegal
tobacco.
Aside from its role in funding organized crime, illegal marijuana
grow operations entail a number of public safety risks, including fire,
electrocution, structural hazards, and violence. This violence takes the form
of homicides, armed confrontations, drive-by shootings, and extortions.
The proceeds of organized crime in Canada are generally taxable. The Canada Revenue Agency (CRA) operates the Special Enforcement Program (SEP)
that attempts to collect tax money from individuals suspected of earning income
from illegal activities.
A large pool of untapped tax revenue is currently being lost because marijuana
grow-ops are not being taxed. The opportunity to tax this lucrative illegal
activity is being lost because there is no mechanism in place to automatically
share information about drug production operations with the CRA. In addition,
the risk of being audited would provide a financial deterrent to growing
marijuana, which would, in turn, disrupt a major source of funding for
organized crime. The suggestion was made to the Committee that police
organizations be required to report every file associated with drug production
to the CRA. Further
discussion and a recommendation on this topic are contained in the section
entitled “Proceeds of Crime”.
RECOMMENDATION
The Committee recommends that the Government of Canada, in
partnership with its provincial and territorial counterparts, allocate more
resources in the area of addiction services and numbers of treatment beds in
order to reduce wait times. The drug-addicted are particularly vulnerable to
recruitment into organized crime and any assistance in reducing this
vulnerability would be helpful.
RECOMMENDATION
The Committee recommends that Statistics Canada be required to
include in the Uniform Crime Reporting Survey all drug-related offences under
the Controlled Drugs and Substances Act.
Criminal organizations commonly engage in money laundering as it
can make their income from criminal activities appear legitimate. It is clearly
a widespread problem: according to Statistics Canada, in 2010, the police
reported 646 cases of offences under the Criminal Code relating to the
proceeds of crime, involving 546 alleged offenders.
The first legislation addressing the proceeds of crime came into
force in Canada in 1989. The Criminal Code was amended in 2005, reversing the burden of proof in requests for the seizure of the proceeds of
crime in the case of an accused party found guilty of an organized criminal
offence or an offence under certain provisions of the Controlled Drugs and
Substances Act. Under subsection 462.37(2.01) of the Criminal Code, the court must order
the seizure of an offender’s assets if it is satisfied, on the balance of
probabilities, that the person engaged in a pattern of criminal activity, or
that the income from sources not related to designated offences cannot
reasonably account for the value of all the offender’s property. The offender
may, however, avoid forfeiture if he or she establishes, on the balance of
probabilities, that the property is not the proceeds of crime.
Many witnesses told the Committee that these provisions are not
effective — and are therefore used very little or not at all — to confiscate property linked to a criminal organization, since the
prosecutor must always prove beyond any reasonable doubt whose property it is. Martine
Fontaine, Officer in Charge, Integrated Proceeds of Crime, RCMP in Montréal,
noted that “investigations become very complex because we have to prove that
the individual owns the property despite the fact that according to the land
registry, the property actually belongs to his wife, his daughter, his brother,
his father or his deceased mother, or that the car is a rental. Bank accounts
are hidden by fronts such as companies, trusts (…).”
Law enforcement agencies and Crown prosecutors accordingly prefer
to take action under provincial laws on the confiscation of the proceeds of
crime. Police services may invoke these laws independently to settle unresolved
cases or cases in which there is insufficient evidence to confiscate assets
under the Criminal Code.
The confiscation regime under provincial laws is indeed more
flexible. For example, Ontario’s Civil Remedies Act, 2001, — whose constitutionality was upheld by the Supreme Court of Canada — does not require an allegation or proof that a person has committed a
specific crime. Moreover, the forfeiture proceedings established by the Civil Remedies Act, 2001 do not require the identification of the owner
of the proceeds of crime. The example given by the Supreme Court pertains to
money seized from a gang safe house: “In such a case, the Attorney General may
be able to show on a balance of probabilities that money constituted the
proceeds of crime in general without identifying any particular crime or
criminal.”
In order to increase the effectiveness and use of the Part XII.2
provisions of the Criminal Code on the forfeiture of the proceeds of
organized criminal activity,
Francis Brabant, Legal Counsel, Sûreté du Québec, suggested the possibility of changing
the burden of proof when establishing the ownership of a criminal
organization’s proceeds of crime from “beyond any reasonable doubt” to “on the
balance of probabilities.” This would make it easier for prosecutors to prove that an asset that appears
to belong to a front really belongs to a member of a criminal organization, and
is therefore subject to seizure and confiscation. The Committee is of the
opinion that the confiscation of the proceeds of crime of criminal
organizations is crucial in fighting organized crime and supports the
implementation of measures to facilitate it, subject to individuals’ rights
and freedoms.
RECOMMENDATION
The Committee recommends that the Government of Canada consider the
possibility of amending Part XII.2 of the Criminal Code to allow for the
ownership of the proceeds of crime to be established on the balance of
probabilities in cases involving organized crime offences.
Members of criminal organizations often use corporations to conceal
their ownership of the proceeds of crime. Corporations are currently required
to present documents of incorporation and issue annual reports to federal and
provincial authorities. Yet, provincial and federal laws on incorporation often
require the name and contact information for a founder and board member only,
and not for the shareholders.
Annual reports provide the company’s address, the names of its officers and
directors, their home addresses and some other information. However, no
information about ownership is provided. This further complicates police
investigations into criminal organizations and the confiscation of their assets.
The use of front men, which is commonplace
in criminal organizations, also complicates police investigations. According to
Yvan Poulin, General Counsel, Public Prosecution Service of Canada, “It is
therefore very difficult to link individuals to goods that you attempt to
confiscate. Several years ago, it was the major problem and I would say that
the problem has remained unchanged. No matter to what extent the burden has
been reduced or in some cases transferred to the accused, you still must
establish a link between the asset and the individual in order to be able to
confiscate it.”
While it may be necessary to use front men or nominees for the sake
of competition, Ken Froese, forensic accountant and Senior Managing Director,
Froese Forensic Partners Ltd., maintains there should be a time limit on
their use.
This would provide a clearer picture of the involvement of persons under
investigation and their finances. He recommends a one-year limit on the use of nominees, from the date of
incorporation. After that time, the company would be required to provide
information about ownership or request an exemption. This would facilitate
investigations into the finances of suspected members of organized crime.
RECOMMENDATION
The Committee recommends that, at the next meeting of federal,
provincial and territorial ministers of justice, they consider the possibility
of amending federal and provincial laws governing corporations in Canada so
that the by-laws establishing a corporation and its annual reports provide
information about its ownership, including the shareholders’ names and
addresses. The ministers should also consider the possibility of establishing a
time limit on the use of nominees in order to make the identity of the owners,
officers and directors known.
Criminal organizations sometimes use over a dozen different
financial institutions throughout Canada and the world to conceal their proceeds
of crime. A single police force often does not have the resources to track all
the movements of illegal funds. This is why FINTRAC was created in 2000. In
carrying out its mandate, FINTRAC can disclose information to police services
when there are reasonable grounds to suspect that it would be useful in support
of investigations and prosecutions relating to money laundering or terrorist
financing. FINTRAC is a useful source of information for all police services in
Canada due to its ability to track funds from criminal activities in Canada and
around
the world.
Under the Proceeds of Crime (Money Laundering) and Terrorist
Financing Act, certain persons and entities — such as financial
institutions, securities brokers, accountants and casinos — are required to
report to FINTRAC information on various types of financial transactions. In
particular, they must report information regarding suspicious transactions
relating to money laundering or terrorist financing, regardless of the dollar
value involved, and cash transactions of $10,000 or more.
In an investigation of the Hells Angels, it was difficult to follow
the money trail because liquid assets and their proceeds were not deposited
into financial institutions or recorded. It is very difficult to track cash transactions
in order to create a financial profile of those suspected of organized criminal
activity. Such persons usually spend large amounts in cash. Ken
Froese, who has examined the circumstances under which fairly large amounts
of cash were spent, maintains that it would be helpful in police investigations
of organized crime to be able to track payments of $10,000 or more involving
automobile dealers, companies that operate private automatic banking machines, construction and home renovation companies, racetracks, law firms and cash
payments of $1,000 or more at hotels. The declaration of such major cash
purchases, which can reasonably be believed to be of the kind made by a member
of a criminal organization — would help law enforcement agencies create a
financial profile of a person or groups of persons subject to an investigation. Yet the companies Mr. Froese suggested are currently not required to
report information to FINTRAC. Chantal Jalbert, Assistant Director, Regional
Operations and Compliance, FINTRAC, stated however that the current list of
reporting bodies is complete and effective.
RECOMMENDATION
The Committee recommends amending the regime under the Proceeds
of Crime (Money Laundering) and Terrorist Financing Act to require automobile
dealers, companies operating private automatic banking machines, construction
and home renovation companies, racetracks and law firms to report cash transactions
of $7,500 or more to FINTRAC. Guidelines would have to be established, however,
to ensure that the reporting requirement imposed on law firms does not violate
confidentiality or lawyer-client privilege.
Under section 462.48 of the Criminal Code, the Attorney
General may submit a request to a judge to obtain tax information from the CRA
regarding a person for whom there are reasonable grounds to believe that they
committed an organized crime offence, a terrorism offence, a designated
substance offence, such as drug trafficking, importing or exporting, or an
offence involving the laundering of proceeds of crime from the commission of a
designated substance offence.
While drug trafficking is the most significant market for criminal
organizations, they have increasingly diversified their activities to include
financial crime, money laundering, identity theft, tobacco smuggling, arms
dealing, human trafficking, cybercrime, vehicle theft and counterfeiting of
consumer products and medications. The Committee was told that the current
application of section 462.48 is too limited. During an investigation, the
police said they did not have the tools needed to obtain federal tax
information. To effectively fight organized crime, we must be able to identify the proceeds
of organized crime from all sources, and not limited to the drug trade. Section
462.48 should therefore be amended to give prosecutors access to tax
information about persons for whom there are reasonable grounds to believe that
they committed a money laundering offence involving the proceeds of any
criminal offence subject to indictment.
RECOMMENDATION
The Committee recommends that section 462.48 of the Criminal
Code be amended to include the offence of money laundering involving
property, objects or proceeds acquired through an offence designated in section
462.3(1) of the Criminal Code.
The proceeds of crime are taxable in the same way as legitimate
income is.
The CRA is empowered to use a number of tools to enforce the Income Tax Act,
including civil measures and criminal proceedings leading to fines, penalties
and prison sentences. Under its Special Enforcement Program, the Agency
conducts audits of individuals suspected of earning income from organized crime
or any other illegal activity. These audits lead to new levies and penalties
and interest, if applicable. The CRA also administers the Criminal
Investigations Program (CIP). Under this program, the Agency investigates
suspected cases of tax evasion, fraud and other serious violations of tax laws.
The CRA works closely with the RCMP, provincial and local police
services and other law enforcement agencies to stop the spread of organized
crime. Since 2003, it has had a relationship with police organizations for the
reporting of illicit drug operations to the Agency. It was pointed out to the
Committee, however, that police organizations are not required to report all
drug production cases. To enable the CRA to apply the Income Tax Act to more frequently target
the proceeds of crime of illicit drug operations, police services in Canada
should report all illicit drug production to the Agency.
RECOMMENDATION
The Committee recommends that the federal, provincial and
territorial ministers of justice, revenue and public safety consider the
possibility of requiring law enforcement agencies to report illegal drug
production in Canada to the Canada Revenue Agency.
Seized or confiscated property, or money that is not used to
compensate victims or that cannot be returned to an innocent third party, is
confiscated by the Crown.
The proceeds of crime confiscated by the Crown is shared, under grant programs,
among the various orders of government and police services, in keeping with a
statutory formula and the contribution made by each of them to the
confiscation. At the federal level, in drug-related charges for instance,
property is shared in accordance with the Forfeited Property Sharing
Regulations pursuant to the Seized Property Management Act. The
Seized Property Management Directorate is responsible for the management and
disposition of proceeds pursuant to a court order of management.
Once a court has issued an order of management, the Seized Property
Management Directorate takes action to that effect. In some cases, however, it
can take from one week to six months for such an order to be issued. In the
meantime, the police service is responsible for and bears the cost of managing
the assets in question. Don Perron, who works with the Organized Crime
Enforcement Bureau and is part of the Ontario Provincial Police Asset
Forfeiture and Identity Crimes Program, noted that police services do not have
the resources they need to carry out this temporary responsibility. The Seized Property Management Directorate should therefore assume
responsibility for property management from the time it is seized.
RECOMMENDATION
The Committee recommends amending the Forfeited Property Sharing
Regulations and the Seized Property Management Act so that the
Seized Property Management Directorate can assume responsibility for managing
the property as soon as it is seized.
While the provinces appear to receive their fair share of the funds
seized under the Seized Property Management Act, Peter Shadgett,
Director, Criminal Intelligence Service Ontario, raised concerns regarding the
use of these funds to effectively fight organized crime. The confiscated assets would be sufficient to at least partially fund the work
of law enforcement agencies in fighting organized crime.
RECOMMENDATION
The Committee recommends that, at the next meeting of federal,
provincial and territorial ministers of justice, consideration be given to
awarding more of the funds from the confiscation of the proceeds of crime to
fighting organized crime.
According to a number of witnesses, including law enforcement
officials, electronic eavesdropping legislation has not kept pace with recent
changes in telecommunications. Despite some amendments, the structure of Part
VI of the Criminal Code, which pertains to electronic eavesdropping, has
remained unchanged since 1974. There is no Canadian law at present that
requires all telecommunications service providers, including Internet service
providers and telecommunications device manufacturers, to use devices that
allow for interception. As a result, it is increasingly difficult, if not
impossible in some cases, for law enforcement officials to legally intercept
communications. There are lengthy delays and the costs are high. Yet this
method of investigation is often essential in fighting organized crime.
Moreover, when communications can be intercepted, not all telecommunications
service providers release standardized information to law enforcement agencies.
Legislation could address this lack of a standard regarding the
interception of telecommunications. Bill C-30 has recently been introduced to require telecommunications service providers to
have the ability to intercept communications on their networks and to provide
the intercepted communication in the form specified by law enforcement. This includes
decrypted communications if the telecommunications service provider has the
technical capacity to provide this. Law enforcement officials suggested that
these requirements be extended to manufacturers of telecommunications devices
such as the BlackBerry and other smart phones.
RECOMMENDATION
The Committee recommends that the Government of Canada pursue
legislation requiring telecommunications service providers and
telecommunications device manufacturers to build the ability to intercept
telecommunications into their equipment and networks.
RECOMMENDATION
The Committee recommends that the Government of Canada introduce
legislation requiring telecommunications service providers and
telecommunications device manufacturers to decrypt legally intercepted
communications or to provide assistance to law enforcement agencies in this
regard.
According to law enforcement agencies, it is difficult to
consistently obtain from telecommunications service providers such basic
information as their clients’ names and addresses. Without explicit statutory
requirements, some service providers voluntarily disclose this information
while others require a warrant before releasing the information requested.
Furthermore, there have been contradictory court decisions on this matter.
While some courts require law enforcement agencies to produce a warrant to
force service providers to disclose their clients’ names and addresses, others
do not consider a
warrant necessary.
In some cases, therefore, a police service that has an IP address
associated with the commission of an offence must obtain a warrant to require
the Internet service provider to disclose the name of the subscriber of this IP
address. The warrant must as a rule include the name of the party suspected of
the offence.
To address this problem, a special system could be established
enabling law enforcement agencies, without a court order, but under certain
conditions, to require a telecommunications service provider to provide basic
information identifying their subscribers, such as their name, IP address, e-mail
address or telephone number.
Bill C-30 includes such a provision.
RECOMMENDATION
The Committee recommends the establishment of a statutory mechanism
enabling law enforcement agencies, without a warrant, to require
telecommunication service providers to disclose basic information identifying
their subscribers. Privacy measures would have to be created, however, and
prior court authorization would always be required to allow these agencies to
intercept private communications.
A number of witnesses appearing before the Committee reported that
the frequent replacement of cell phones by members of organized crime (for
instance, a device may be used for a few hours only for the commission of an
offence) and the use of prepaid cell phone services make it more difficult for
law enforcement agencies, since they allow users to remain anonymous. At
present, cell phone merchants are not required to verify purchasers’ identity.
RECOMMENDATION
The Committee recommends that the Government of Canada examine the
possibility of requiring cell phone merchants to verify the identity of purchasers.
It could also determine whether it would be appropriate to impose the same
requirement on telecommunications
service providers.
The court may grant permission initially to engage in electronic
eavesdropping for a maximum of 60 days (section 186(4)(e) of the Criminal
Code). This maximum period is extended to a year for the investigation of
organized crime offences (section 186.1 of the Criminal Code). However,
as Claude Bélanger, Former Principal General Counsel, Department of Justice
noted, permission to install a GPS on a vehicle (tracking warrant) may only be
granted for a maximum of 60 days, regardless of the type of offence
(section 492.1(2) of the Criminal Code). Further tracking warrants may
be issued, but the Committee was told that the more actions that are required
to continue an investigation, the greater the chances are of jeopardizing that
investigation. The Committee is of the opinion that the standardization of the maximum
duration of a tracking warrant with the electronic eavesdropping warrant would
be helpful in fighting organized crime.
RECOMMENDATION
The Committee recommends that section 492.1 of the Criminal Code be amended to allow for the use of a tracking warrant for an initial maximum duration
of one year for the investigation of an organized crime offence.
One of the problems mentioned to the Committee was the use of
countersurveillance techniques by criminal organizations to detect the use of
electronic eavesdropping devices by the police and to create interference
fields. According to Calgary Chief of Police, Rick Hanson, many police officers
conducting traffic stops have lost the use of their phone and, in some cases
their radio, because of jamming devices.
RECOMMENDATION
The Committee recommends that the Government of Canada examine the
possibility of creating an offence in the Criminal Code regarding the
use, possession, sale, manufacturing and importing of
jamming devices.
The “mega-trial” phenomenon is generally characterized by lengthy
investigations, usually involving wiretapping and joint enterprises, which
usually means a large number of accused and counts, and considerable quantities
of evidence. Organized crime cases often deal with sophisticated accused parties
who have used sophisticated methods to avoid detection or are engaged in
extensive criminal activity. As a result, the proof of the Crown’s case may
involve production of many pages of wiretap transcripts, surveillance reports,
witness statements and other documentary evidence. These cases present major
challenges for all components of the justice system.
On February 25, 2008, the Ontario Ministry of the Attorney General
appointed former Chief Justice Patrick Lesage and Professor Michael Code (now
Justice Code) to conduct a review of large and complex criminal case
procedures. The report was released on November 28, 2008 and contained 41
recommendations. A
number of the recommendations were taken up at the federal level in Bill C-2,
An Act to amend the Criminal Code, which received Royal Assent on June 26, 2011.
In the Lesage-Code report, the authors state that the general
effect of the criminal organization legislation is to enact an aggravated form
of already existing offences, if the accused can be proven to be part of a
“criminal organization.” Many of the “mega-trials” in Ontario and elsewhere are
gang-related and require a great deal of time to prove the additional aggravating
“criminal organization” element. The authors point out that in the leading
“criminal organization” case in Ontario, the underlying extortion offence was
proven by the Crown in one week, while the “criminal organization” portion of
the trial then lasted for approximately six weeks with complex and lengthy
evidence about the
Hells Angels.
In 2011, another important case relating to the Hells Angels was
decided, this time in Québec – R. v. Auclair. One hundred and fifty-six people allegedly associated with the Hells Angels
were arrested in 2009 and charged with various offences including murder,
conspiracy to commit murder, trafficking in illegal substances, conspiracy to
traffic in illegal substances and the commission of an indictable offence for
the benefit of, at the direction of, or in association with, a criminal
organization. The accused sought a stay of proceedings due, in part, to an
allegation that it was an abuse of process that a lengthy delay was anticipated
before any trial would begin.
The Quebec Superior Court concluded that a single trial of 29
charges against
155 accused (one of the accused was deceased by that time) was not possible. The
court found that there was no abuse of process, but divided the accused into a
number of groups based on location and the accusations against them.
The main issue for the court was that there were only two
appropriate courtrooms where the trials could take place in the entire province
of Quebec. The 13 trials that would be required after the court divided the
accused into groups would have resulted in some accused waiting until 2021 to
start their trial, based on the availability of only two appropriate
courtrooms. This was found to be an unreasonable delay and the court ordered
that only the trials of the accused charged with murder and conspiracy to
commit murder should go ahead. Those accused who were not facing such charges
(31 in total) were ordered to be released from custody. The court noted that it
is up to police and prosecutors to plan their investigations and prosecutions
based on the existing capacity in the justice system. The decision is being
appealed to the Quebec Court of Appeal.
Although Bill C-2 does not address the lack of appropriate
courtrooms, which is a provincial matter, it does address a number of other
issues related to “mega-trials”.
The approach taken by Bill C-2 is to add a new Part XVIII.1 to the Criminal
Code to allow for the appointment of a case management judge. This judge
may be different from the trial judge but will have extensive pre-trial powers,
including the ability to adjudicate issues concerning the disclosure of
evidence, the admissibility of evidence, and expert witnesses. Any such
decisions would be binding on the trial judge, unless it would not be in the
interests of justice.
Bill C-2 also provides for a joint hearing to allow for preliminary
decisions to be made that would be binding on separate but related trials in
the same province before a court of the same jurisdiction. Similarly, severance
of trials for multiple counts or multiple accused may be postponed to allow for
one decision to be made regarding disclosure, admissibility of evidence and Charter
of Rights issues that would be binding in all of the subsequent trials. The
bill also provides that, in the case of a mistrial, certain decisions made
during the trial are binding on the parties in any new trial. Finally, Bill C-2
would make it easier to correct errors with direct indictments and avoid new
bail hearings when a direct indictment is preferred.
In addition, in order to protect jurors, Bill C-2 provides that
they will generally be called by a number, rather than their name, and access
to juror cards and lists can be restricted where necessary for the proper
administration of justice. Bill C-2 also allows for the swearing in of up to 14
jurors for lengthy trials, subject to a random selection process that will
determine which jurors will deliberate.
Though not addressed in Bill C-2, the Lesage-Code report also
examined ways to avoid lengthy procedural delays in major terrorism
prosecutions. A significant feature of terrorism prosecutions that sets them
apart from other long, complex criminal trials, is the likelihood that national
security evidence will factor into the case. The claim of privilege, pursuant
to section 38 of the Canada Evidence Act, therefore, will become a common
feature of such prosecutions. Section 38 removes the national security issue
from the trial court and gives exclusive jurisdiction over the matter to the
Federal Court. This section also allows for interlocutory appeals. Both of these features of section 38 tend to delay terrorism trials. Section 38
could be amended to give the Superior Court of Justice jurisdiction to rule on
claims of national security privilege and to remove the ability to appeal such
rulings before the trial has ended.
A further difficulty that is posed during “mega-trials” is that of
unrepresented litigants. An unrepresented accused person who is intent on
controlling or disrupting a trial, or who simply does not know how to conduct a
trial, can turn a relatively straightforward trial into a lengthy and complex
matter. It then becomes a challenge for the trial judge to ensure in these
circumstances that the unrepresented or self-represented accused receives a
fair and efficient trial. This can create a conflict between the impartiality
of a trial judge and his or her need to intervene to protect the rights of the
accused. Yet section 651(2) of the Criminal Code sets out the statutory
right of an accused to be self-represented, and the Supreme Court of Canada has
ruled that an accused person has control over the decision of whether to have
counsel.
While an accused person has the right to be present during the
whole of his or her trial, section 650(2)(a) of the Criminal Code provides
that an accused who interrupts the proceedings and interferes with the conduct
of the trial may be removed from the courtroom. There is, however, no power
vested in the trial judge to appoint counsel for a self-represented accused in
these circumstances. An amendment to the Criminal Code could be made to
provide this power. There is precedent for the appointment of counsel
regardless of the wishes of the accused. For example, section 672.24(1) of the
Code provides that, where the court has reasonable grounds to believe that an
accused is unfit to stand trial, and the accused is not represented by counsel,
the court shall order that the accused be represented by counsel.
The Public Prosecution Service of Canada has also addressed the
“mega-trial” issue. It endorses the cooperation of Crown counsel with the
investigative agency and points out that counsel are required, on an ongoing
basis, to assess every case according to the test of whether there is a
reasonable prospect of conviction and whether prosecution is in the public
interest. A review of the charges should be done before they are laid.
Then, the consideration of the public interest factor should take into account
what will be strategically feasible. A prosecution that is so large and complex
that no reasonable juror will be able to follow the evidence does not serve the
public interest.
RECOMMENDATION
The Committee recommends that the Canada Evidence Act be
amended to give the Superior Court of Justice jurisdiction to rule on claims of
national security privilege and remove the ability to appeal such rulings
before the trial has ended.
RECOMMENDATION
The Committee recommends that the Criminal Code be amended
to provide a power to appoint counsel for a self-represented accused where the
continued presence of the accused makes a fair
trial unfeasible.
In 1984, the RCMP established a witness protection program (WPP) to
protect individuals collaborating with the justice system. In 1996, the Witness
Protection Program Act came into force, ensuring that WPP applicants had a clear understanding of
their rights and obligations, as well as the scope of the protection that could
be afforded.
The Act also addressed the admission criteria for witnesses, the obligations of
those who administer the program, and the requirements of reporting to
Parliament.
The federal WPP is one of the resources accessible to law
enforcement in Canada which can provide protection and support to witnesses who
find themselves at risk as a result of their participation in the justice
system. This protection may be particularly useful in organized crime cases due
to the extreme violence demonstrated by organized crime, its extensive
financial resources, and its willingness to exact revenge against those willing
to cooperate with law enforcement. The increasing capacity of organized crime
to locate and intimidate or harm witnesses, often through the expanded use of
technology, has required witness protection processes to evolve and adapt over
time.
The federal WPP is not the only such program in Canada. The
provinces of Alberta, Ontario, Quebec, Manitoba, and Saskatchewan all have a
WPP in place. The programs in Alberta, Manitoba and Saskatchewan are based on
legislation while those in Quebec and Ontario are based on policies adopted by
the police. The provincial programs, as well as programs that exist at the
municipal level, were generally created to meet the short-term needs of
witnesses prior to a trial and not necessarily to accommodate the needs of
those requiring life-long protection or a change of identity.
There is no dedicated federal funding for the federal, provincial,
or municipal WPPs. This can create impediments when serious crimes are being
investigated, but there are not sufficient resources to pay for witness
protection. The RCMP currently spends approximately $7 million to $8 million to
protect 830 witnesses, but these numbers can easily fluctuate. This money can be used to fund relocation, accommodation, change of identity,
psychological counselling, and financial support to facilitate the witnesses’
re-establishment or ability to become self-sufficient, in addition to officers’
wages. On the issue of funding, the Committee heard that, in order to place a
witness in the federal WPP, local police forces have to pay the cost, which can
make the program unaffordable for smaller jurisdictions. If the program is not used and witnesses do not come forward because of this
failure, it may become harder and harder to infiltrate organized crime.
Once admitted into the WPP, a witness must enter into a protection
agreement, which contains the obligations of both parties. Section 11 of the
Act states that it is an offence to knowingly disclose, directly or indirectly,
information about the location or a change of identity of a protectee or former
protectee. Protectees and former protectees can, however, disclose information
about themselves so long as this does not compromise the integrity of the WPP
or endanger other protectees. The RCMP may terminate protection if the
protectee deliberately infringes a condition of the protection agreement or if
there is evidence of a material misrepresentation. The statute allows the
Minister of Public Safety to enter into an agreement with a foreign government
or an international court or tribunal to admit foreign nationals into the WPP.
A current challenge to the WPP is the lack of resources. Increasing
demands are being placed upon the WPP as a result of expanding gang activity
and the offer of protective services to those associated with gangs who wish to
provide testimony but are afraid of reprisals. As such, even when the number of
people in the WPP has decreased, the budget has not necessarily decreased as
improvements to the program are made and the costs to protect each individual
witness increase.
The provinces have also requested that changes to the WPP be made
to facilitate their ability to obtain federal identification documentation
without having to enter their protectees into the federal WPP, which is the
current practice. The
RCMP and Public Safety Canada are in agreement with this suggestion and are
currently working to develop a secure process to implement it.
While our Committee did not undertake a thorough review of the
federal WPP, the House of Commons Standing Committee on Public Safety and
National Security did carry out such a study. Its report, entitled Review of
the Witness Protection Program, was published in March 2008. That Committee made nine recommendations, and in its response the Government of
Canada, it stated: “the appropriate time must be devoted to studying best
practices and lessons learned by our international partners so that we may
develop, along with our federal, provincial and territorial partners, the best
possible program for Canada. Consultations with our partners are currently
underway and the Committee’s recommendations will certainly help guide further
discussions and inform future enhancements to the Program.”
We note that, in its testimony before our Committee, the RCMP
stated that it had developed an internal document with a number of
recommendations. First, consideration is being given to amending the Witness
Protection Program Act to better respond to the needs of provincial partners.
Second, the RCMP is changing its WPP program to improve the services it offers
so that, for example, the WPP will be more “protectee focussed”, address more
fully the safety of WPP personnel and the public, and provide greater
accountability. A Risk Assessment and Management model is being finalized to
ensure that national standards are consistently applied prior to entry into the
program.
Training has been increased and there is greater consideration of the
socio-psychological needs of protectees. Finally, new technologies will be used
to better monitor cases, identify issues, increase accountability and improve
the accuracy of reporting.
RECOMMENDATION
The Committee recommends that there be dedicated federal funding
for the federal Witness Protection Program. This funding should at least
provide a base level for the maintenance of the WPP at its current level of
need. Funding should be assessed annually and increased, as needed, to aid in
the fight against organized crime.
RECOMMENDATION
The Committee understands that the RCMP and Public Safety Canada
are currently working to amend the current WPP practice to facilitate the
ability of provincial witness protection programs to obtain federal
identification documentation without having to enter their protectees into the
federal WPP and recommends that this change be instituted as soon as possible.
In Edmonton, the Committee heard that $17 million in drugs had been
seized by the Canada Border Services Agency (CBSA) Prairie Region in 2009. The majority of the drug seizures have involved cocaine from South America,
doda from the United States, and khat from Africa. While most drug shipments
arriving by air do so outside the Prairie Region, there have been increases in
the number of drug shipments at the Calgary and Edmonton International
Airports. A challenge for the CBSA is to identify suspect containers and
shipments as organized crime uses legitimate companies to conceal their
drug shipments.
While in Winnipeg, the Committee heard testimony about the problems
created by the 460-kilometre border between Manitoba and the United States. In
remote areas along this border, organized criminal groups recognize the
advantages of operating there as the risk of detection is minimal. In addition,
the ready access to firearms in the U.S., along with the many potential
customers for illicit goods, makes the area attractive to organized crime. The
Committee also heard that organized criminal groups are diversifying into such
areas as the importation and selling of counterfeit goods. The risk of
apprehension is low and the investigations, which often cross international
boundaries, can be very complex and involve victims in multiple jurisdictions
and countries, making prosecution difficult and in some cases impossible. Another potential border threat to Manitoba is the targeting of the port of
Churchill by organized crime as a means to gain relatively easy access into
North America. This threat will grow as ocean access into Hudson’s Bay could
become ice-free in the near future.
The scale of the issue of border control was brought home to the
Committee during its hearings in Montréal. The CBSA in the Quebec region is
responsible for securing 32 land border crossings, 25 airports (including
3 international airports), 9 marine ports, 6 railroad stations, and 5
inland customs offices. Each year, the CBSA in the Quebec region processes more
than 4 million air passengers, 6 million road travellers, and approximately 2
million commercial releases. Out of these totals, the CBSA conducts nearly
600,000 examinations each year. In 2008, the CBSA in the Quebec region
took nearly 16,000 enforcement actions resulting in 2,451 narcotics
seizures and 378
currency seizures.
Another aspect of the work of the CBSA is immigration inland
enforcement. Employees in this area work to ensure the successful deportation
of people who are deemed inadmissible to Canada. Enforcement related to
organized crime in this area is of great importance to the CBSA due to section
37 of the Immigration and Refugee Protection Act. This section states that a permanent resident or a foreign national is
inadmissible on grounds of organized criminality for (a) being a member
of an organized criminal group; or (b) engaging, in the context of
transnational crime, in activities such as people smuggling, trafficking in
persons or money laundering.
In addition to seizing illegal goods, which includes precursor
chemicals used in the manufacture of ecstasy and methamphetamines, and
immigration inland enforcement, the Criminal Investigation Division of the CBSA
investigates and initiates prosecution for criminal offences against Canada’s
border legislation. This includes suspected misrepresentations, evasions, or
commissions of fraud with respect to the international movement of goods and
people.
Finally, the Intelligence Division of the CBSA has a mandate to
identify threats to Canada and to communicate this information to its law
enforcement partners. Intelligence officers and analysts work on such issues as
export control, missing children, fraudulent documents and the smuggling of
various types of contraband, including humans, tobacco, illicit drugs, and
weapons. The work of the Intelligence Division can lead to the realization that
an individual is part of a larger group, such as organized crime. In Toronto, the Committee heard about the activities of the Pearson
International Airport Intelligence Unit or the YYZ Intelligence Unit. The work
of this unit has resulted in the dismissal of over 50 airport employees.
Section 515 of the Criminal Code currently provides for the
detention before trial of those persons charged with offences whom it is feared
may not appear in court to answer the charges against them, or where there are
grounds to believe that the person would commit further offences if they were
not detained. A concern expressed by the former Edmonton Chief of Police was
not so much with the legislation needed to protect the public as it was that
the legislative processes are not being used to the extent that they should be.
This is especially the case with prolific, chronic or repeat offenders. As a
result, the public is not being properly protected from further victimization.
Former Chief Boyd referred to studies carried out in Edmonton and
Halifax in 2006 and 2008 that examined criminal offender backgrounds. These
studies revealed that offenders were arrested and released dozens of times,
where they breached their conditions of release multiple times, and where they
re-offended, harming the public.
The background of these chronic offenders suggests that they should be
incapacitated through pre-trial detention. While these chronic offenders are
often dependent on alcohol or drugs, which is a health issue, it becomes an issue
for the criminal justice system when they harm others in their quest for money
to buy alcohol or drugs. The Committee was urged to make consideration of the
risk assessment carried out for bail hearings mandatory. In other words,
reference to this assessment must be made in the decision to release an accused
person pending trial. The Committee was also urged to update bail laws to take
account of such options as electronic monitoring.
RECOMMENDATION
The Committee recommends that section 515 of the Criminal Code be
amended to specify that one of the conditions of an order granting interim
judicial release can be an order to wear an electronic monitoring device.
The Lesage-Code report noted that Legal Aid Ontario (LAO) may have
contributed to the phenomenon of overly-long criminal trials in Ontario by the
steady diminution of the legal aid tariff while trials were becoming longer and
more complex. This has led to many leading members of the bar not taking on
such trials. These senior and experienced counsels could be relied upon to
focus on the essential issues in a trial and to conduct it in a responsible and
efficient manner. Today, however, such counsels tend to avoid lengthy, complex
trials as not being feasible financially. The inexperienced counsels that do
take on long trials at the legal aid tariff require advice and supervision as
to how they should conduct a defence so that trials are not unduly protracted.
LAO administers a Big Case Management (BCM) program. The BCM
program has been created to deal with particularly large cases that are likely
to exceed the cost of an average legal aid certificate. The BCM program covers
cases that cost LAO between $20,000 and $75,000. If the case exceeds this upper
limit, there is a further degree of oversight from a panel of experts known as
the Exceptions Committee. Approximately 25% of the LAO criminal budget is spent
on BCM cases. These cases are increasingly being conducted by junior lawyers,
while the Lesage-Code report notes that, between 1999 and 2007, there was a 15%
decline in the number of senior lawyers who took on any Legal Aid cases.
The preferred means of dealing with this situation is to pay higher
fees and restrict eligibility to ensure that highly qualified lawyers will take
on long, complex cases.
The enhanced fees will make it economical for senior counsels to take on the
defence in such cases. The benefit is that the trials should end up being
shorter and less costly, as senior counsels will generally focus on the real
issues in the case and will have no reason to unduly prolong the case.
An issue related to that of the role of counsel in complex trials
is the problem of recruiting and retaining talented lawyers in the Public
Prosecution Service of Canada.
The Committee was informed that the salaries of federal prosecutors have fallen
behind
those of a number of provinces. The result is that, after federal prosecutors
have amassed a certain amount of experience, they transfer to the provinces at
salaries that could be as much as 40% to 60% higher.
RECOMMENDATION
The Committee recommends that the federal contribution to legal aid
be reviewed for “mega-trials” with a federal law element (such as prosecutions
under the Controlled Drugs and Substances Act) in order to
attract senior counsel.
RECOMMENDATION
The Committee recommends that the Government of Canada review the
salaries of prosecutors with the Public Prosecution Service of Canada to
determine whether they are comparable with the salaries of prosecutors with
provincial prosecution services.
A key component in the fight against organized crime is public
education.
This takes many forms. One is educating the public about the dangers of
counterfeit goods. One of these dangers is that a counterfeit of, for example,
medicine may, in fact, be harmful. A second danger is that a member of the
public might think that he or she is getting a “good deal” when purchasing a
deeply-discounted counterfeit product. But the labour of many people was
exploited in the making of that product and the profit from the sale goes
straight into the pocket of organized crime.
To combat payment card fraud, users of these cards need to learn
about the scams perpetrated by organized crime and ways to protect themselves. The
purchase of contraband tobacco may seem advantageous from a financial
standpoint but it is not a “victimless crime”, as it funds large organized
crime groups and leads to a significant tax revenue loss.
The Committee was told that organized crime relies for its success
upon its ability to prey upon the naive and the vulnerable. The way to combat
this is through public education. Such education has to start at a young age so
that children get the right messages about drugs and cyber-predatory behaviour.
It is these elements that lead to approaches for prostitution and gang
involvement. There is no other way to explain the continuing success of
Internet frauds other than public ignorance. There must be a national
commitment to education to reduce levels of victimization.
RECOMMENDATION
The Committee recommends that there be a review of federal public
education programs to assess their adequacy and effectiveness in reducing the
level of victimization caused by organized crime.
A continued refrain throughout the Committee’s hearings was that
expressed by a number of police officers who told the Committee that the key to
tackling organized crime is to have a strong enforcement strategy but, equally,
to have a strong prevention strategy as well. If the problem of organized crime
can be addressed at the front end, it will make the job of the police a lot
easier at the back end. Another
way of expressing this was that it is all well and good to have diversion
programs in the Youth Criminal Justice Act, but we need some place to
divert youth to. If youth are living in a terrible situation to begin with, and
if the only solution we have is to put them in the criminal justice system,
then we cannot expect any different outcome other than continued criminal
activity.
Another aspect of the prevention of crime policy deals with
immigrants.
The Committee was informed that the lack of accessible places for immigrants
with programming directed at them as children and youth will have consequences
later on when and if they become involved with the law.
Finally, the Committee was told that a prevention approach is about
working with people in a number of sectors; not just the police, but also the
environmental sectors, housing, health, education, youth, and social services. These
actors target the areas and the groups most at risk and put facilities and
support into education and recreation and other alternatives to young people
joining a gang. It is these efforts, in combination with those of law
enforcement, that will yield the results we seek. As one witness put it, focused, proactive policing is necessary when dealing
with organized crime, but if we concentrate on policing alone and do not
address the contributing factors to crime, we will never make any significant
inroads to preventing crime in the first place.
RECOMMENDATION
The Committee recommends that the Government of Canada work with
the provinces and territories to put in place a comprehensive crime prevention
program.