Justice committee  There are examples of particular countries that have used an approach like that, as I say. They are primarily the civil countries. The burden of proof issues are different and the whole structure of a criminal charge and prosecution in the civil countries is significantly different.

Justice committee  I would suggest that the committee might benefit from hearing from a cross-section of prosecutors across Canada who have been involved in these organized crime cases. There are some academic commentators who have looked at the terrorism-listing provision, but I don't know of any who have looked at it as a concept that could be applied to a criminal organization, because it hasn't been something that's been put forward as a proposed initiative.

Justice committee  The elements of the definition, I think, are relatively simple and relatively clear, but the practice in the courts, as these cases have been presented, has been to require a fairly large mass of evidence that an organization that fits this definition exists and is ongoing, that the criminal activity that is the subject of the charge before the court has been committed in connection with that criminal organization.

Justice committee  That's relevant to determining whether or not somebody has participated in an activity of the criminal organization. You're still going to have to show that the criminal organization exists. These were evidentiary provisions that we hoped would relieve the burden somewhat in showing that the person before the court had participated in activities of that organization that were designed to enhance the organization's capacity.

Justice committee  We're rather appropriating the term “judicial notice” for the kind of concept we're suggesting, because what we're suggesting would not fit what the courts now understand to be the scope of judicial notice, those things that a court can simply take notice of without evidence being presented before the court.

Justice committee  The two other options that we've discussed at the CCSO organized crime working group would be, first, some sort of statutory provision dealing with judicial notice. The prosecutors on the working group weren't satisfied, the last time we discussed it, that this would necessarily help them, but it's something we're giving some further consideration to.

Justice committee  First of all, we don't have an offence for simply being a member of a criminal organization even where that issue is not in doubt. Rather, the offences are for participating in the activities of a criminal organization with a view to enhancing their capacity to facilitate or commit crime, for committing an offence for the benefit of, the direction of, or in association with a criminal organization, or for instructing somebody to commit an offence for a criminal organization.

Justice committee  I hope I didn't suggest that the civil law countries don't have constitutional frameworks that include guarantees of rights. They're all parties, I think, to the European Convention on Human Rights, but the manner in which the rights are guaranteed is somewhat different from one set of constitutional guarantees to another, and our charter is somewhat different in that regard.

Justice committee  Certainly, as Commander Mainville and Chief Inspector Latulippe have noted, street gangs are very fluid. They change naturally, quite aside from any efforts they might make to avoid the consequences of being on a list. Assuming you could feasibly put them on a list to start with, they would be constantly changing.

Justice committee  In civil law countries—France, Italy—there has been some use of that kind of approach, although their systems are quite different. I don't know of any common law jurisdiction that has done a listing process. Australia has used a crime commission approach. The crime commission can make certain findings, and there are some consequences that flow from the crime commission's making a finding, although they're not direct criminal matters; they're more things such as control orders and so on that can flow, similar to our section 810.01 process.

Justice committee  There is none that I'm aware of, other than what Australia is working on, although Australia doesn't have the kind of charter of rights we have. And they're not using it for quite the sort of purpose it would serve here, which is to prove an element of a criminal offence.

Justice committee  Judicial notice, as the principle presently stands, involves courts taking notice only of those things that are considered to be so evident in the public domain that they don't have to hear evidence about it.

Justice committee  Yes. The idea is that you would craft some sort of statutory provision that would be a rebuttable presumption, but it would allow a judge to take notice of a finding made by another court. It would be a rebuttable presumption that if the same set of facts appeared to be alleged in the case before that judge, they could take notice, subject to the defence having a right to challenge.

Justice committee  It's not a simple concept, but it would be a question of one court taking notice of another judicial process, and might address some of the problems that the courts will certainly have with any process where you're seeking to prove an element of the offence by a process that takes place outside any courtroom at all.

Justice committee  Thank you, Mr. Chairman, and thank you, members of the committee. It's a pleasure to be with you again. I'm the team leader for the organized crime team in the criminal law policy section in the Department of Justice, which is, as you know, responsible for amendments to the Criminal Code.