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. With me is Paula Clarke, counsel with the criminal law policy section and a member of the organized crime team.
The Department of Justice has been studying the problem of the evidentiary burden involved in proving a criminal organization offence from the beginning of the development of the criminal organization provisions, now found principally in sections 467.1 to 467.13 of the Criminal Code, as well as in other parts of the code. That was in 2000.
It is an extremely difficult issue. We are continuously monitoring the application of the criminal organization provisions, consulting with prosecutors on whether or not the provisions are useful, and collaborating with provincial and territorial officials on emerging organized crime issues, exploring both legislative and non-legislative options to deal with them.
Most recently we have been studying the idea of approaching one of the evidentiary burdens by listing or scheduling criminal organizations for the purposes of the offences and the other provisions in the code that require the proof of the existence of such an organization. This is one of a number of ideas brought to federal, provincial, and territorial ministers responsible for justice by the Manitoba minister in late 2006. Some of the other ideas brought at the same time have found their way into Bill C-14, which was dealt with very recently by this committee.
The FPT working group on organized crime is a coordinating committee of senior officials in criminal justice. It has looked very hard at this idea, and some other options, over the course of the last year. We have not yet concluded these discussions, but a number of pros and cons have been identified. I know you've heard about some of the potential advantages of such a process, so I will concentrate on some of the concerns that have been raised about the viability and usefulness of such an approach.
We are, however, continuing to examine this idea, and I will briefly set out some of the considerations we have examined, and some of the other alternative options we have looked at. The discussions at the CCSO organized crime working group have also been part of a broader examination of the issue by the Department of Justice. We'll discuss some of our consultations with organized crime prosecutors.
As you heard from Mr. Randall Richmond, a highly respected prosecutor from Quebec, during your examination of Bill C-14, there are certain challenges associated with organized crime prosecutions, one of these being the length of time it can take the prosecution to establish the existence of a criminal organization. It is true that in some cases it has taken a great deal of time to prove this fact beyond a reasonable doubt, although the difficulties and the time involved have varied, depending on such factors as the size and complexity of the criminal organization that is at issue.
The prosecutor must prove this fact in each and every case, as it is a material element of a criminal organization offence, although the same issue will have been faced in other cases involving the same criminal organization. Even then, however, the evidentiary burden will vary in difficulty. Even when groups such as the Hells Angels are involved, the burden may vary depending on whether the crown is alleging that Hells Angels International is the relevant criminal organization—as was the case with the very difficult and lengthy case of Lindsay and Bonner in Ontario—or a local chapter, an affiliated club, or a group of associated people.
On the views of the prosecutors, we have discussed the issue of the evidentiary burden with various and many prosecutors. I would say that most of them have expressed concerns about the ultimate usefulness of a listing approach. These include the prosecutors on the CCSO organized crime working group, prosecutors with extensive experience in these matters, including in the challenges of proving criminal organization offences. These have also included the prosecutors consulted when the department held a prosecutors forum in Ottawa in December 2007 to discuss the organized crime provisions and the issue of listing criminal organization groups was discussed.
All of the prosecutors in attendance were very experienced in dealing with criminal organization defence cases, and the issue of the prosecutorial burden of proving the existence of a criminal organization in all of its forms was discussed in depth. There was consensus that the issue warranted further study, and the CCSO organized crime working group is carrying on that study. These prosecutors in general saw a number of potential problems and were ultimately doubtful that the approach would be beneficial in the end.
They had a number of important messages for us. The first was that the criminal organization provisions are relatively young. They've only been enforced since early 2002. There was a concern that as a depth of experience with these provisions was still being accumulated, further problems could be posed by changing the rules of the game significantly at this point.
The second message was that in their view there was simply no easy way to approach the evidentiary burden inherent in an organized crime prosecution. On a possible listing approach, it was felt that such an approach--or any approach that sought to deal with the burden outside the courtroom in which the charge was being heard--would introduce a whole new line of argument and charter challenges. At the end of the day, even if the approach withstood the challenges, it might not make these prosecutions any easier.
On the third message—this is the good news—they felt that significant progress was being made, and that these prosecutions would become easier and more effective as more experience with them accumulated. They suggested that trying to implement an entirely new approach to the basic evidentiary burden, particularly involving a government designation process taking place outside the courtroom, might only impede that progress at this point.
There are a number of challenges that a government designation process would face. First, the use of a listing process for the organized crime offence would undoubtedly attract a very high level of charter scrutiny. While it is true that such a process exists for the designation of terrorist groups, it is a rather novel one that has not yet been vetted in a challenge. Proving a material element of a criminal offence by reference to a government designation process raises issues involving some of the basic principles concerning proving a criminal case. While we believe the terrorist group listing process should survive a challenge, it might be wiser to await the result of a challenge in the courts before considering extending a similar process to criminal organizations.
Second, although criminal organization offences are very serious criminal matters, they are nonetheless distinct from terrorism cases that have a national security dimension as well as a criminal dimension. The challenges to applying such a process to cases other than terrorism matters could be even greater.
Third, there would be a number of difficulties in showing that the criminal organization in a particular case was identical to a group on the government list. This would even apply when a relatively highly structured group such as Hells Angels was an issue. If you attempted to apply such a process to a much less structured organization such as a street gang, whether the particular group of people that the accused before the court was alleged to have been involved with fell within the designated group could be still be challenged by the defence. Less highly structured groups, particularly street gangs but all sorts of criminal organizations, have varying degrees of structure, identifying characteristics, and organizing principles. The challenges would be varied and much greater in reference to many of them.
The list could even be a bit of a double-edged sword. It might work only for a relatively few of the over 900 criminal organizations that are believed to be active in Canada, such as some of the more highly structured biker gangs--the Hells Angels group that the motion addresses. The fact that other groups were not on the list could be cited by the defence as a fact, casting doubt on whether there was proof beyond a reasonable doubt that they were indeed criminal organizations.
Bear in mind that according the Criminal Intelligence Service of Canada, there are over 900 of these groups. The Hells Angels are very visible. Some of the other biker groups are very visible. But criminal organizations vary a great deal, and some of the criminal organizations that are posing the greatest challenges now are the street gangs that have very fluid and unstructured organizations.
The existence of a listing process might not even significantly reduce the burden on the police to gather evidence of the existence of a criminal organization. Even though a group was a listed entity, law enforcement would still have to collect evidence for a case to be presented in court, as the listing process in its application to a particular case could still be challenged in any case. Should the court find that the listing decision was not sufficient to prove their group was a criminal organization beyond a reasonable doubt in that particular case, the prosecutor would have to be in a position to prove the issue in the normal way.
It must be said that the concept of a listing approach seems to enjoy much greater support from police than from prosecutors. The prosecutors we have consulted have been of the view that the evidence-gathering approach and burden of the police should remain a rigorous one, regardless of whether or not a listing process exists.
In any case, these are just some of the concerns that have been raised. It does not mean the issue has been resolved. The CCSO organized crime working group will continue to study the issues and will be reporting to FPT deputy ministers and ministers as soon as the examination is concluded.
We're also looking at a range of other possible options, such as allowing a judge to take judicial notice of earlier decisions. This approach would have the advantage of taking one judicial decision and applying it in another case, as opposed to a government designation process falling outside of a courtroom entirely.
Even with that kind of approach, the prosecutors we've talked to still see some challenges. But that's another option we've been looking at, or possibly at legislation that would clarify what sort of evidence could be introduced to prove the existence of a criminal organization. As we go on, we may find more options. The issue of the evidentiary burden is very complex, with a lot of elements, and we will continue to examine it.
Thank you, Mr. Chair.