Mr. Speaker, I am delighted to participate in the debate today on Bill C-203, introduced by the hon. member for Hochelaga-Maisonneuve.
The bill proposes amendments to the Criminal Code in an effort to deal with criminal organizations. More specifically, the bill would create a new part in the code. A new offence of living in whole or in part off the proceeds of crime from a criminal organization would be established. This offence would be punishable by up to 10 years imprisonment. The bill would also establish two presumptions in respect of persons who could be members of a criminal organization.
The bill borrows extensively from the provisions of part XXII.2 the Criminal Code which deals with the proceeds of crime and modifies them for application to property from criminal organizations.
The bill would also impose on the courts an obligation to order that a person convicted of an offence serve three quarters of any term of imprisonment handed down in respect of this conviction.
The bill recognizes there may be significant charter problems with some of its provisions, specifically subsection 33(1) of the Canadian Charter of Rights and Freedoms, and states the provisions of the bill operate notwithstanding certain rights and freedoms guaranteed under the charter.
The problems of organized crime are difficult and complex. It has been suggested by some that our Criminal Code does not provide law enforcement agencies the tools needed to fight organized crime. According to some, our relative lack of successful investigations and prosecutions of organized crime figures is considered to be evidence that our laws are insufficient. It follows according to that logic that our laws must be changed. Given the breadth of some of the proposed solutions, it is incumbent on those who advance these proposals to satisfy a number of concerns.
I will take the next few minutes to review and comment on the manner in which this question was approached in the United States and more specifically deal with an American statute which is frequently mentioned as a possible model for Canada. I refer of course to the racketeer influenced and corrupt organizations law, or the RICO law as it is called.
The racketeer influenced and corrupt organizations provisions of the Organized Crime Control Act of 1970 represent the attempt of the United States Congress to control the growth of organized crime in America.
In response to the report of the President's commission on law enforcement and the administration of justice, the Katzenbach commission, Congress adopted what became title IX of the Organized Crime Control Act of 1970. In passing the RICO statute Congress put in place the statutory machinery it hoped would expel the cancer of organized crime from American society. In doing so, Congress focused on the criminal infiltration of legitimate enterprises relying on the existing legal apparati to respond to other criminal issues such as gambling and prostitution. To excise the cancer of enterprise infiltration Congress proposed to confront organized crime by direct attack, by forcible removal and by prevention of return.
The essential drafting difficulty was finding a constitutional method of defining organized crime. A deliberate choice was made not to explicitly outlaw membership in organized criminal groups such as the Mafia because of the recognized constitutional concerns of making status, that is, membership in an organization, a crime, and of defining what constituted an organized criminal syndicate. Rather, in an attempt to ensure the constitutionality of the statute, Congress made its central proscription the use of a pattern of racketeering activities in connection with an enterprise.
Unable to define what were organized criminal syndicates and then outlaw membership in them, Congress turned to an operational definition of organized crime and tried to get at the criminal organization through its activity. Thus RICO pursues a broadly
defined category of criminal activity, not the mere membership in an organization that can only be broadly defined if the definition is to be in any way helpful. RICO prohibits activities not membership.
Early versions of the statute applied to anyone who invested deliberately unreported income, regardless of the source of the income or the criminal status of the investor. As finally enacted however RICO is not limited to any statutorily defined member of the Mafia. At that time the novelty of RICO was not the criminal fine or the imprisonment provision but the section providing for criminal forfeiture to the United States government any illicit interest in or profit gained from a criminally infiltrated enterprise.
The stated purpose of the Organized Crime Control Act of 1970 under which RICO is subsumed is to seek the eradication of organized crime by establishing new penal prohibitions and by providing enhanced sanctions and new remedies. To implement this general purpose, Congress fashioned an elaborate statutory scheme proscribing a variety of racketeering activities.
The first section of the RICO provisions provides a definition of terms. In particular, the definition of racketeering activity marks a significant departure from typical criminal statutes because it includes activities traditionally considered criminal, such as murder, narcotics dealing and gambling, as well as acts such as extortion, mail and wire fraud and securities fraud. Any of the offences listed in this definition may serve as predicate acts to a criminal RICO charge.
In a similarly broad manner, a pattern of racketeering activity is defined as at least two acts of racketeering activity, the last of which occurred within 10 years, excluding any period of imprisonment after the commission of a prior act of racketeering activity.
The second section of RICO lists the crimes which result from engaging in a pattern of racketeering activity. Section 1962(a) outlaws the acquisition of an interest in a legitimate business through the investment of money obtained from racketeering activity. Section 1962(b) prohibits the acquisition of a legitimate business through racketeering acts. Section 1962(c), the most widely used provision, outlaws the operation of an enterprise through the use of racketeering activity. Section 1962(d) prohibits the conspiracy to commit any act in the first three parts of section 1962.
Rico prohibits among other things the installation of an enterprise through a pattern of racketeering activity. These words have made Justice Scalia of the United States Supreme Court state in a 1989 decision:
That the highest court in the land has been unable to derive from this statute anything more than today's meagre guidance bodes ill for the day when a constitutional challenge is presented.
Those familiar with the history of Rico will know that it is aimed at stopping the infiltration of racketeers into legitimate organizations. Canada chose to pass its proceeds of crime legislation to effect the same result, that is, taking the profit out of crime.
Those familiar with its operation will know that the state must prove at least two predicate acts that constitute a pattern of racketeering activity, those predicate acts being for all intents and purposes other codified offences before the remedies provided by Rico can kick in.