As I was saying, the provisions in sections 83.05 to 83.07 of the Criminal Code, which provide for the listing of terrorist groups, were enacted in 2001 as part of the ATA to comply with UN Security Council resolution 1373. They construct an elaborate structure for the cabinet, on recommendation of the Minister of Public Safety, to list terrorist groups, with reviews every two years. They also provide for the protection of secret intelligence used to support the listing and for judicial review of the listing in Federal Court.
In theory, groups can challenge the listing after it's made, but this has not been done by the 40-odd terrorist groups that are currently listed. So the ability to bring a judicial review application for listing has proved to be somewhat illusory. Indeed, it might not be too much of a stretch to say that if a group wanted to challenge the listing, the challenge itself might be seen as evidence of participation in the activities of a terrorist group or criminal organization. It might be thought that the challenge was brought in order to enhance the ability of the group to commit a crime. In the Criminal Code, these are crimes under sections 83.18 and 467.11—for terrorism and organized crime, respectively.
From the state's perspective, a challenge to a listing decision could expose general intelligence about a criminal organization. If the Hells Angels or another group were listed as a criminal organization, the intelligence that would support that could be exposed through judicial review. Under section 467.1, however, a prosecutor could choose to define a criminal organization fairly narrowly. A criminal organization is defined as any group of three or more persons that has as one of its main purposes or activities the commission of serious offences.
So even if listing were desirable, I'm not sure that it would be practicable or advantageous from the state's perspective. You have to recognize that the definition of “criminal organization” is so broad that it can encompass almost all criminal conspiracies, and any list of organized crime groups could be an administrative nightmare. It would either be excessively long or under-inclusive. Listing is always going to lag behind developments on the ground and the permutations of organized crime. Indeed, this has been the case even in the terrorism context. There are fewer terrorist groups than there are organized crime groups. In both the Khawaja case and the ongoing Toronto terrorism prosecution, prosecutors have not been able to rely on the listing decisions under sections 83.05 to 83.07, so the indictments in both of those cases allege an ad hoc group, essentially the criminal conspiracy. I think the same might occur if criminal organizations were listed.
It is inevitable that a listing provision will be challenged under the charter. I'll say something about the merit of that challenge later, but why give defence lawyers another target, especially when, to judge by the Lindsay case and the Terezakis case, the developing consensus in the case law is that the existing provisions are constitutional. To introduce something that is only going to attract charter challenges could actually prolong criminal trials.
Similarly, I think there's a danger here of fragmenting criminal trials. Let's say that you list a criminal organization à la the terrorist group model. Does this mean that the criminal trial will have to be held in abeyance while that group challenges the listing provisions in the Federal Court? Generally, it's not desirable to fragment criminal trials.
So let's come to the merits of a charter analysis. I actually think that listing probably could be upheld as a reasonable limit on freedom of association, given that there would be no immediate consequences that would follow from the listing. Courts might, however, look at alternatives under the proportionality test, alternative means that are less rights-evasive, to deal with the problems of trial delay and trial complexity. To me, that is really the issue we're talking about: trial delay and trial complexity.
I would even go so far as to say that listing might also be upheld under section 7 of the charter if there were regular judicial reviews. Nevertheless, these reviews will be ex post, and some thought should be given to allowing ex ante challenges before the listing is made.
It seems to me that the most serious charter concern with listing is that I think it may very well violate the presumption of innocence in section 11(d) of the charter. What listing would do is essentially substitute a cabinet decision that a criminal organization is a criminal organization for proof beyond a reasonable doubt of an essential element of a crime, if the crime involves a criminal organization as an enhancement.
The Supreme Court of Canada has, in cases such as Regina v. Whyte, 1988, 2 Supreme Court Ruling 3, held that the substitution of one element of an offence for another element of the offence will violate the presumption of innocence unless the essential element follows inexorably from proof of the substituted element. In English, what I'm trying to say is that listing would be an administrative shortcut around proving an essential element of the criminal offence.
Indeed, we even find this in our sentencing jurisprudence. As you know, even if a criminal offence is not charged, the fact that a crime was committed for the benefit or at the direction of or in association with a criminal organization is rightly deemed to be an aggravating factor in sentencing. But under paragraph 724(3)(e)--and this has been the law since Justice Dickson articulated it in the Gardiner case in 1982--the prosecutor has to establish beyond a reasonable doubt such aggravating factors. So it seems to me that listing would be a legislative and executive shortcut around the reasonable doubt proposition, which is a fundamental element of our Criminal Code.
Finally, I would suggest that listing is a practice that challenges the separation of powers we've long had in our democracy, and I don't think it should be expanded beyond the terrorism context. Listing fuses together legislative powers, executive powers, and judicial powers. Essentially, listing allows the cabinet to take an issue away from the trial and to deem that an essential element of the criminal offence has been established. There are some dangers that wrongful listing will not be undone by judicial review. There has been at least one example in Canada of an individual being wrongfully listed under the UN Act regulations.
Finally, I would suggest that listing would represent a seepage of anti-terrorism law into the criminal law. We're not here to debate the ATA, but I think it is important to remember that this is how the right to silence was undermined in the United Kingdom. Parliament first made an exception to the right to silence in the terrorism context, and it then spread to the rest of the criminal law. For that reason, I have concerns about the spreading of the listing concept.
Having said that, I think the problems that police representatives have identified of complex, lengthy trials in the organized crime context are very real problems, and I agree with them that there is a problem. But it seems to me there are many other remedies we can look at rather than listing, and that listing might turn out to be cosmetic and problematic.
Some of those remedies have recently been recommended in Ontario by Justices LeSage and Code. They include real powers for pre-trial judges to make rulings that will be binding on the trial judge; enhanced severance powers that would allow binding rulings on criminal organizations or on a wiretap issue to be made and then the subsequent conspiracy to be severed out into smaller and more manageable trials; improvements for electronic disclosure; and improvements in electronic surveillance and witness protection.
I would submit that these are some of the bread-and-butter issues, not listing, which I fear may not be practical and will for sure be challenged under the charter and will strain our traditional idea of the separation of powers between the judiciary, the legislature, and the executive.
Thank you very much.