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Canadian Criminal Law/Criminal Organization

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Introduction

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A criminal organization is defined in s. 467.1 of the Criminal Code:

467.1 (1)

...

“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.


– [1]

Proof of Criminal Organization

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Evidence must establish that the group is a criminal organization. It must be established on a case-by-case basis.[1] Proof of direct control of the organization is a high standard.[2]

Factors to consider whether the group is a criminal organization include: [3]

  1. rules between the men,
  2. defined roles and structure,
  3. communication between the participants,
  4. actual or pending material benefit to the parties,
  5. an organizational structure that promotes the commission of offences.

The courts should not be rigid in applying the definition and must use a purposive approach. Criminal organizations have no incentive to have a formal structure and tend to be flexible. However, "some form of structure and degree of continuity are required".[4]

  1. ↑ R v Ciarniello 2006 BCSC 1671
    R v Kirton 2007 MBCA 38
    See also Riley, 2009 CanLII 15450 (ON S.C.)
  2. ↑ R v Giles, 2008 BCSC 367
  3. ↑ R v. Lindsay, 2005 CanLII 24240 (ON SC)
  4. ↑ R. v. Venneri, 2012 SCC 33 (CanLII) at para. 28 to 29

Effect

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Several offences require there is a criminal organization:[1]

  1. Enhancing a criminal organization (s. 467.11)
  2. Committing for the benefit of a criminal organization (s.467.12)[2]
  3. Instruct the commission of an offence for a criminal organization (s.467.13)

Others are modified by the existence of a criminal organization:

  1. Conspiracy (s.465)
  2. Counselling (s.22)
  3. Accessory after the fact (s.23)
  4. Possessing explosives for a criminal organization (s.82(2))
  5. Intimidating the justice system and journalists (s.423.1)

Where an offence is found to be a criminal organization offence (s.2):

  • the penalties will be consecutive (s.467.14)
  • the wiretap powers are expanded[3]
  • there is a reverse onus on bail (s. 515(6)(a)(ii)
  • presumption of 1st degree murder in a murder charge (s.231(6.1))


See Also

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References

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  1. ↑ see s. 2 "criminal organization offences"
  2. ↑ Drecic, 2011 ONCA 118
  3. ↑ longer authorization (s.186.1 and 196), no need for "investigative necessity" (s. 185(1.1) and 186(1.1)
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