Justice Committee on April 1st, 2009

[S/Sgt Christopher Renwick]

The first criterion is that a reliable source of information says that a person is a gang member. Second, a police officer observes a person associating with a known gang member or members. Third, a person acknowledges gang membership. Fourth, a person is involved directly or indirectly in gang-motivated crime. Fifth, the court finds the person to be a gang member. And sixth is whether the person is found displaying common or symbolic gang identification paraphernalia: colours, tattoos, and that type of thing.

To designate a person a gang member, the person must meet three of those six criteria, one of which must be number four, which is that the person is involved directly or indirectly with gang-motivated crime.

That's the criteria we apply, and that, with the definition of a gang member, is a basis for the court designating the person a gang member. I know the Criminal Code has a definition of organized crime that is different, but one of the reasons Criminal Intelligence Service Canada brought in this criteria in 1991 was to try to have some standardization across Canada.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

So can it be part of the legislation across the country?

[S/Sgt Christopher Renwick]

I had that discussion with some of the criminal investigators in our guns and gang section this morning, and I know the Criminal Code does have a definition of “organized crime”, because I looked it up this morning as well. The discussion was around whether or not that would be included in the Criminal Code to make it easier. We're talking about street gangs here; organized crime is a whole different kettle of fish. But yes, it would give some standardization and some common application across Canada.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you.

We met B.C. Attorney General Oppal last month when he was out here, and he provided us with some statistics. Roughly 10% of all criminal offences actually go to trial, and the truth is when there is a case of gang violence or when a suspected gang member is arrested, the cases take their place at the back of the line, so the gang member can get back on the streets.

From your perspective, do you see this as a crucial issue when suspected gang members are arrested?

[S/Sgt Christopher Renwick]

Sir, I missed that part after “10%” . The gang members do what?

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

They say that only 10% of cases go to trial, and even when they go to trial, they are put on the back burner because they do not have the expertise when it comes to the crown and judges. Do you feel the same way?

[S/Sgt Christopher Renwick]

We do have a dedicated crown attorney here in Ottawa to prosecute our gang cases. I was recently in Toronto, where they have an office of in excess of 50 dedicated crown attorneys. So that's a direction we're going in.

My own opinion for why they may not go to trial is that it's not a reluctance to prosecute them. A lot of them end up in a plea or some other resolution before trial. I don't see, here in Ottawa, a reluctance to prosecute gang members. It's actually the opposite. There is a real appetite to move forward with those, because of the problems we're having. One gang member, quite active, is causing a lot of grief in our community, and we are the enforcement side of it. We are not experiencing crowns backing away. Sometimes they will take plea bargains to other related offences, which is a little disappointing for us, but certainly there's not a hesitation to prosecute.

[Sukh Dhaliwal, Liberal, Newton—North Delta, BC]

Thank you.

[S/Sgt Christopher Renwick]

If I may add, sir, my experience with it--

[The Chair, Conservative, Ed Fast]

We're going to pass to our next questioner. We're already a minute over for Mr. Dhaliwal.

Monsieur Ménard, you can continue for five minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

Earlier I asked a question about reversal of the burden of proof for property obtained by crime by criminal organizations. The Bloc passed that bill with the assistance of the entire House. My former colleague, a very honourable man, Mr. Richard Marceau, former member for Charlesbourg, left the House a lasting souvenir.

Why wasn't that bill passed? Mr. Trudell seemed to have an answer. I propose that we listen to him, since he has come from Toronto and almost didn't get here. In view of his courage, we're going to listen to him.

[William Trudell]

I think when you get a serious offence where there is a reverse onus provision, the reverse onus provision isn't necessary. There are still the three standard grounds: primary, secondary, and then the third ground, which is the protection of the public interest. Quite frankly, the reverse onus provision in most cases is not necessary to implement, in my respectful opinion, in terms of the experience. If the offence is so serious, if there are guns involved, it is very unlikely that someone is going to be released on bail. It's early, really, in the history of the types of offences where the reverse onus would be used. So the tool is there, but it may not be necessary.

That's the experience that I would suggest.

[Réal Ménard, Bloc, Hochelaga, QC]

I see you used a little gimmick to reconcile yourself with the law by not responding to the bill directly, but by making an editorial statement on a principle. I understand that.

There is something else I would like to understand, and your viewpoint may be interesting. You don't appear convinced that the bill on homicides and first degree murders is a new tool for police officers. What makes you doubt that this tool will make it possible to lay charges?

Does culpable manslaughter or when it's alleged that there was no premeditation... In all cases where criminal organizations face charges, they won't be able to say that it was negligence and that it was not premeditated. You seem to think that this actually isn't new law. I would like to understand why.

[William Trudell]

I think you've heard from my colleagues testifying today that there's no reluctance throughout the country to prosecute. I think there are major prosecutions involving organized crime and guns and gangs throughout the country.

Where the investigative tools and the infrastructure are there in terms of crown attorneys working with the police, crown attorneys from the provincial organizations working together with federal prosecutors to prosecute drugs too, the prosecutions are happening. There is no gap, if I could respectfully submit.

We're talking about Bill C-14. We're talking about first-degree murder deemed. I would respectfully submit that there's going to be no plethora of new charges laid because of this tool.

Quite frankly, the police want to get the matter into the courts expeditiously and efficiently. The added layer is not going to assist them. I think that's the point I'm trying to make here. There's no reluctance in this country to prosecute.

[Réal Ménard, Bloc, Hochelaga, QC]

You suggested that we read a Supreme Court judgment. What judgment was it? Can you forward it to the clerk so that we can read it?

[William Trudell]

It's a case called Bonner and Lindsay.

[Réal Ménard, Bloc, Hochelaga, QC]

All right. We know the Lindsay decision. It was in British Columbia.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Ménard.

Mr. Trudell.

[William Trudell]

The one I'm referring to is Bonner and Lindsay. It's an organized crime prosecution. The decision of Madam Justice Fuerst is a thorough decision on organized crime and the definition in the Criminal Code. It's under appeal, but it's helpful reading.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Petit, are you ready to ask a question? You have five minutes.

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

Thank you very much. I have five minutes? This will be very brief. Perhaps I'll share the time allotted to me with one of my colleagues, if I don't need five minutes.

The question will be for Mr. Todd or perhaps Mr. Michel Aubin. I'm going to repeat roughly the same terms as Mr. Ménard used earlier in citing an example. Recently, there has been talk about the construction industry, which appears to be infiltrated by organized crime. If members of organized crime infiltrate the construction industry, it's because they want to launder money that comes from prostitution, theft, drugs, cigarettes and so on. So they need a vehicle in order to enter a group and launder their money.

We've also learned that they are infiltrating not only large groups, but also groups that in some cases consist of employers, union officers, sometimes people who contribute to democracy in Canada in various forms. We see organized crime entering very quietly by the back door and moving up. In some cases, that can even cause much more serious problems. As someone said earlier—I don't know if it was the representative of the Ottawa police—there are intimidation problems. Someone may be afraid; even a politician may be afraid. We saw what happened in Italy. Everything started in the construction industry and, following Operation Clean Hands, the affair went as far as a judge of the Italian Supreme Court, who was involved in all kinds of events. He was not the only one; a number of judges were involved.

Bill C-14 provides protection for politicians, police officers and people who will have to take action to combat organized crime, and so on. Do you think this protection is enough today? I have some doubts, even though we are proposing the legislation. In 1975, an investigation was conducted into construction. It was said that would never occur again. Now this is 2009, 33 years later, a generation later, and organized crime is still involved in construction. That's why I'm asking you whether you find the bill we are trying to present to you satisfactory or whether it's just a little part of what can be done.

[C/Supt Todd G. Shean]

I'll answer first and Mr. Aubin can continue. You emphasized an interesting point. Organized crime enters an industry and tries to legitimize itself. So it infiltrates the construction and other industries. Once that's done, it often tries to take control of the industry. It may perhaps be able to get contracts at lower prices than a legitimate business because the organization is trying to launder money, so it can afford to lose a little money to get a contract. Every bill, every effort we make is just an effort. Will the bill help us? Yes, absolutely. It will help us, but it's just one factor.

As I explained earlier, you also have to talk about awareness. We also have to know that organized crime tries to infiltrate. You have to be aware of that.

Perhaps Mr. Aubin has something to add?

[Supt Michel Aubin]

No, Mr. Shean is entirely right. I don't believe it's just the construction industry. It is a well-known organized crime technique to slip into, to enter an industry by the front door, then to expand its field of action using its own techniques. This method is known around the world with regard to organized crime.

In my opinion. and as Mr. Shean said, this bill should be linked to other aspects that Mr. Cabana mentioned last week before this committee. When you talk about lawful access, disclosure, information sharing, these are all aspects that are necessary to the law enforcement system, to the judicial system, so that we have the necessary tools to attack organized crime, while respecting human rights, the Charter of Rights and Freedoms. However, it has to be acknowledged that organized crime, particularly in the case of well organized groups, has this ability to intimidate, to corrupt. If we don't have the tools, we won't be equipped to attack it comprehensively.

With respect to disclosure—that was mentioned earlier—it has to be acknowledged today that what the court requires in terms of disclosure, the necessary evidence against a criminal organization, is so voluminous that it is very difficult for police departments and prosecutors to manage that evidence so as to lead tos a complete prosecution and, ultimately, to a charge against a criminal organization. What is unfortunate is that, when a criminal organization is recognized as such at a particular location, in a certain province—as was the case of Lindsay and Bonner in Ontario, where the Hell's Angels were recognized as a criminal organization—it is all the more necessary since that organization is recognized in the same way elsewhere in Canada, without us having to prove it again.

[The Chair, Conservative, Ed Fast]

Merci.

We'll move on to Mr. Murphy for five minutes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

I don't have all that much time to debate, Mr. Trudell, but we had some statistics the other day about murders: 104 in 2006, 74 of which were first-degree. I guess your argument is that it's going to take a lot of extra resources to go for first-degree when on the basis of the facts the result may be a second-degree conviction. But it is my experience--and the police will probably back this up--that prosecutors and police forces will make that decision based on the difficulty of the case, and it is an extra prize, if you will, that prosecutors and police will I think make the decision on a case-by-case basis.

I want to let the fellow maritimer sitting down there have some time. He's absolutely correct that Halifax has changed in character. I was a university student there, and some of my classmates--not me, of course--would roam the streets late at night without any worry whatsoever, but it's changed. Its complexity has changed. Gang members from North Preston roam the Maritimes.

I guess what I'm asking you from a law enforcement point of view, Chief, is whether you think there are enough tools in your satchel. I'll be specific. Right now you can get permission to have wiretaps for a period of one year at a time. My information is that it doesn't seem to be being used all that often. Prosecutors are reluctant to go for the full year to wiretap and intercept.

The second question I have is along the lines of the evidence given by Staff Sergeant Renwick with respect to the expert witness designation. They've had some success here in various courts, I suppose, in getting the designation. Have members of your force--a member of the RCMP, JFO, or whatever--been designated as experts on a criminal organization, in the courts in Nova Scotia? Is it easy to get? Are those some of your difficulties?