Justice Committee on May 26th, 2009

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Thank you, witnesses, for being here.

Mr. Mainella, I'm going to start with you. I would like to follow up on this point, which I was going to raise before Professor Roach did, but he beat me to it. What about the practical problem? If we went ahead with this concept we would list the groups. We don't list individuals. So how practical is it going to be for shortening the trials? Because we're still going to have to prove in each case that those individuals who are charged as being members of the organization are in fact members of the organization. That's question number one.

On the comment on the Lesage and Code report, do you see that as going reasonably successfully, if those changes were implemented, to resolving the difficulty with the lengthy trials?

Finally, Professor Roach, if I understand Mr. Ménard's approach, he is looking not at duplicating the ATA listing approach but in fact using a judicial model. I don't know if you've conceived of that kind of an approach. So you wouldn't have this blurring of responsibility and separation of powers. Also, it seems to me that it would do away with any of the charter arguments if it was in fact, say, a panel of three Superior Court judges gathered from around the country on a periodic basis to have a trial as to whether this group being charged as a criminal organization would in fact meet that test.

[Christopher Mainella]

I'll deal with the practicality question first. In terms of practicality, there are two responses. The first thing is you need to understand that when people think about criminal organizations they tend to use an analogy to corporations. They think they operate that way.

The better way to think of them, particularly outlaw motorcycle gangs, is as a medieval guild. They tend to be a band of brothers of like-minded individuals, but they commit their own crimes in their own way. Oftentimes they're in rivalry with each other. So when you think of a criminal organization you have to understand that once you get past the label of it, they don't operate the way corporations tend to operate. There's no one bank account in Switzerland where all the money goes and then there's a payout of shareholders at the end of the year.

The other part of practicality is that juries and judges need to understand context. If an outlaw motorcycle gang tells a person they are going to take them on a ride out of town, that has a particular context, a meaning in the outlaw motorcycle world. A jury doesn't understand that unless you call expert evidence and some background to put that in. So the crown is still going to have to call evidence about the organization and how it works in the trial to understand certain facts. A fact may be innocuous to you watching, like hearing on a wiretap that they're going to take you out of town. But it could mean the end of that person's life in the biker context.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Excuse me, Mr. Mainella. It's just that we don't have much time. I think we generally do understand that. What we're really asking, given what you've just said, is this: is it in fact going to shorten the trial?

[Christopher Mainella]

You're still going to have to call evidence about how the group operates. It will depend on the specific case.

In terms of your second question on the pretrial powers, more powers to the judiciary to manage trials is a good thing. Right now, we still operate on a bit of an Edwardian criminal procedure. There aren't those very firm deadlines and there are a lot of judges who want that. It would assist in the structuring of trials.

[Prof. Kent Roach]

Just quickly, the judicial model would deal with the separation of powers, but I would worry that it would have a lot of resources. So why do we need to have these trials at periodical intervals, when the definition of criminal organization itself is so wide that I think it's open for prosecutors to say they don't have to prove that the Hells Angels is a criminal organization, that all they have to prove is that these five guys who hang out at this clubhouse are a criminal organization?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Do I still have time?

[The Chair, Conservative, Ed Fast]

Mr. Comartin, you have about 40 seconds.

[Joe Comartin, NDP, 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?

[Christopher Mainella]

I'm not aware of that.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thanks, Mr. Chair.

[The Chair, Conservative, Ed Fast]

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

[Brent Rathgeber, Conservative, 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?

[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.

[Brent Rathgeber, Conservative, 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?

[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.

[Brent Rathgeber, Conservative, 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.

[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.

[Brent Rathgeber, Conservative, 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?

[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.

[Brent Rathgeber, Conservative, 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?

[Christopher Mainella]

Again, it's their choice. Section 655 of the code makes it their choice. They have an absolute veto. So, yes, they are proud to be members, but they still make the crown prove it.

[The Chair, Conservative, Ed Fast]

We'll move on to Monsieur Lemay, for five minutes.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I will let Mr. Petit have a turn and come back later on.

[The Chair, Conservative, Ed Fast]

Sure. That's fine.

Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good morning, and thank you for being with us today.

The questions raised by the motion before us today arose many years ago in Quebec. I am a defence lawyer. I am just about the same age as Mr. Lemay, and we were both there for the infamous megatrial in Montreal, the aftershocks of which are still being felt and where the defence lawyers were better paid than the Crown prosecutors. You are certainly aware of that; there was talk of that in the newspapers. We have already heard from your colleagues, but I would be interested in your own comment in that regard.

Mr. Serge Ménard, who was the Minister of Public Safety in Quebec at the time of the gang wars, recently expressed his opinion on this motion. He said that this is not something that will enable us to successfully combat organized crime, because they will just have to change their name and start all over again. That is a valid argument, even though I do not necessarily agree. That is why I would like your opinion.

We cannot list the Hells Angels Inc. or Bandidos Inc. in the Quebec or Ontario Corporations Act or in federal legislation. Those groups would simply take different names. As long as we are unaware of those names, their activities cannot be prohibited. That is another problem.

How did you hear about the Mongols? Well, it happened one day when you arrested an individual wearing a coat that said “Mongols” on it. Without that inscription, you would not have known they existed. And yet, this is an organized crime group. Members of the mafia do no wear a name emblazoned on their chest, but they wear a tie, a nice hat, a double-breasted suit, and that sort of thing. Should we be thinking about including the “mafia” or “Cosa Nostra”, “Hells Angels” and “Bandidos” on the list?

We need to know whether the instrument that would be created by Parliament would help a Crown prosecutor talk about certain things. Let us not forget that the defence lawyer or, at least, others representing one part of the House of Commons, said something different. Why do they want this to be included in the anti-terrorist legislation? We believe it should be part of the Criminal Code.

Mr. Aubin, could you take that question?