Evidence of meeting #25 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was organization.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

  • Michel Aubin  Director, Federal and Internatioal Operations, Royal Canadian Mounted Police
  • Serge Vandal  Lieutenant, Officer in Charge, Organized Crime Intelligence Unit, Sûreté du Québec
  • Gary Shinkaruk  Officer in Charge, Project E-Pandora, Royal Canadian Mounted Police
  • Christopher Mainella  Senior Counsel, Public Prosecution Service of Canada
  • Kent Roach  Pritchard-Wilson Chair, Faculty of Law, University of Toronto, As an Individual
  • Francis Brabant  Legal Counsel, Sûreté du Québec
  • Jocelyn Latulippe  Chief Inspector, Director of Criminal Investigation Services, Sûreté du Québec

12:25 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Do I still have time?

12:25 p.m.

Conservative

The Chair Ed Fast

Mr. Comartin, you have about 40 seconds.

12:25 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Just to go back to deciding code, is that report being looked at by the justice department in terms of actually coming forward with some recommendations to amend the evidence act or the code?

12:30 p.m.

Senior Counsel, Public Prosecution Service of Canada

Christopher Mainella

I'm not aware of that.

12:30 p.m.

NDP

Joe Comartin Windsor—Tecumseh, ON

Thanks, Mr. Chair.

12:30 p.m.

Conservative

The Chair Ed Fast

We'll move on to Mr. Rathgeber. You have five minutes.

May 26th, 2009 / 12:30 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Thank you, Mr. Chair.

Thank you to all the witnesses for your attendance here this morning.

I'm inclined to support the listing of criminal organizations. Following up on my friend Mr. Murphy's line of questioning a few minutes ago, I guess I don't have a very good appreciation for exactly what the problem is, notwithstanding that I at least theoretically support the listing.

We've heard that it takes days and sometimes weeks for a court to determine the existence of a criminal organization. As I look at the definition of a criminal organization in the code, when you break it apart, it's very simple: three or more individuals acting in concert and one of their objectives is the commission of criminal offence. I'm going to ask the prosecutor from western Canada: what part of that is so troublesome that it takes courts days and sometimes weeks to establish that proof?

12:30 p.m.

Senior Counsel, Public Prosecution Service of Canada

Christopher Mainella

Criminal organizations don't have written constitutions that say “this criminal organization is a money-laundering shop”, so we tend to have to rely on hundreds of hours of wiretaps. Members of organized crime groups know they're being wiretapped, so you have to play a lot of them. You often have to rely on insider witnesses--agents or turncoats. Their testimony often will take days and weeks. They'll be cross-examined at length because they tend to have unsavoury backgrounds.

Just to meet the definition requires a lot of evidence. That's the difficulty. We have to prove it beyond a reasonable doubt. As well, a lot of these groups will also have facades. They will try to do legitimate activities, such as toy runs and that sort of thing. They'll say that they're just a bunch of guys who hang out in a house, drink beer, and play cards.

You have to go beyond that. That's the difficulty. It's the covert evidence that takes a long time to get out.

12:30 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

For some of the real famous gangs, such as the Hells Angels and the Bandidos, why.... I haven't read the Queen and Kirton in the Manitoba Court of Appeal, but why can't a trial court take judicial notice of a criminal organization that operates in rem? I mean, the Hells Angels operate in more than one jurisdiction and more than one country. You've obviously read the Manitoba Court of Appeal decision. Why did the court hold that you cannot take judicial notice of the existence of those organizations?

12:30 p.m.

Senior Counsel, Public Prosecution Service of Canada

Christopher Mainella

Whether a group is a criminal organization is an element of the offence. It has to be proven by the crown beyond a reasonable doubt each and every time. Because it's an element of the offence, the way the charter works you can't simply apply one decision into another fact pattern currently. It's just the nature of our criminal process.

If there were reform in that area, for example, where a decision could be put before a court and then defence counsel could make submissions on it, that might be a way to assist in the process, but this happens because it's an element of the offence. It would be no different from being charged with a criminal offence: the crown couldn't rely on a conviction of another person to prove my guilt.

12:30 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Just so I'm clear on this, the fact that it's a crime to be a member of a criminal organization precludes the court from taking judicial notice of that membership when that individual is charged for a specific Criminal Code infraction as a member of that organization.

12:30 p.m.

Senior Counsel, Public Prosecution Service of Canada

Christopher Mainella

It's not a crime in Canada to be a member of a criminal organization; it's an element the crown has to prove.

The crown has to prove that I'm a member of the particular group. For example, if it's a section 467.12 offence, the crown has to prove that, let's say, an extortion occurred. Then the crown has to prove the nexus between the gang and my extortion--that I did an extortion to recover, let's say, a drug debt of another member. So the crown has to prove those three things that were talked about earlier.

12:30 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

Okay.

You've indicated that rarely in these complicated organized crime trials will the defence concede or admit anything; they put the crown to strict proof on every element. Did I understand that correctly?

12:30 p.m.

Senior Counsel, Public Prosecution Service of Canada

Christopher Mainella

No, not on every element, but there is this gang dynamic where accused persons, because they are still a member of the gang and they fear retribution, don't want to do any particular act that may look bad on the group, so they won't make an admission about the group itself.

12:35 p.m.

Conservative

Brent Rathgeber Edmonton—St. Albert, AB

I understand that. I know very little about gang culture, and I say that with pride, but don't some of these organizations wear their colours with pride? They wear jackets. They have uniforms. Aren't some of these members proud to be part of these organizations, and wouldn't they admit it under certain circumstances?