First of all, the only prosecutors I saw testify before you were Christopher Mainella, the senior crown counsel from the Public Prosecution Service of Canada, PPSC—I thought his bailiwick was in Alberta, but I might be wrong—and Mr. Bartlett and his colleague, whose name escapes me right now. You're quite right, Mr. Mainella testified that in some cases, as I think he described it, he'd say to the police, “If you don't have an expert on gangs, then forget it, I'm not going to bother prosecuting.” Both of them were quite clear that it's not the main hurdle.
The big hurdle is still proving knowledge of each particular individual that the criminal organization exists, which listing has nothing to assist with, but an expert still does, and then proving actual membership in the organization. Again, you can't list individuals. You can create a list of organizations. It's not going to get over the main hurdle. Both of those prosecutors agreed that the evidence they call to support the experts' testimony isn't going to disappear by listing. They still have to call all the evidence of symbols, what the significance is, and the structure of the organization in order to prove knowledge and association of each individual.
Listing isn't going to accomplish much of anything. Even if you establish that, and you list the Crips, well, great, how does that help the crown in my case, where they're alleging that these five urban youth who are calling themselves the Crips are actually part of the Crips that are listed in the Criminal Code? Just because I put the word Crips on my back doesn't mean.... Judges will not simply accept that just because you have a shirt with a name on it and that name is found on the back of the Criminal Code, it means you're part of that criminal organization. They're still going to have to call an expert. That's my point. In other words, there's not going to be a lot of saving.
There's one last thing. Even if you don't think the affidavit method is perfect, approach it in the same way as the many mechanisms in the code, where proof of that kind of expert fact is done by way of certificate or affidavit--for instance, breathalyzers and drug analysis. Whether you use the provisions that are already there is irrelevant. You can create a new process designed specifically for criminal organizations that allows for certification by an expert, who can still be subject to cross-examination in the individual case. That's another way to approach it.