Justice Committee on June 15th, 2009

[Paul Burstein]

That's a good question, Mr. Comartin.

I think efficient lawyers would have that issue determined before trial. Certainly now in Ontario, in the aftermath of the Code-LeSage report, it is something that would have to be addressed before trial to promote trial efficiency.

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

In terms of Code-LeSage, is it Code-LeSage or LeSage-Code?

[Paul Burstein]

That's a good point.

It's Chief Justice LeSage. I think we all call it Code-LeSage, but it should properly be called LeSage-Code.

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

In terms of that report, are you seeing any signs of its being implemented?

[Paul Burstein]

Absolutely. There's a committee or task force in the Ontario Attorney General's office that's tasked to engage in the implementation. There's a judicial committee. There are liaison committees between the judiciary, the crown, and the defence bar. Legal Aid is taking it very seriously. Obviously they control the purse strings, and that has influence.

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

Is that only in Ontario, or are you seeing it adopted elsewhere?

[Paul Burstein]

I couldn't speak to other provinces, but much of the LeSage-Code report was modelled on what they're already doing in B.C. I think Quebec has a similar situation. Ontario was the most inefficient. That's all I can speak to.

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

That's all, Mr. Chair.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Rathgeber, for seven minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

Thank you to the witness for his attendance today.

Similar to some other members of the committee, I'm slightly troubled by some of your comments, and I thought I should get a little more detail.

We heard from federal prosecutors. If I heard your evidence correctly, you indicated that prosecutors were not asking for this type of legislation. That is not my recollection. I heard prosecutors tell me that they take weeks, sometimes months, with complicated expert testimony to establish the existence of a criminal organization. My recollection of the evidence from the crown's side is certainly different from your reading of it. I think that might have been mentioned on the other side.

In any event, today you're regarding this as not being necessary. That may or may not be true, and there may be other ways of doing it with respect to affidavit evidence. But what is the downside in doing what law enforcement and the crown prosecutors are asking, which is to take what is seen as the big hurdle in these mega-trials, the establishment of the criminal organization?

[Paul Burstein]

First of all, the only prosecutors I saw testify before you were Christopher Mainella, the senior crown counsel from the Public Prosecution Service of Canada, PPSC—I thought his bailiwick was in Alberta, but I might be wrong—and Mr. Bartlett and his colleague, whose name escapes me right now. You're quite right, Mr. Mainella testified that in some cases, as I think he described it, he'd say to the police, “If you don't have an expert on gangs, then forget it, I'm not going to bother prosecuting.” Both of them were quite clear that it's not the main hurdle.

The big hurdle is still proving knowledge of each particular individual that the criminal organization exists, which listing has nothing to assist with, but an expert still does, and then proving actual membership in the organization. Again, you can't list individuals. You can create a list of organizations. It's not going to get over the main hurdle. Both of those prosecutors agreed that the evidence they call to support the experts' testimony isn't going to disappear by listing. They still have to call all the evidence of symbols, what the significance is, and the structure of the organization in order to prove knowledge and association of each individual.

Listing isn't going to accomplish much of anything. Even if you establish that, and you list the Crips, well, great, how does that help the crown in my case, where they're alleging that these five urban youth who are calling themselves the Crips are actually part of the Crips that are listed in the Criminal Code? Just because I put the word Crips on my back doesn't mean.... Judges will not simply accept that just because you have a shirt with a name on it and that name is found on the back of the Criminal Code, it means you're part of that criminal organization. They're still going to have to call an expert. That's my point. In other words, there's not going to be a lot of saving.

There's one last thing. Even if you don't think the affidavit method is perfect, approach it in the same way as the many mechanisms in the code, where proof of that kind of expert fact is done by way of certificate or affidavit--for instance, breathalyzers and drug analysis. Whether you use the provisions that are already there is irrelevant. You can create a new process designed specifically for criminal organizations that allows for certification by an expert, who can still be subject to cross-examination in the individual case. That's another way to approach it.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

One of your proposed solutions, speaking of affidavits, is the affidavit method, where an affidavit from one jurisdiction and one trial could be used in another. And you indicated, at least hypothetically, that often defence counsel will not have instructions to admit, but they won't take issue. But if the client is sophisticated enough to tell his defence counsel to object to either the admissibility of the affidavit or to cross-examine on the affidavit, aren't we right back to where we are right now?

[Paul Burstein]

No, because they can't object to the admissibility of it. The code provides for it. The only thing they can do is seek leave to cross-examine. They can't just insist on it as a right. Parliament took care of that a long time ago.

My point is that to be granted leave to cross-examine an affiant under section 657.3--no different from cross-examining a drug analyst or a breath technician--you have to be able to establish to the judge that there is some purpose to the cross-examination. All I'm saying is that a judge is going to say to defence counsel, “Why should I permit you to waste this court's time in cross-examining the expert? What questions are you going to ask? In what areas do you think this opinion is weak?” If the defence can only say, “Well, I want to ask all of the questions that the lawyer in the other case asked, as in the transcript in front of you,” no judge is going to let them eat up court time to do it again--not a chance.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

The Manitoba Court of Appeal, I believe in Kirton, said that a trier of fact cannot take judicial notice of the existence of a criminal organization. If we were to make legislative amendments to the code to allow that to happen, would you support that, as opposed to what this motion ultimately is looking at, and that's the listing of criminal organizations? Would you support an amendment to allow judicial notice?

[Paul Burstein]

Taking judicial notice isn't much different from what I am saying now. The only thing is it's going to be less clear. You're still going to end up with litigation because the defence will be able to say, “Well, you can't take judicial notice of it. What are you basing that on?” As a defence lawyer in a case, I would say it's not that the Hells Angels being a criminal organization is not a fact well known to the public--one of the tests for judicial notice. I'm saying that rather than reinventing the wheel and creating more problems, more litigation, which I'm not in favour of.... Look, I know there are some defence lawyers out there who litigate for the sake of litigating. That has never been my style, but it's going to happen. What I'm saying is that to avoid inefficient trials, you need to simplify it. On the face of it, you may think listing is going to simplify it, but it's not; it's going to create parallel collateral proceedings that don't need to exist if you just let the crown prove it.

You heard from the prosecutors. They're telling you they're getting better at it. It's still new to them in terms of how they can prove it. They are getting more efficient at it. And really, that's what this issue is: how can we help them get better at it and more efficient at it faster? Changing the law isn't going to make them better; it's going to make it new and they're going to have to start from scratch.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go back to Mr. Murphy for five minutes.

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

Thank you.

In your statement, or perhaps in answer to me, you talked about how the crown wanted to bring forward a lot of evidence about the gang or the organization in question. I inferred, after thinking about it, that you were suggesting that they wanted the public spectacle of the bad guys, and they did this for the purpose of that, and not really towards furthering the case necessarily. That's one thing that I inferred from your comments, and I wonder why you think that. That's number one.

Number two, let's distinguish between the gang that consists of three people, and they get their name from someone else and they have leather jackets that they put their own mark on. Let's say it's the Hells Angels Motor Club, which is a very sophisticated financial organization that permeates every part of society in parts of this country. Let's just talk about them. What really would be the harm in saying, “You're a Hells Angels member; this will expedite the trial.” They will not deny.... I'm going to ask you that, because you've had clients, I suppose, who might have been.... Are they going to deny being members of the Hells Angels Motor Club, or one of the top three organizations like that? Are they going to morph into something and become the Réal Ménard Club? No. They're always going to be the Hells Angels Motor Club. They're proud of being what they are.

So what is it that they're going to shirk from? Like a terrorist organization, they're not going to deny who they are, so why isn't this a shortcut? Forget about the gang of three there.

[Paul Burstein]

Okay, but remember that the Criminal Code doesn't require proof of a well-structured organization. I'll go back to that again. I'm not alleging any mala fides on the part of the crown in the Lindsay case. It was the first major criminal organization prosecution, at least in Ontario; I don't want to say in the country. They were figuring it out, and when I say “as they go along”, I mean for the first time, right?

But in the end, the issue in the Lindsay and Bonner case, after we heard the six months of evidence about Hells Angels International, was whether this group of people were part of the international group. So I ask you to ask yourself, what was the point of proving that Hells Angels International was a well-structured, well-financed, intricate organization when they could have just focused on whether or not these 10 were part of a bigger or a criminal organization? Maybe you call them Hells Angels International, or maybe you just call them Hells Angels.

In other words, who cares? The offence was as the B.C. Court of Appeal said in the Terezakis case. It's very simple. It's whether or not they're part of a group with at least two others and they know that one of the main purposes is the facilitation of a criminal offence for material gain--plain and simple. They get all the enhanced punishments and everything else.

So I'm not saying the crown did it for a bad reason, but like it or not, trials are public spectacles, and so they should be. Whether or not they should or shouldn't have gone for six months to prove the Hells Angels were a criminal organization is beyond my pay grade--in other words, I'm not footing the bill--but they didn't have to.

In terms of your question about “Why shouldn't we? It's just a shortcut”, it's because you're not going to make a law that says the Hells Angels are a criminal organization. You're going to make a law that says somebody, whether it's cabinet, a group of judges, or whatever group is going to make the decision, can decide on application by a minister, the police, or whoever it is, whether to list someone as a criminal organization.

In other words, the Hells Angels is an easy case, if I can put it that way. My concern is for the cases on the margin.

For some of the police witnesses who testified before you, some of their testimony really concerns me, because they're talking about street gangs, about groups of kids. I'm not saying that they're not engaged in crimes and they're not criminals and not in “gangs”, but to suggest that you could create a list of these gangs without making the net too wide.... You'd end up criminalizing the girlfriends or the mothers who might be wearing their boyfriend's jacket or living in the same house. That's the problem with listing and opening it up.

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

Is it too wide in the ATA context?

[Paul Burstein]

No, because the difference is that you have to think about.... Well, maybe it is and maybe it isn't; I shouldn't throw that away. But it's totally different. That's all I'm saying. I don't know what the word would be, but there's a gangsta culture, and if you ask most teenagers--fortunately, not my daughter--they say they listen to gangsta rap. They like to dress like they're gangstas.

So the concern I have is that you're touching upon something where there is a very thin line between a youth subculture and criminalization. For terrorists, there is no parallel, if you follow what I'm saying. In other words, no one is acting like a terrorist because they think it's cool--unless they're really demented.

Do you understand? I'm not sure if I'm articulating it right, but that's why the parallel or the analogy doesn't work.

[The Chair, Conservative, Ed Fast]

We'll go to Monsieur Ménard for five minutes.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Burstein, I understand some of your concerns. To some extent, you are answering our question when you say that the Crown needed six months in order to demonstrate that individuals had ties to organized crime during the trial you mentioned. The prosecutors came here to tell us the same thing. Law enforcement agencies are concerned about these delays.

The committee could make a proposal. It could suggest, for example, that there be a list of criminal organizations, because I believe that there needs to be a framework. A criminal organization could be put on the list if three different courts have ruled that it is a criminal organization under sections 467.11, 467.12 and 467.13, and the list would be submitted to parliamentarians for their consideration and it could be subject to a review. Would those guidelines reassure you? This would prevent mistakes from occurring if, for example, three young people were found in a park, but did not belong to a criminal organization, and they were eventually taken to court.

I share your opinion: we need to make a distinction between very organized criminal organizations and groups that would not correspond to the definition set out in section 467.1 of the Criminal Code.

Could this not be done by distinguishing between serious and non-serious offences? I would propose, in particular, that a court of justice hand down three decisions, or that a decision be handed down by three different courts of justice. In the case of the Hells Angels, there were four trials. If the Minister of Justice puts together a list, which is then reviewed by parliamentarians, would that not be something that would satisfy you as a lawyer?

[Paul Burstein]

It may satisfy me, but it's not going to stop the individually accused Hells Angels member from delaying the trial process by challenging the listing process you've created. That challenge wouldn't be open to him or her if you just left it alone or created that kind of evidentiary presumption--some kind of certificate process.

In other words, it's a collateral challenge that will delay the real issue, which isn't whether or not the Hells Angels is a criminal organization. The real issue is whether or not these alleged Hells Angels members are part of a criminal organization and should be sent to jail for a longer period of time because of being in a criminal organization. You would be allowing defence obfuscation. I don't want to suggest I haven't made a living from that in the past, but I'm trying to tell you here as a witness--being more neutral minded--that you don't need it.

I just want to say one thing. I'm sorry, but to the extent that all of you are saying that the prosecutors are saying it's necessary, if you look at Mr. Bartlett's testimony on May 12, he told you: “On the views of the prosecutors, we have discussed the issue of the evidentiary burden with various”--

[Réal Ménard, Bloc, Hochelaga, QC]

You should read Randall Richmond's testimony. You cannot limit yourself to testimony that supports your opinion.

We should not forget that, in 1997, when the government adopted anti-gang legislation, many constitutionalists said that it was illegal. Today, anti-gang legislation is part of the Canadian legal framework, and this has allowed us to put an end to biker gang wars in Montreal.

Your testimony is interesting, but I think there is a way to achieve consensus. I think that you are underestimating the objective in wanting to declare various organizations as criminal. I am not criticizing you for having earned your living from these trials. You are certainly a formidable lawyer, but we are parliamentarians and we need to find a way to ensure public safety, given the real threat that criminal organizations pose.

I would like to convince you of this before you leave.