Let me just say briefly, in addressing one of your points, sir, that the concerns the police have about disclosure in these mega-trials will in no way, or in a very minor way, be assisted by this list. The disclosure concerns they have in terms of the resources required are still going to be there. Just recently in Toronto, I think it was this weekend, they arrested a hundred people on a street gang prosecution. It's that that causes the disclosure problem. The part of the disclosure dealing with the expert evidence dealing with gangs is a very small piece.
More importantly, as you heard from...I think it was Mr. Bartlett, who is one of the senior Justice officials, all that “expert” evidence dealing with the structure of the gang, etc., will still be germane to a case, irrespective of whether you list a criminal organization, because you still have to prove membership by all the participants. In other words, as you heard Mr. Bartlett say, in most of these cases--and I'm going to tell you in 99.9% of these cases--the evidence the crown will use to establish the “criminal organization” is the same evidence as they're going to lead to establish the individual accused knowing membership in that organization. In other words, it's not going to save anything.
The reason I say it's actually just going to waste time is much for the reason Professor Roach gave: it's just going to open up the door to defence lawyers--I'll say like me, but hopefully not like me--raising collateral issues, chasing down a judicial review of the listing process, when really the issue is whether the people before the court were part of whatever listed organization there is. You had this in Lindsay and Bonner. I just want to say at the outset that I wasn't on the case for the trial; I was there for the constitutional challenge. So when you hear that the case took 8, 9, 10, 11 months, that was through no doing of mine--before you pillory me for that. But I know a lot about it.
In the Lindsay and Bonner case the crown took six months to prove that Hells Angels International was a criminal organization, and the defence never really contested that. It didn't stop the crown from putting on the public spectacle and adducing all the evidence to get that evidence before the court to get the finding. The real issue was whether the chapter or the group that Lindsay and Bonner were part of, the Hells Angels in Woodbridge, were part of that organization that the crown had spent six months to prove. In other words, part of the reason for all the delay and the needless court resources could have easily been avoided if the crown had gone back to what the definition of the offence is.
This is, I guess, where I come to answer your main concern, sir, which is that we're losing sight of what Parliament criminalized. It didn't criminalize gangs, it didn't criminalize outlaw biker gangs; it criminalized criminal organizations with a very simple and, I think everybody contends, a very wide definition: three people engaged for essentially the same purpose for material benefit of the gang where the main purpose is going to be criminal activity. You don't have to prove that they have a name. You don't have to prove that they have membership rituals. But in most of these cases the crown seeks to do it because it helps with the public spectacle. I'm not saying there's not a valid purpose to that. There's no doubt the public feel safer when the police are taking street gangs off the street. But it's not necessary for the trial is all I'm saying.
So when the police say that listing will help with trial efficiency, it's not necessary. That's my point. If you want an answer to whether or not you should criminalize being a member in a gang, that's a separate issue, and I'm happy to address that, but in terms of trial efficiencies it's overkill.