Justice Committee on May 26th, 2009

[Supt Michel Aubin]

Mr. Petit, I will try to answer you to the best of my ability. Those who are more familiar with the Hells Angels than I am could perhaps add to my response.

There are two things that come to mind. First of all, certain large criminal organizations, such as the mafia, will not necessarily incorporate, as you say, or wear items of clothing that could identify them. In that case, it is more of a lifestyle, a culture or a cult that is involved. I do not think, however, that simply because an organization appears on a list, it would necessarily change its name. It is important to understand that, for many criminal organizations, such as the mafia and other groups that originated in Asian countries, it is a question of pride and membership in a particular circle. I do not think an organization would change its name, to call itself Mafia 1 or Mafia 2, just because we have taken action.

For many of its members, it is really a question of personal pride and membership in a group. Personally, I do not see it that way. However, I cannot speak for the Hells Angels. Nor do I want to address the legal question, because that is not part of my expertise. I think we could go forward and consider the possibility of technical variations in organizations. That is the way it works with the drug legislation. If we add a drug to the list, we will also add its derivatives. There are technical terms available to ensure that criminals cannot use just any derivative or polymer. In terms of the precursors, we will obviously use the derivatives of the precursor itself.

[The Chair, Conservative, Ed Fast]

Monsieur Lemay, did you want to follow up on that?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

My question is addressed to Mr. Mainella.

You heard the questions I put to Professor Roach. A little earlier, I was re-reading sections 467 and following. There must not be much missing there, because you said there is a need to reduce, that the evidence has to be different, that we should perhaps consider making things a little easier and that there has to be more focus on electronic surveillance. And yet, collecting the evidence takes just as much time when electronic surveillance is involved.

I want to try and understand. How would a listing of organized crime groups help you, more so than what is currently in sections 467 and following, and if it would help you, how? What is your response to Professor Roach's argument? Are you not concerned that the Hells Angels could take you to Federal Court to have their name removed from the list?

[Christopher Mainella]

I'll answer that two ways. First, when you're designing legislation it's not just for one particular group. The one thing about motorcycle gangs is they have trademarks; they have very clear indicia. Most criminal organizations are amorphous and they're very difficult to list. It's a very unwieldy and inflexible tool.

Secondly--and this goes back to my answer to Mr. Comartin--the trier of fact, whether it's a judge or a jury, needs context. They need to understand that if Mr. X is the president of the chapter of a particular outlaw motorcycle gang, what powers does that mean. It's not like the Canadian Constitution, where the powers of a branch of government are listed in a document. You have to explain that through evidence. So in terms of answering your question, I'd still have to call several days of evidence to explain the context of facts.

I may have a document that you may think nothing of when you read it, but in the gang culture it may be a very significant document, so I would have to call one of the very few experts in Canada who knows about that document. So the evidence would probably have to be repeated.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you.

[The Chair, Conservative, Ed Fast]

All right, our next round would be Liberal and Conservative. Are you okay, Mr. Murphy?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Yes, for fifteen minutes or so.

[The Chair, Conservative, Ed Fast]

I'm going to take the liberty of just asking a question myself. I think all of--

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

Mr. Chairman, pardon me for interrupting. I asked a question, and Mr. Aubin answered. Would someone else like to respond? Perhaps the other witness could answer. I think you were waiting for a chance to comment.

[Francis Brabant, Legal Counsel, Sûreté du Québec]

Thank you.

In terms of organizations such as biker gangs, they are, in fact, international organizations devoted exclusively to criminal activity. This is a phenomenon that has been observed everywhere in the world. It has been noted in Europe and elsewhere that disputes have arisen between international criminal biker gangs whose sole aim was to exert total control over a specific criminal territory. There I am referring to narcotics trafficking, prostitution and all the other types of criminal activity that can benefit a group.

Members of these organizations use their image when they make contact with members of another organization, or even the same organization. I could give you the example of the Hells Angels. Members of the Hells Angels group in Quebec and in British Columbia use the same selection process. That means that they are all loyal to the organization. That being the case, they can collaborate for the purposes of their illicit trade without having to worry about protecting themselves, as opposed to dealing with members of another organization or with independent criminals who are not part of a criminal organization. The partnering process would not occur without a certain amount of mistrust. Wearing its colours and identifying with an organization, including obeying its rules regarding the wearing of those colours, authenticates the members and facilitates their criminal activity.

I am talking about the Hells Angels here. However, at the international level, there are also such groups as the Outlaws, the Bandidos, the Rock Machine, and the Mongols, which are governed by the same principles and operate in the same way.

Flaunting one's membership in such an organization becomes a tool. In some cases, it can even act as a deterrent to people, in both the civilian population and among local criminals or members of other organizations who oppose a takeover by the organization that is out there showing its colours. Being out there for everyone to see or using the name of one's organization elicits a certain image in people's mind, just as the words “Hells Angels” do. Things immediately come to mind and suggest that this is a criminal organization, because there have been prosecutions, media coverage in other countries, and so on. These things are well known to people in the criminal justice system, because they have been acknowledged in Canada.

A little earlier, statistics were mentioned, reference was made to days or weeks. Just to give you an example, on the Software project, the R. v. Lindsay case, Mr. Cameron spent 10 days proving the act of extortion. Six months were needed to prove the existence of criminal organizations in Canada. That is really a very lengthy and significant period of time, compared to the offence.

It is also important to understand that a member of the Hells Angels who is in charge of a narcotics trafficking network is contributing to the overall welfare of the group. Part of the criminal revenues are spread around to improve the organization and make it more powerful. When a member like that is arrested, those things are often lost.

I see that Mr. Latulippe may want to add something. However, I do think that shows the impact that these images can have.

In closing, I would like to raise one final example. In 2004, there was a gathering of Hells Angels members in the Sherbrooke region to celebrate an anniversary. Members of the organization from across Canada travelled to Sherbrooke on that occasion. About 25 members of the organization from British Columbia decided to fly in economic class and to show their colours. Complaints were made during the flight by the airline staff. Subsequently, passengers also complained, saying that the fact these individuals were showing their colours had upset them. I was asked to meet with a security manager for the airline company in Montreal. He asked me what steps could legally be taken under the legislation. He wanted to know what he could do and what the law allowed him to do in such cases.

I had to tell him that any action fell within the purview of the airline company itself, which could possibly ask such individuals not to show their colours, because it upset their clients.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

I'm going to give Mr. Comartin a chance, but before I do, I have two short questions.

Mr. Mainella, in your earlier comments you quite correctly stated that being a member of a criminal organization is not an offence, it's simply an element of an offence. Is there any merit to actually making a membership in a criminal organization an offence? Would that assist the police?

[Christopher Mainella]

You buttress right up against freedom of association. You'll find--and I'm just thinking of certain outlaw motorcycle gangs that I can talk about--that some members commit no crimes. You can have rare individuals in some groups that commit no crimes. They may have a particular function that facilitates other members doing that. It's probably sort of an asp nest type of solution. I don't know if that will withstand charter scrutiny.

[The Chair, Conservative, Ed Fast]

Professor Roach, I think Mr. Lemay had asked earlier about rebuttable presumption. Is there a way of strengthening the ability of the courts to take judicial notice without necessarily impacting the presumption of innocence?

[Prof. Kent Roach]

I think for the reasons that Mr. Mainella said, judicial notice is really not possible when you come to an element of an offence. You could have a statutory presumption that X organization is a criminal organization. The onus could be put on the accused to prove on a balance of probabilities that it's not a criminal organization. That would violate section 11(d) of the charter, but it could perhaps be upheld under section 1. The Supreme Court has in a variety of cases--when it has looked at drunk driving and prostitution--accepted these as valid grounds for saying that a violation of the presumption of innocence, a reverse onus on the accused, violates the accused's rights but nevertheless has been justified as a reasonable limit.

[The Chair, Conservative, Ed Fast]

What you're saying, really, is that judicial notice is really not an option for us at all.

[Prof. Kent Roach]

No, I mean for the reasons that have already been expressed, I don't think you can have judicial notice of an essential element of an offence. With the reverse onus that I talked about, we would not know if it was justified under section 1 until that issue was finally litigated. That goes back to my issue: I think there are other reforms that can be done that will not raise any arguable charter issues but that could also deal with the issues of trial length and trial complexities that you've heard of.

[The Chair, Conservative, Ed Fast]

All right.

Mr. Comartin, one last question.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I have two.

Mr. Mainella, perhaps...

Mr. Vandal, it may be the same thing for you.

Regarding the problem with getting enough expert witnesses, we heard this at the public safety committee about three years ago from Le Sûreté at that time, so Superintendent Aubin, you may comment too. Is there not some way we can develop a larger group of expert witnesses?

I have just a quick second question, and this is to you as well, Superintendent. You made some reference to the Australian act in your notes. Have you looked at it in detail? Our understanding is it doesn't go into listing. Can you give us a quick look at where it does help police work and prosecution?

[Supt Michel Aubin]

On the issue of expert witnesses, it is a challenge. Maybe Mr. Latulippe can address it from the Quebec front. That would probably be helpful.

The RCMP recognizes it, and we are challenged on it due to human resource issues. I'm not going to hide that from you. It is a challenge, and we are trying to address it. We do have a program that we're trying to rebuild at this time.

On the issue of Australia, what I've learned through the assistant commissioner, who visited us approximately a month ago, is the fact that the enacted legislation and the measures they have are not necessarily listing the organization, but they're recognizing the threat that these criminal organizations, bikers, are posing to society. This followed an incident at an airport where there was a shootout. I understand that the courts and law enforcement were provided with extra powers that go against their legal structure. I'm not sure what the document is, and I apologize for that, but it provides these extra measures to be able to deal with criminal organizations.

Our pitch to you, sir, is basically to recognize the problems that these organizations are causing and the amount of work that's required by law enforcement to deal with them, and that it's probably time that we had some additional measures to deal with them.

From our perspective, it's an issue that's very costly, and it affects our capacity to address other measures.

[chief Jocelyn Latulippe, Chief Inspector, Director of Criminal Investigation Services, Sûreté du Québec]

I simply want to say that, as regards expert witnesses, training costs and human resources are not the only things to be considered. There is also the length of time. This is an occupation that one gets better at through experience, over many years. However, it is not easy to retain people in these positions for many years, so that they can become real experts. It is a constant challenge to have enough experts available, because of the way people's careers and criminal cases evolve.

Just to follow up on a question posed earlier by Mr. Petit, I want to point out that the number of criminal organizations being targeted through such a measure is very limited. And this really refers to international organizations with a solid base in Canada which, based on intelligence reports we have in our possession, threaten the economic stability of Canada, as well as stability, peace and public safety in certain areas of the country.

These 53 criminal biker gang organizations, which we cited as an example, are recognized around the world and are not the type of organizations that would want to change their name. Indeed, the culture of these organizations is such that changing their name would be an affront to their pride, their reputation and their strength in terms of their capacity for violence and intimidation. Based on our experience, that is not something that is likely to happen.

[The Chair, Conservative, Ed Fast]

Thank you.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Could we just have a comment from Mr. Mainella on the expert witnesses, please?

[Christopher Mainella]

They tend to be officers who have policed an area for a long time, so they have that background. They tend to be at the end of their careers. Again, in every case I have ever done involving organized crime, that's the first dispute with the police--in terms of who their expert is and what they know about the group. It comes down to what the superintendent said: it's simply the training and resources.

You can do it for only a brief window of time and then you become stale-dated because you're away from policing it. The difficulty is that you constantly need them.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Is it hard getting them qualified?

[Christopher Mainella]

No. When they go into this particular line of work there's a whole routine in terms of developing a curriculum vitae, testifying, going to groups across Canada and serving. But it's very resource-intensive.