The effect of this is to increase the cost and length of these prosecutions. Many times I have to prove the equivalent of water being wet, but that is because of gang dynamics. For some groups there is an unwritten rule that you cannot plead guilty to organized crime charges. Recently I had a case where a member of a biker group had a ten-minute trial by simply allowing the crown to read in the allegations and make no submissions against conviction. Normally that is a guilty plea, but the dynamics of the gang would not allow such a plea. Canadian law does not allow a plea of no contest, but that is effectively what we did in that case, and it took me and the defence counsel months of negotiations to come up with that solution to deal with the realities of the gang.
In terms of my second point about how costly these cases are, the law in this country requires the crown to prove each time a particular group is a criminal organization, and absent an admission by the accused, there are no shortcuts.
I wish to read you a passage of the Manitoba Court of Appeals decision in a case called Kirton, delivered on April 5, 2007, which dealt with the issue of whether a decision of a trial court in Ontario that had held that the Hells Angels were a criminal organization could be relied on by other courts in other provinces:
However, a careful reading of Lindsay leads me to the same conclusion as in Ciarniello, namely, that the findings in Lindsay are very much based on the evidence before the court in that case, and cannot be automatically applied as if it was an "in rem judgment" (at para. 67), that is to say, a finding affecting the world at large. Needless to say, a court cannot take judicial notice of the fact that the Hells Angels is a criminal organization, tempting as that might be.
That is a correct statement of the present law in Canada. And what that law means is that for each case the police must gather evidence about a particular group, which the crown presents, often taking days or weeks of court time. The crown also has to go to the expense of finding expert witnesses. An expert witness is a person with special knowledge beyond the jury, or the judge where there is no jury.
A properly qualified expert can give a court opinions. This type of witness is very important to explain to a judge or a jury how a criminal organization operates and why it meets the definition in section 467.1(1) of the Criminal Code. Practically, with organized crime groups the crown must rely on experienced police officers for their pool of expert witnesses. The problem is there are very few organized crime experts in Canada. To know a lot about these groups you have to police them for a long time. To be accepted as independent before the court you can't be involved in the particular investigation. Thus an expert witness has a short shelf life. I have found in my experience many expert witnesses are policemen at the end of their career, so the passage of time and retirement also take their toll. One of the first questions I ask the police when they bring me a potential organized crime prosecution is “who is your expert?” If they don't have one, I often say thanks, but no thanks; don't bother with criminal organization charges. The police are often upset by that advice. That's a hard choice to make, but I have to consider the broader public interest and the rights of the accused.
These cases often therefore leave the crown with being forced to prove a particular group is a criminal organization because the accused wants to save face in the gang. That requires lots of resources and experts. In a case I did two years ago involving a member of an outlaw motorcycle gang, the jury heard over a week of evidence about the gang and thousands of dollars were spent bringing in witnesses from all over Canada. That was the abridged version. My colleague who had the file before me thought that it might take a month to prove the criminal organization aspect of that case. When it came time for closing addresses to the jury, defence counsel didn't take issue with whether the particular biker group was a criminal organization, but his client could not admit that due to gang dynamics. That is a reality you need to appreciate. The dynamics of a particular gang are always going to be a backdrop in any prosecution.
I know the criminal law policy section of the Department of Justice is studying the issue of reforming the evidentiary requirements of proving a criminal organization. I wish to impress on the committee that there are no easy solutions to the current shortcomings of the law. Any reform must be designed to comply with the charter and also be flexible enough to deal with the vast array of criminal organizations, both today and over the foreseeable future.
The organized crime laws Parliament passed in the late 1990s were born of the biker conflict in Quebec. However, they also are intended for sophisticated international telemarketing fraud, stolen car rings, Ponzi schemes, and countless forms of illicit drug networks.
How Parliament deals with the evidentiary requirements of proving criminal organizations must be flexible. There are possible reforms that have been raised before, such as allowing as evidence a previous judicial finding about a particular group. Such a system would allow a judge to consider as evidence the findings of a previous judge or jury. Defence counsel could try to convince the judge not to place any weight on that prior decision. That prior decision would not bind the judge; it would just be a piece of evidence to weigh.
Another alternative is having Parliament declare that the issue of whether a group is a criminal organization is a question of law, so that at least a jury would not have to be tied up listening to such evidence for days or weeks. Such matters could be decided by a judge prior to trial under subsection 645(5) of the Criminal Code. Reserving types of issues for judges only is already part of our criminal law for difficult questions like attempts.
Reforms can be tailored to ensure a fair process to accused persons to withstand judicial scrutiny under section 7 and paragraph 11(d) of the charter. Any reform will breed litigation for those on the front lines, as members of criminal organizations will resist any attempts to threaten their livelihoods.
The practical reality today is that many prosecutors deal with the current state of the law by advising the police to keep their organized crime investigations small and keep them simple. A one-week investigation where you can put a covert camera in someone's house to watch them packaging drugs and then arrest two to three gang members is often far more effective than two years of wiretaps and the possibility of 50 accused. The latter type of case may collapse under its own weight, which is what we want to avoid. Not every police investigation needs to be a re-creation of the Normandy invasion in 1944. A small commando-type raid will often do the trick.
Thank you, Mr. Chair and members of the committee.