Justice Committee on May 3rd, 2007

[The Chair, Conservative, Art Hanger]

You have.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I'm just curious what officials are expected to do in relation to a motion that's been put forward by a member.

[The Chair, Conservative, Art Hanger]

They're going to comment on the feasibility of proceeding with something like this. There are some sections in it that already pose a bit of a problem, but Mr. Ménard has already introduced it. He has given some description of what he wants.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

What would the officials possibly be expected to say about what is proposed?

[The Chair, Conservative, Art Hanger]

Maybe we can hear from them and they'll tell you.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

All right. I suppose they won't be making any value judgments. It is legislators who will make the decision.

[The Chair, Conservative, Art Hanger]

We understand that, and that will still be the case if anything is going to proceed in that fashion.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

All right.

[The Chair, Conservative, Art Hanger]

There are some issues with the motion, and the members from the Department of Justice are going to put their position forward.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

That's my point. The Department of Justice hasn't had an opportunity to have a position. This is a justice committee issue. The Department of Justice is an observer. It may have some very expert views that can be brought to the table, but it would have to be asked first.

[The Chair, Conservative, Art Hanger]

It has been asked.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I'm unaware of those questions, but that's fine.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

[Réal Ménard, Bloc, Hochelaga, QC]

I'll come back to it at the end.

I'm going to give a speech at the end.

[The Chair, Conservative, Art Hanger]

That's fine, Mr. Ménard.

Mr. Bartlett.

[William Bartlett]

I hope we can be helpful to the committee in dealing with Monsieur Ménard's motion. I appreciate the opportunity to provide the committee with some background on the issues raised by the motion that is before you.

I'll focus my remarks primarily on the first two issues raised in Mr. Ménard's motion.

As you know, Bill C-24 came into force in 2002, and I believe Monsieur Ménard was a member of the committee at that time. In so doing, it modified the definition of criminal organization. Subsection 467.1(1) defines a criminal organization as:

a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has 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 amendment was made because the previous definition of criminal organization was a more complex and demanding definition. It required, for example, showing a pattern of criminality, which was found to be a difficult issue for crowns to deal with. There had been some development on the international level that I'll refer to a little later, and the new definition was largely based on that international development that led to a definition of criminalization in the transnational organized crime convention.

The concept of material benefit, as it has been interpreted, is quite broad, and sufficiently broad so as to address instances of gratuitous violence, such as drive-by shootings, the issue raised in Monsieur Ménard's motion. This view is confirmed by international legal norms as well as our own jurisprudence. From a criminal policy perspective, it's the inclusion of the requirement that there be a receipt of a material benefit for the offences that the criminal organization is focused on facilitating or committing that is important.

Mr. Chairman, as this committee is no doubt aware, the passage of Bill C-24 was aimed in part with the view to enable Canada to ratify this big international convention, the UN Convention Against Transnational Organized Crime. That convention's definition of an organized criminal group also contains a requirement that the commission of serious crimes be done in order to obtain a financial or other material benefit. We have the definition available if the members of the committee would like to see it.

Similar to the issue before you today, the drafters of the convention struggled with those instances where organized criminals might commit crimes such as murders, which allegedly yield no direct material benefit to the organization. Proposals to broaden the definition to include other illegitimate purposes were suggested as a way to ensure that such acts were captured. However, in the end, the drafters concluded that the concept of material benefit must be construed broadly, and our own courts have confirmed this, and that the motivation for such criminal acts could nonetheless be seen as indirectly linked to the obtaining of a material benefit. The domestic interpretation has solidly confirmed this view.

It should also be noted that the concept of material benefit from a legal policy perspective serves to limit the range of groups that could be seen as criminal organizations but not be within the target of what the criminal organization legislation is designed to capture. For example, the concept of material benefit assists in differentiating organized crime groups from groups who commit crimes for reasons other than a material benefit, such as political reasons.

Mr. Chairman, domestic jurisprudence confirms that the concept of material benefit is broad and that the breadth of this section was deliberate so as to provide law enforcement with the necessary flexibility so as to capture the full range of behaviour engaged in by criminal organizations.

In decisions before the Ontario Superior Court of Justice as well as the Quebec Superior Court, the courts have noted that the term “material benefit” is broad, and that what constitutes a material benefit will depend on the facts of the case.

For example, in Regina v. Leclerc, Quebec Superior Court noted that activity that is intended to provide a gang with an increased presence in a particular territory in order to deal in narcotics would be for the benefit of a criminal organization. This indeed is what lies behind the drive-by shootings and other apparently random acts of apparently gratuitous violence, including those engaged in by street gangs. It creates a climate of intimidation that contributes indirectly to the drug trafficking or other forms of crime that result in the direct material benefit.

In addition, it should be noted that nothing flows directly from the definition of a criminal organization. It is not essential that the crime in issue before the courts be one that is included within the definition of a criminal organization. What is involved in using the definition of criminal organization is that there is an offence before the court....

For example, in section 467.12, there is an additional offence that is applicable if the offence in issue is one committed for the benefit of, in association with, or at the direction of a criminal organization. So you must have the offence and the existence of a criminal organization. The criminal organization exists if it commits or facilitates crime that brings material benefit--this broad concept of material benefit--whether or not it may also sometimes engage in purely random, or apparently purely random, acts of violence.

Having said all this, the issue that Mr. Ménard is raising in this element of the motion, the issue of drive-by shootings, is certainly a serious one. We have been reviewing our criminal laws with a view to ensuring that there are adequate tools within it to address in particular that kind of reckless criminal behaviour.

In regard to warrants for tracking devices such as GPS systems, that is something that we indeed have been looking at. We thank Mr. Ménard for raising that issue in the motion. We are looking for a variety of ways to strengthen our criminal law responses to organized crime. Certainly we are examining the exact issue he has raised in the second part of his motion.

The remaining issues involve primarily funding matters. We really can't comment on those except to note that indeed there is no funding presently available for the activities that the motion raises.

I'll make one comment, perhaps. The idea of a secure website, while certainly a resource-intensive issue, would certainly be feasible in regard to case law, but there are a variety of reasons why it would probably not be possible to put on a website evidence used by the defence and the Crown. That simply wouldn't be available to put on a website, but certainly case law would be available, although making it a secure website would be a fairly resource-intensive exercise.

Those are my comments, Mr. Chairman. I hope they will provide some assistance to the committee in reviewing Mr. Ménard's motion.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bartlett.

Just to go back to your initial intervention, Mr. Lee, I know that some of these proceedings maybe aren't quite in line with what we would be calling the justice department in to provide information on. But we had this discussion quite thoroughly on this particular motion. You contributed to it.

The issue that you brought forward--and I think it's an important part of it--was to consider the “advisability of”; those were your terms back then. I think this is what we're trying to do in determining just where we're going to go with this motion.

Now I'll turn it over to Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

The officials are always welcomed here if they can shed some light on the committee's work. I have no problem with that. I don't know if I can go along with their argument, however, but I do want to be certain that I understand.

I've done my homework as a member of Parliament. I represent a Montreal riding, and the people who work for my police department are worried about fights between street gangs. This is not only happening in Montreal. It is also happening in Toronto, Vancouver and elsewhere.

If you maintain— and I want to see the jurisprudence— that under current legislation, the police...

The Montreal police have told me that they cannot lay charges under section 467.11 against known gang members when they engage in a drive-by shooting. They can lay charges of homicide, possession of illegal weapons, disturbing the peace, but they cannot lay charges if these people are in a car and shoot at someone, not necessarily with the intent to kill, but simply to increase their influence on their territory. The police told me that this type of activity did not meet the definition of "criminal organization".

I also read the Leclerc and Carrier rulings and I don't remember having read that. If you tell me that it is already covered under current legislation, so much the better. Laws are not passed without a purpose. If the problem is solved, I will withdraw that part of my motion and move the adoption of the three other parts. However, the police have told me differently.

I would like you to be very clear with us. Can you confirm that the courts have interpreted the definition of "criminal organization" in a way which would allow the police, be it in Quebec or elsewhere in Canada, to lay charges in a drive-by shooting under the definition of criminal organization? That's what you're telling us this morning. You're saying said that financial and material benefit include an increase in influence over a particular territory. You're saying that you will present to us related jurisprudence.

Moreover, you have the bad habit of never distributing your texts. I would be nice to see them. You have been before the committee two or three times already, and yet you have never distributed your texts. It would be nice to see them.

As the law now stands, can the police lay charges under sections 467.11, 467.12 and 467.13 for drive-by shootings? Yes or no?

[William Bartlett]

Yes, indeed, Monsieur Ménard. The applicable offence would vary when a drive-by shooting is involved, depending upon the particular facts of the case. As I've noted, we are reviewing the range of offences that could apply to see if the offences that are applicable are the best ones. We might be looking at a new offence to more adequately address the actual act of a drive-by shooting. But certainly there would be a number of offences that apply.

What would be required is that they charge someone with an attempted murder, various firearms offences, whatever the facts of the case would support. Then, if they want to use the criminal organization provisions, they would add the additional charge of committing that offence in connection with, for the benefit of, at the direction of, in association with, the criminal offence. That's how the charge would have to be mounted. They would have to show that a criminal organization exists, and certainly that's a very difficult thing to do. The jurisprudence would allow them to include acts like this, where they were clearly carried out--as they are most of the time--for the purpose of--

[Réal Ménard, Bloc, Hochelaga, QC]

Wait a moment. I want to make sure I understand because this is what worries the police.

My question is quite clear. Of course, the Criminal Code says that it is a major offence for a person to attempt to kill someone in the community with a firearm. However, the police have told us that they would like to be able to lay charges under section 467.11 because that would result in lengthier sentences and delayed parole. I realize full well that the police can lay other types of charges.

Supposing that in Montreal, Toronto or Vancouver, a gang member takes part in a drive-by shooting and the police can link the culprits to a criminal organization by applying the three criteria. In this instance, three persons got together and committed an offence that resulted in the receipt of a material and financial benefit by the group. Will the fact that they committed an offence, in this instance a drive-by shooting, allow the police to lay charges under sections 467.11, 467.12 and 467.13?

I don't want to hear about any other offence, because I know that charges can be laid. I want to know whether, yes or no, it is possible to establish a link between drive-by shootings and criminal organizations? If so, I would like to see you provide us with the appropriate jurisprudence. If it already exists, I am willing to withdraw part (a) of my motion. It is possible that the police were misinformed. If that turns out to be the case, they will be told and they will receive a written response, but I would ask you to be specific and clear.

[William Bartlett]

Yes, indeed, Monsieur Ménard, they can lay charges and link those charges to the existence of a criminal organization. The charge is not laid under section 467.1. That's simply a definitions section. The charge will be laid under section 467.11, participating in an activity; section 467.12, committing an offence for the benefit of; or section 467.13, instructing somebody to commit an offence.

In the circumstance you're describing, the applicable offence would presumably be section 467.12, committing an offence in association with, for the benefit of, or at the direction of a criminal organization. They could certainly lay that charge in addition to the drive-by shooting if they could show that the drive-by shooting was linked to a criminal organization.

[The Chair, Conservative, Art Hanger]

I understand Monsieur Ménard's point--if you don't mind, Monsieur Ménard.

To gather evidence that a carload of individuals popped off somebody who may have been unrelated and drove on, even though they may have been targeting someone they wanted to drop or shoot or kill, in order to prove that the group was attempting to shoot someone else because it would have been of benefit to them--maybe it was somebody in the same business, pushing drugs, and they want to knock him off--but they didn't kill him, they killed someone else, the police have to gather evidence to bring it all the way back and prove that this was the reason they did what they did.

Since it's a criminal organization that's dealing in drugs, the evidence would have to show clearly that the link is there. If they cannot show that, they can't charge that.

[William Bartlett]

Not quite. They have to show that the crime was committed for the benefit of a criminal organization. They don't have to show that there was a link in that particular case as long as they can show that the group constitutes a criminal organization and that the crime was committed for the benefit of that criminal organization.

The link is not necessarily through the particular offence in front of the court. It could be shown, through other evidence, that the group engages in drug trafficking, for example. If it can be shown that they engage in drug trafficking, extortion, prostitution, or whatever offences they may specialize in, or the range of offences they may be involved in, you would be able to prove that the criminal organization exists. And if you can show that the offence was committed for the benefit of the criminal organization...and that does have to be shown. You don't necessarily have to trace that particular offence back to show what benefit that offence may have garnered for that criminal organization; you simply have to show that it was done at the instance of the criminal organization or in association with them.

So once the issue of the existence of the criminal organization is shown, and you can then show that the people committing the drive-by shooting were doing so in association with them, that would be sufficient for the charge.

[The Chair, Conservative, Art Hanger]

Thank you.

We'll have Mr. Dykstra.

[Rick Dykstra, Conservative, St. Catharines, ON]

I guess I'm trying to get a fairly clear understanding.

Also, Mr. Ménard, if I understand, have you or have you not withdrawn the first part of your motion? It's in four parts. You suggest that--