Justice Committee on May 12th, 2009

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Petit, for five minutes.

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

Thank you.

Thank you, gentlemen, for coming here today.

I think the subject is a very important one. I also think that in Quebec, in fact, and I am from the province of Quebec, this is also a very important and very current subject, these days.

First, I would like to congratulate you. It is very much to your credit that you have recently carried out a huge police operation in the Montreal region, and I think we are starting to score points. But the question we have to ask is: how can we facilitate your work to be sure that we, the public, feel safe in terms of your method of working?

I would like to ask Mr. Bartlett a first question, since he might be able to answer it a little more easily. The question was asked directly by Mr. Lemay, about membership. Membership has to be proved. If a criminal organization is put on a list, membership has to be established, and you in the police have seen, there are a lot of criteria.

Would it be possible to do something in terms of evidence to facilitate the work of Crown prosecutors, for example, by having what is called a "reverse onus"? An indictment could say that a particular person is a member of a particular organization, and the accused would have to prove otherwise. That doesn't mean the problem would be solved. I know you have already thought of this, I know there have already been reverse onus provisions, and I know that sometimes judges do it to facilitate the prosecutors' job. Have you thought about that possibility?

[William Bartlett]

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. A membership offence per se is what we call a status offence, and it would certainly raise pretty significant charter issues, freedom of association being one of them.

On a reversal of onus, there are some reverse onus provisions dealing with particular issues in the Criminal Code, but they are pretty restricted. One of the initial questions will be, exactly what is a member? What are the characteristics of membership in a criminal organization? In some cases, the Hells Angels, for instance, for the full-patch members who wear the symbol, that may be fairly clear, but in other cases with street gangs it's going to be almost impossible.

Assuming that you could establish what membership meant, if the offence depended upon that allegation, and you simply reversed the onus, then it would be difficult to see that this would survive under some of the more basic guarantees of the charter.

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

I would like to address my question to the police representatives, Mr. Latulippe and Mr. Blainville.

Mr. Latulippe, a little earlier you talked about street gangs. You named them, and I think everyone is familiar with them. You talked about the Hells Angels, the triads—I'm not sure whether we should use that term—and the Cosa Nostra, the mafia. Those groups have been established in Quebec for a very long time. There are also the blues and reds in Montreal, who seem to split the territory between them.

One thing presents a problem, because I really do want to help you. Réal Ménard mentioned an important factor. He said, in a speech in the House in 1995, that organized groups were using legal businesses in the restaurant and construction industries to send the money. Recently, on the CBC, a Mr. Gravel, a journalist, talked about construction. The FTQ-Construction was connected... That didn't seem to smell right.

How are we going to do it? We are talking about large organizations; we aren't talking about guys selling on streetcorners; we are talking about very large organizations. How are we going to deal with what Réal Ménard was talking about?

Do you see what I have just done? I have made a connection, which had been made by journalists, and everyone is wondering whether the FTQ-Construction logo is also going to have to be banned! I have just opened a can of worms. How could you guide us through that now?

[Jocelyn Latulippe]

First, I don't want to talk about the example you mentioned. Let's take the example of some criminal organization trying to get control of criminal markets, instead.

I come back to the fact that we need to prevent these criminal organizations from getting the support of experienced people, people well known in their fields, who have expertise and a reputation that can help criminal organizations take over businesses, whether it be automotive, construction or restaurant businesses.

At present, they find some individuals useful and necessary. They are essential to these organizations. So we have to prevent this. We have to deter them from providing assistance to these criminal groups.

At present, an individual, for example a notary, who is charged with aiding a criminal organization is liable to a maximum sentence of five years, under the Criminal Code. It's the same thing for a driver who drives the criminals to a location where a transaction takes place, while the notary's assistance meant that the criminal organization could inject millions of dollars into the economy and take over legal businesses and jobs, and then, in a majority of cases, defraud the government.

So we have to make a distinction among these categories of enablers, between a driver, for example, and someone like a notary or an accountant who manages the assets and conducts the financial transactions.

[The Chair, Conservative, Ed Fast]

Merci.

I'll move on to Mr. Dosanjh for five minutes.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you very much.

I have a question for Mr. Bartlett, but I want to make a comment on the testimony by the two police officers.

We love the work you do. You protect us and provide public safety. But I'm somewhat concerned that you would advance a position...yet you have no in-house legal opinion, even, to support that position, as to whether or not what you are advancing is legally feasible, given the charter, given general principles of due process--even without the charter.

I want you to make a comment on it. I'm not making a personal criticism. Obviously your organization supports what you're doing. I would like to know whether or not it's appropriate for you, on behalf of your organization, to advance a position when you don't have an in-house legal opinion from some counsel you might have or an eminent scholar, because obviously we are bound by the rules of due process.

To Mr. Bartlett, if you say that list is not feasible...and I can understand that. My view would be that the list might not be feasible, even without the charter. Criminal law has evolved over centuries, or over 150 years or so in Canada. Even without the charter, I think it would be impossible to box in a definition. But if you didn't have a list, would there be any other legislative means by which we could define the scope so that it would become easier to deal with the criminal organizations in terms of seeking convictions?

[William Bartlett]

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. The idea would be to simply allow one court to take notice of findings of fact made in another court, where the facts and issues seemed to be the same, although that would not be without its challenges.

The other would be to try to address in some statutory way the nature of the evidence required to prove the existence of a criminal organization. Again, that would present its own challenges.

Is there a way to get around the challenge of proving that the person before the court has done whatever they've done in connection with a criminal organization? Certainly, we don't have any options at this point that would really cut that Gordian knot. If the consequences of the conviction depend upon showing that what they have done, they have done in connection with a criminal organization, then that evidentiary burden in some form is still going to be there.

We have dealt with other issues, such as proceeds of crime matters with a reverse onus after the conclusion of a criminal case, a reverse onus where it was alleged that the wealth accumulated by the person before the court involved organized crime activity. It was trying to get at some of the elements of the organized crime activity in that way.

But as to the basic issue of proving a criminal organization offence, I can't say we've come up with any magic bullets. Certainly we're exploring a number of ideas to see if we can find some way to ease the burden somewhat--although, as I say, the prosecutors we've talked to themselves don't see any easy way of doing that.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Rathgeber, for five minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to all the witnesses for coming.

Following up on the questions from my friend Mr. Dosanjh, I'm confused as to.... We've heard from the officers and we've heard anecdotally from other individuals how difficult it is to prove the existence of a criminal organization, and how in these megatrials sometimes days are donated to that proof.

To the criminal experts, I have section 467.1 in front of me, and it seems like a fairly simple definition: three or more individuals, whose purpose is the commission of a serious offence that's likely to result in material or financial benefit.

What part of that is so difficult to prove?

[William Bartlett]

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.

It's not so much a matter of any particular part of the definition that's the problem, it's the evidentiary burden that prosecutors have faced in satisfying a court that the criminal organization charge, which triggers a fairly significant additional penalty, has been proven.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Subsection 467.1(2) goes on to indicate a list of things the prosecutor need not prove. Are there potential additions to the list that may solve that problem? For example, you don't have to prove the criminal organization actually facilitated or committed an indictable offence, and it goes on from there.

[William Bartlett]

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.

I can't say there has been a lot of experience with these being used and tested in the courts and the courts reacting to them. Certainly this kind of evidence is frequently adduced, but it hasn't been presented in such a way as to show that adding to this list would materially help with the prosecutorial burden.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I'm very curious about the judicial notice. This came up once before in this committee or perhaps in public safety, I'm not sure which.

My friend Mr. LeBlanc asked you some questions, Mr. Bartlett, concerning judicial notice and some of the things were so obvious--the sun rises in the east and it's dark out at midnight. But there are no statutory presumptions that allow triers of fact to take judicial notice of those very routine things. Why, in your view, would it require a statutory presumption for the courts to take judicial notice of the existence of criminal organizations?

[William Bartlett]

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. It has to be of the very obvious category that Mr. LeBlanc was referring to.

What we're talking about is simply a statutory provision that would allow a judge to take the fact that, you know, given that the existence of a particular criminal organization was proved in one case, and the facts seen in the case before him or her seemed to be the same in the incident case...and make a presumption based on the finding in the other court.

Simply the normal rules call for this: if it's a material fact, then the charge before the court has to be proven before that court. So that would be an exception to that. It is not something that a judge could do, based on the common law as it exists at the moment.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Norlock, you have five minutes.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, gentlemen.

My first question will be to the police officers, and then I will switch it over to Mr. Bartlett.

It has been said to this committee, and you're telling this committee, that currently when you have organized crime and organized criminals before the courts, there is too long a time spent on trying to prove that it was a criminal organization. I think in your testimony you said it has taken from up to two weeks to a month. Is that correct?

Can you give me two or three principal arguments that are used by defence lawyers to try to dissuade the court from recognizing that organization as an organized criminal group? Are there three main arguments that are usually used? Usually there's a commonality there, I would think.

[Jocelyn Latulippe]

I am not thinking of any specific argument, other than that in fact the defence tries to establish that the person committed the crime for personal benefit. That prevents us from establishing that it is a crime committed for the benefit of an organization. We are not talking about a specific argument here, such as an attempt to discredit the evidence presented by the police or the witnesses' qualifications and knowledge. Ultimately, the work comes down to finding the weak link.

[Denis Mainville]

This is connected with the factors I mentioned earlier. You always have to establish the connections among these people, their participation, each one's role and status. It is a little more obvious in the case of full patch members, because they often commit the acts we expect to see, but it is much harder in the case of the enablers. It is all the factors, and not one criterion in particular, that are presented to the court.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

You say that there are no single arguments, that it could be a shotgun approach. The defence counsels just want to keep throwing up roadblocks so that the judge keeps having to acquiesce to their arguments. When you make the distinction between personal gain and gain going to groups, you mean you have to be able to prove that all the stolen goods, money taken by intimidation, or other resources go into a collective pot, a central bank account that all the different players draw on? When you say “enablers”, would they be legitimate firms that invest money for individuals or groups that the average person would normally go to? Or would these people go out and hire the best chartered accountants, investment counsellors, and lawyers to ensure their ability to conceal that they are engaged in a collective rather than an individual endeavour?

[Jocelyn Latulippe]

What the enablers do is help to camouflage certain things. Still, before proving that the person has committed a crime for the benefit of the organization, we have to establish the existence of the organization, its structure, its operating methods and its rules of engagement. In one trial we started, we were able to establish a list of 42 points of commonality among the members of the organization. That is the first part.

Then we have to establish that the person acted for the benefit of the organization. That is a factor in the second part. So the first part should not have to be continually done over. That way, we could focus on the fact that the person committed the crime for the benefit of the organization, establish what the person's role was. We would not even have to present the evidence over again in the case of a person who had already been found to be a member of a criminal organization in the past. The point is really to avoid having to prove this over again.

In the case of enablers, people who are not members of the organization, the evidence required is completely different. The enablers are not part of the gang. It is difficult to explain, but let's say that the evidence in the case of gang members and the evidence in the case of enablers, who are not gang members, are two different things. The measure in issue will not help us in the case of enablers. What has to be established is that enablers aided the gang by doing certain things. That is a different kind of participation.

[The Chair, Conservative, Ed Fast]

Thank you.

We've heard from our police witnesses the frustrations they've encountered in trying to deal with cases that involve organized crime and the incredible resources they take up. We've heard from our justice department staff that there may be legal obstacles to legislation that would help to identify these organizations.

Are there any other witnesses you can suggest who could help this committee move forward with this issue—constitutional or police experts? The fact that we're doing this study shows that there are serious obstacles preventing us from bringing these cases to trial in a speedy manner.

Do you have any suggestions, Mr. Bartlett?

[William Bartlett]

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. Certainly, there are some academics who have looked at the issues involved in criminal organization cases. I think the prosecutors would bring a valuable perspective to the committee.

[Denis Mainville]

I agree with Mr. Bartlett: there are specialists, particularly in BLACO, the Bureau de lutte au crime organisé. There is also the BLPC, the Bureau de lutte aux produits de la criminalité. These enablers would offer their explanations. The problems are completely different, depending on whether the issue is organized crime or proceeds of crime. These two aspects are dealt with jointly, but they involve totally different characteristics. In my opinion, it is important that the committee be aware of this. This means that a connection could be made with what we said about the tools we need for combating organized crime.

In terms of the police, we could use people in our organizations, experts in street gangs, who act as expert witnesses in court. They would probably raise the questions referred to earlier. It is those questions that most often have to be addressed in court when the issue is proving that we are looking at a criminal organization.

[The Chair, Conservative, Ed Fast]

Thank you. We might be in touch with you to perhaps get particulars of individuals who might move us forward.

We'll move to Mr. Murphy for three minutes.