When I suggested that another option might be to look at some process whereby a judge could take notice of findings, a fact made in another case before a court, Mr. Ménard said he didn't really see the appropriateness of what we were calling judicial notice.
If what you're suggesting is that we'd simply go to a court and ask the court to make a finding that a criminal organization existed, with no particular criminal charge before the court, that would be a process pretty much unknown to our criminal law. Our criminal law depends upon charges being brought against individuals and then brought before the court.
It might be feasible to have some kind of process for reporting the findings of fact--might; I'm not sure about that. That's an issue we're examining at the CCSO organized crime working group. But it might be appropriate to have them simply take notice as a rebuttable presumption in terms of the case before them of a finding made in another court where the facts seem to be the same. There are some criminal law principles that are on a much more restricted basis, but that might lead you to that.
But as for a process whereby the court simply in the abstract has a case presented to it as to whether or not a criminal organization exists, so the courts would be the one doing the designating for all time, I think the courts would have some serious concerns about any sort of process. I mean, it sounds a little like a royal commission or a judicial inquiry or something to that effect. The judiciary does sometimes participate in judicial inquiries in which there are particular things in issue, but for a court to be asked to simply establish for criminal law purposes a particular fact, whether it's the designation of a criminal organization or anything else, I think would be a pretty far-reaching suggestion.
I thought what we were talking about was a government designation process similar to the terrorist group listing process. The kinds of concerns you've voiced about that are certainly there, because it is a government process, so the courts, I think, are going to be concerned about trying to apply that to a case before them where somebody's charged with an offence.