Debates of April 21st, 1997

Criminal Code

[Chuck Strahl, Reform, Fraser Valley East, BC]

Mr. Chairman, I agree with the minister that the definition is broad enough to encompass the groups he is targeting like the biker gangs which probably prompted this bill. How will the minister ensure this definition does not include other groups that are formally or informally organized? It is a pretty broad definition. How do we ensure that someone who likes to tip a brown at a biker club is not included with the bikers? He may be guilty by association, which is something I am sure the minister does not want to happen.

[Allan Rock, Liberal, Etobicoke Centre, ON]

Mr. Chairman, this is a definition and does not create an offence. To meet the definition a group would have to be an organization which has as one of its primary activities the commission of an indictable offence punishable by at least five years in prison and whose members, any or all, have within the last five years engaged in the commission of a series of such offences.

We are not talking about benign organizations. In the last few days I have heard the comment that this definition might sweep up well meaning groups like environmental groups or labour protesters who in order to make a point may break the law as an act of civil disobedience.

The section with the definition does not create an offence. It simply defines the term criminal organization. It is a group, one of the primary purposes of which is to commit serious criminal offences and whose members, or some of them, have within the last five years done just that. We are not talking about a sewing club or an environmental group that pickets to protest the government's policies. We are talking about people who are dedicated to crime and who have formed a group for that purpose.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, I would like to know if the definition would include such groups as the FLQ.

[Allan Rock, Liberal, Etobicoke Centre, ON]

Again it is difficult to know what one knows about the FLQ. If the FLQ or any other group meets the definition, it would be included. If there is a group which is dedicated to the commission of serious criminal offences and has as one of its primary purposes to do that and has members who have done that over the last five years, then it would be included in the definition.

Do not forget that the definition does not create an offence; it is simply part of the framework that establishes access by the investigating police to certain techniques that might not otherwise be available. It creates a framework in relation to penalties for those who are convicted of offences that were carried out to benefit, or under the direction of, such organizations.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, what is meant by a primary activity as contained in clause (a): "having as one of its primary activities the commission of an indictable offence"? What is a primary activity? How is it defined? What is meant by that term? It goes on to say: "the commission of an indictable offence". Does that mean that in order to have an organization declared a criminal organization there has to be indictable offences committed and convictions registered?

Perhaps we could deal with this one question at a time. Could the minister tell the committee what he means by primary activity?

We could then go back to the number five, where a criminal organization must constitute at least five people. Why was five chosen? What happens if one of them dies? Is the organization still classified as a criminal organization? If one of them goes to jail, what happens then? Why was the number five picked in this case? Perhaps if the minister could answer that question first, I will follow into clause 1(a) and the other questions.

[Allan Rock, Liberal, Etobicoke Centre, ON]

Those are good questions.

I will deal with the number five first. When we were preparing the legislation, and indeed over the period of time when we were looking at the scourge of organized crime and trying to determine the best course for dealing with it, we looked at statutes in other parts of the world. Some of them were of no help because they were in countries with different constitutional traditions and they had approaches that would clearly not be appropriate for Canada.

In some American jurisdictions, we found some helpful precedents. When it came to defining what a criminal organization or what a criminal gang was, they almost invariably used a number, sometimes three and sometimes five. We inquired into it and concluded that the reason is that you have to start somewhere and pick a number.

At the end of the day there is an element of arbitrariness. It could have been three, it could have been five. At one time I was looking at the prospect of two or more. The concern with two or more is that it could be a husband and wife team who are engaged in a crime spree and might be considered a gang. That was not really intended.

We came to five as a reasonable accommodation in that we wanted to have a sufficient number so that there was a group, not so small that it could be a couple or a couple with a friend, but not so large in number that we were going to end up with groups creating subgroups in order to escape the definition. The number five is intended to reflect our policy objective of capturing linkages among people, more than just a couple of friends, so that there is a

critical mass for a group but not so many that it becomes impractical to enforce.

The second question my friend asked had to do with primary activities. Again we did not define that term. We would be happy with the dictionary definition.

We expect that a court is going to require a prosecuting crown to establish on the evidence that one of the primary activities of a particular group was to engage in serious criminal offences and that is not going to be easy. The crown attorney is going to have to produce evidence of past criminal conduct, statements or circumstances which would lead the court to conclude that in the common sense definition of the term, one of the real reasons for the group, one of its fundamental purposes, one of its chief preoccupations and one of its reasons for being is to commit serious criminal offences.

For example, members of a motorcycle gang might say that their purpose is to ride motorcycles and engage in discussions about the size and performance capabilities of their motorcycles. That is one primary activity. However on the evidence the judge would be invited to conclude that another of their primary activities was the commission of offences because of what they had been doing and what had been brought before the court. In each case it will be for the court to conclude on the evidence on a common sense test that it was one of their primary purposes.

The third question put to me by the hon. member has to do with whether one needs to formally establish a fact of conviction in order to satisfy the constituent elements of the definition, that is to say that in the preceding five years any or all of the members have engaged in the commission of a series of such offences. We used the term commission of offences rather than referring to conviction so that it would not be necessary to file a formal certificate of conviction.

It will be open to the prosecuting crown in each case where an effort is made to come within the definition to prove on evidence that there was the commission of such offences. That will not be easy either. The crown is going to have to establish to the satisfaction of the court, and because it is criminal offences we are talking about, on evidence beyond a reasonable doubt that indeed these people did engage in the commission of such serious offences during the relevant period. It is not an easy definition to meet.

That is why I have a degree of confidence in responding to people who express the concerns: Are you not casting the net too wide? Are you not going to catch up in this well intended legislation those who are not so bad and those who you never intended to catch but who might be committing acts of civil disobedience? I do not think so.

What we are creating here is a significant hurdle for the prosecuting crown in that exceptional case where we are dealing with organized crime and we have to prove on the evidence the elements of primary purpose, the element of numbers-five-and that on the evidence to the criminal standard of proof, they have engaged in the commission of a series of serious criminal offences.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Speaker, the minister has not answered the question about an organization and the consistency of a group of five. What happens if one of the group can no longer be termed within that definition and there are only four? That four then loses that definition. Does this not encourage organized criminals to break down into cells of four, cells of less than five and continue to carry on their nefarious activities?

We are concerned that we have not had witnesses to debate both sides of this issue and exhaust any flaws that they might see within the bill. Would the justice minister give us an example of how a criminal organization would be determined? What is the process? Do we wait until someone is arrested for a criminal offence or convicted of a criminal offence and then build the other four people around that individual? How is that done? Once that organization, whether it is Hell's Angels or some other organization, is deemed to be a criminal organization, is it or any group of five deemed to be a criminal organization forever?

I would like the justice minister to address these very significant aspects of concern. It is from the viewpoint of whether or not this particular definition is enforceable or applicable. It is so nebulous that we may have difficulty ever having the courts determine that an organization is a criminal organization.

[The Chairman]

This is an unusual procedure and the member may wish to look at Standing Orders 100, 101, 102 and 103 which deal with amendments in committee of the whole.

[Allan Rock, Liberal, Etobicoke Centre, ON]

Mr. Chairman, what must be remembered is that the objective is not to deal with groups on the margin who may have three or four people committing crimes. The objective is to get tools into the hands of the police so they can gather evidence in relation to organizations that pose a serious risk to the safety of the community and that are engaged on a systematic basis in the commission of serious offences throughout the country.

The hon. member asked me about groups subdividing into cells of four in order to escape the strict terms of the definition. In my view if any such thing happened, the court could and would simply look beyond the artificial subdivision to the existence of the larger group on the facts and would not permit such a ruse or artifice to interfere with the enforcement of this law.

For example, just because a given biker gang which is internationally known and internationally active creates subgroups of four members each and gives them a different name would not protect them from this law. The court would be able to look at evidence of the reality behind the artifice and would be able to conclude that the group or association was broader than just the four members and would apply the law as such.

Let me get to the hon. member's broader question which has to do with how this law works. This law works in two fundamental ways.

First of all, for the first time it establishes a formal framework which defines organized crime. That framework provides access by the police, if they are investigating such a phenomenon, to investigative tools which would not ordinarily be available: wiretaps with a different standard; extensions of wiretaps which would otherwise not be available; prolonging the period after which notice of a wiretap has to be given, which in other cases would have to be given sooner. Access to income tax information is another investigative technique or tool which would not otherwise be available to the police.

That is the first thing it does. It establishes a new category of organized crime. If the police are investigating it, they can do things they would not be able to do if they were investigating other kinds of crime.

The second thing this legislation does is it establishes different consequences for organized crime as opposed to other kinds of crime. Penalties are more severe. If a person commits the same crime but does it in association with, for the benefit of, or at the direction of organized crime, then the consequences will be more significant than they otherwise would be.

The proceeds of crime legislation will apply to the crime. Beyond that, the court can not only seize the proceeds of the crime, it can also seize the instruments used to commit it. If a truck is used to drive explosives from point A to point B to plant them for the gang, the truck can be seized if the evidence shows it was an instrument used in the commission of the crime.

Those are the two fundamental things in the bill. There are others. The first is that it establishes something called organized crime. For the first time in our Criminal Code it creates that category. It provides for special tools for the police when they investigate this category of crime which is very, very difficult to do. There are also special consequences including harsher penalties and application for the proceeds and instruments to be seized. Those are the two items.

There is another element my friend asked about which I would like to speak to briefly. He asked how we prove it or how it works. For example, if police forces thought they were investigating a gang and wanted to have access to these provisions, and say, for example, they were applying to the electronic surveillance board or wiretap board and wanted to be relieved of the obligation of proving it was a last resort as we proposed they should be able to, they would have to show reasonable grounds to believe that what they were investigating was an organized crime offence, that a criminal organization was involved and that these sections should pertain to that investigation. They would have to do that on proof. They would need to have evidence before the court to satisfy the reasonable grounds test and they would get the warrant under those circumstances.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, if in order to avoid being designated a criminal organization groups did break down into four, the onus of proof would still remain to connect the groups. The onus of proof as contained in this section is still there and is still in force. The onus upon the crown would be just as onerous or difficult.

With respect, my question has not been answered. I do not know what we do when we drop one of the five and it is now four. What happens to that designation?

Perhaps I could ask a straightforward question. How long does the designation of criminal organization rest upon an organization?

[Allan Rock, Liberal, Etobicoke Centre, ON]

Mr. Chairman, I should have said this earlier. I heard my friend last time talk about a declaration in relation to a criminal organization. Although he now uses the word designation, may I say that neither applies.

We are not saying: "Judge, here is the Allan Rock group. Would you please declare it a criminal organization so that from now on any time we are investigating the Allan Rock group we can have access to these tools and penalties". I do not want to hear my friend tender evidence that there is such a group, because I would claim that my privileges were being abused.

[An hon. member]

It is right behind you, Allan.

[Allan Rock, Liberal, Etobicoke Centre, ON]

There is my Allan Rock group. It is not a declaration or a designation. It is a question of fact in each case. If there were only four members the act would not apply. If the group artificially subdivided to make it only four, as I said earlier I think the court would look past that artifice. If there really are only three or four people committing crimes, we have made the choice of five; it would not apply.

It is not as though we will ask the court to declare a certain group criminal and it is criminal for five or ten years thereafter. Every time someone brings an application for a search warrant, every time someone alleges the participation in a criminal organization, it will be necessary to prove afresh that there is a criminal organization involved. That depends on evidence. As a practical matter it may get easier the third, fourth or fifth time because the court will be able to look at evidence amassed on the earlier proceedings. Nonetheless, it will be a question of fact in each case for the court

to be satisfied that we are dealing with a criminal organization. Then the consequences would flow.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, we have not gone further than subsections 1(a) and 1(b). I understand the whole thing is in clause 1, right down to clause 2. We are dealing with not only what we touched upon but the criminal organization offence and the offence related to property.

To what extent has the department gone outside to get advice and consultation regarding the constitutionality of what we have addressed so far, which is the criminal organization in subsections 1(a) and 1(b)?

[Allan Rock, Liberal, Etobicoke Centre, ON]

Mr. Chairman, careful consideration has been given within the department to the constitutionality of the bill and each of its elements. It is difficult to answer about the constitutionality of subsection 1(a) because it is part of the whole.

I am able to tell the hon. member that we looked very carefully at the constitutionality of Bill C-95, those sections which create offences and those sections which modify existing sections of the Criminal Code. We are satisfied it is constitutional as being consistent with the charter. That results from careful assessment of all elements of the bill.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, to what extent were crown prosecutors and defence counsels beyond the justice department consulted as to the viability of the bill in their opinion?

[Allan Rock, Liberal, Etobicoke Centre, ON]

To a considerable extent. The process that resulted in the bill started in February 1996. At that time the solicitor general and I began looking at different available approaches to help the police investigating organized crime.

We conducted a seminar with police forces from across the country in February 1996 and received an extensive factual briefing about the nature and extent of organized crime in Canada, including biker gangs but not just biker gangs.

Through the period last summer and into the fall we in the department looked at possible approaches through legislation. In September of last year we had a national forum on organized crime to which we invited defence counsels, crown prosecutors, criminologists, business people, experts from the RCMP and representatives from other countries. Alan Borovoy was kind enough to come the conference as well.

We canvassed a wide range of people including civil libertarians. We canvassed a wide range of approaches trying to identify just what mischief we were after and how best within the Constitution to tackle it. That in turn gave rise to specific recommendations. Further work was done in the department over the winter.

When the government of the province of Quebec asked us in March for legislation to help with the biker gang problem in Quebec, that request accelerated work already under way. Indeed it had been under way for some extended period.

Since March we have had further discussions with representatives of various viewpoints in the criminal justice system. We took the concepts in Bill C-95, sat down and discussed approaches with defence lawyers, crown prosecutors, police officers, police chiefs, provincial attorneys general, provincial solicitors general and ministers of public security.

We were alerted to some concerns. We went to the Canadian Bar Association and to le Barreau du Québec. Sometimes we made changes or adjustments in the legislation because of what we were hearing. All the while we were conducting our own assessment of its constitutionality.

Is it possible to have further study? Of course. It is always possible to have further study. We do not have a monopoly on wisdom or on knowledge. I am sure the hon. member will bring to our attention today some useful insights with respect to the bill.

I assure the hon. member and committee of the whole that we have done a pretty thorough job in going to stakeholders in the criminal justice system to look at the bill through their eyes to anticipate objections and concerns that might be expressed. We have made changes to adjust to their concerns in some cases. Based on that overall survey we were satisfied it was good policy and good law and therefore we put it before the House.

[Jack Ramsay, Reform, Crowfoot, AB]

I am looking for information concerning any objection or concern raised about either the constitutionality of the sections we have dealt with or the enforceability of them. I am primarily concerned about both issues, but enforceability is very important to me.

Bill C-27 deals with child sex tours. Renowned legal minds tell us that although it looks good and it sounds good it is practically unenforceable.

What objections, if any, did the justice minister receive with regard to concern over the constitutionality and the enforceability of what we have covered so far?

[Allan Rock, Liberal, Etobicoke Centre, ON]

Mr. Chairman, I do not know that concerns were exactly expressed about the sections we have looked at so far. Certainly concerns were expressed about the overall bill. It is not hard to find those.

Alan Borovoy, for whose views I have the highest regard, expressed concern about whether the bill is over broad, whether the definitions of criminal organization are too sweeping so that we will catch in our net those who should not be there and do not

deserve to be called a criminal organization. I have answered that to some extent in my answers to the hon. member's questions. By the way, we took respectfully into account the views of Alan Borovoy and others who were concerned about over breadth.

For example, in one of the many drafts we added five-year minimum penalties for the indictable offences included in the definition of a criminal organization. We are elevating the seriousness of the crime, a series of which they have engaged in, by stipulating it is only crimes punishable by the maximum five years in prison that will qualify for the definition. We are getting past the trivial to the more serious kinds of crimes.

Speaking more directly to the hon. member's question about enforceability and whether it will be of practical benefit, police forces were very directly involved in the process I have described since February 1996. The Canadian Association of Chiefs of Police gave us its written proposal on what it thinks we ought to do about organized crime in Canada. We looked at it carefully. We concluded that at least in its present form it is not constitutionally valid, and we told the association that. We said we would keep working on it and that we regard Bill C-95 as the beginning of a process, not the end.

We will keep working on it. We also told police forces what we thought we could do in the short term based on the research done over the last several years, especially in the last 18-month effort. We sat down with them with these proposals. Last week the House could see for itself the degree and nature of support in the police community. It was very strong. Chiefs of police believe they will be able to use these tools.

The vice-president of the National Association of Chiefs of Police, Jacques Duchesneau, is the director of the police services in Montreal. He was closely involved in the development of the proposals. We gave him an outline of the proposals. He responded with his ideas. We had a dialogue. Last week he welcomed them as a very good start in terms of helping police forces with practical tools in their difficult task of tackling organized crime.

If we ask the experts, the actual police chiefs in the field, that is where we get the best evidence on the question of whether the proposals are useful and effective. I am able to report the police community has been strongly supportive of the proposals and believe they will be of value.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, did the police chiefs indicate they would support reducing the number from five to perhaps three?

[Allan Rock, Liberal, Etobicoke Centre, ON]

Mr. Chairman, I do not recall that having been a matter of discussion. We looked at the possibility of three. The California statute refers to three. If the hon. member feels strongly about it I would be happy to have his views.

It will not make or break the bill. If the hon. member thinks it would be an advantage to say three, I find it difficult to argue strongly against him. Picking the larger number of five signals to my mind more clearly what we are after, the larger group starting to become a network. If the hon. member has strong views about it I would be happy to hear him and his rationale.

[The Chairman]

Does the member wish to make an amendment?

[Jack Ramsay, Reform, Crowfoot, AB]

Not unless it will be supported by the government. I would be prepared if there were support. We do not have the testimony of the witnesses. We can only go on what the minister is able to recall in terms of consultation.

I am concerned about the enforceability of the section. If it would make it more practical in terms of enforcement to reduce the number to three, I would be prepared to make the amendment.

[The Chairman]

The member is asking the minister if the government would support the amendment.

[Allan Rock, Liberal, Etobicoke Centre, ON]

Mr. Chairman, yes. To the extent there has been public comment on these proposals, my impression is that some have been saying it should be more than five, not fewer than five. There may be witnesses before the other place when the bill gets there who will say that we should be increasing the number and not decreasing it.

At least for the moment I would like to reserve our position. Perhaps we can come back to this issue after we have had a longer time to think about it and I have a chance to speak to my officials about it.