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Criminal - "Criminal Organization" [CCC 467.1]. R. v. Abdullahi
In R. v. Abdullahi (SCC, 2023) the Supreme Court of Canada considers the meaning and function of a "criminal organization" [under CCC 467.1]:[12] In order to obtain a conviction on the count of participation in the activities of a criminal organization, the Crown first had to prove that a “criminal organization” existed. Section 467.1(1) of the Criminal Code defines a “criminal organization” as follows: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. ...
....
[74] In order to obtain a conviction for a criminal organization offence, the Crown must first prove the existence of a criminal organization (see Venneri, at para. 25). This is common to all criminal organization offences. Sections 467.11 to 467.13 of the Criminal Code set out four substantive offences targeting escalating degrees of involvement with a criminal organization. In addition to these offences, pursuant to s. 2, any other serious offence committed for the benefit of, at the direction of, or in association with a criminal organization is also considered a “criminal organization offence”. Other provisions of the Criminal Code distinguish the (ordinary) commission of certain offences from their commission in relation to a criminal organization, e.g., possession of an explosive (s. 82(2)) and various offences involving a firearm (ss. 239(1)(a), 244(2)(a), 244.2(3)(a), 279(1.1)(a), 279.1(2)(a), 344(1)(a) and 346(1.1)(a)).
[75] Understanding the definition of a criminal organization is necessary in order to determine whether the judge’s instruction properly equipped the jury to decide whether the appellant participated in the activities of a criminal organization.
(1) Distinguishing Qualities of a Criminal Organization
[76] Not every group of three or more persons that facilitates or commits a serious offence for a material benefit is a criminal organization. This Court in Venneri interpreted Parliament’s direction in s. 467.1(1) of the Criminal Code that a criminal organization be “organized” in some fashion as requiring the group to have “some form of structure and degree of continuity” before the “exceptional regime” of the organized crime provisions of the Criminal Code is engaged (para. 29).
[77] The appellant says that the trial judge erred by failing to instruct the jury on the requirement for a “criminal organization” to have structure and continuity. In Venneri, this Court took a purposive approach and set out the underlying rationale for the requirement of structure and continuity. It is helpful to review that rationale, which informs what a jury needs to understand in order to be properly equipped to decide whether a criminal organization exists.
[78] The purpose of the Criminal Code’s criminal organization regime is to identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity (Venneri, at para. 40). Structured and continuous criminal entities offer advantages to their members by consolidating and retaining knowledge; sharing customers and resources; developing specializations; dividing labour; fostering trust and loyalty; and developing reputations in the community, including for violence (para. 36). These same advantages enable criminal organizations to elude law enforcement more effectively.
[79] To counteract these advantages, Parliament has enacted not only substantive criminal organization offences but also heightened investigative, procedural and penal consequences where a criminal organization is involved or alleged to be involved in an offence. These include greater police powers for certain authorizations and warrants (ss. 185(1.1), 186(1.1), 186.1, 492.1(6)(a) and (b) and 492.2(5)(a) and (b)) and a reverse onus for bail (s. 515(6)(a)(ii)). At sentencing, involvement in a criminal organization is an aggravating factor (s. 718.2(a)(iv)), conditional sentences are unavailable (s. 742.1(d)), and parole ineligibility can be delayed (s. 743.6(1.1)). Sentences for certain criminal organization offences must be served consecutively to other sentences arising from the same event (s. 467.14). Murder is elevated to first degree murder where the death is caused for the benefit of, at the direction of, or in association with a criminal organization (s. 231(6.1)).
[80] The enhanced threat to society posed by criminal organizations by virtue of their structure and continuity explains why the criminal organization regime is considered exceptional. Groups of individuals acting in concert, where they lack structure and continuity, do not pose the same enhanced threat to society constituted by criminal organizations (Venneri, at paras. 27, 29 and 40). As Fish J. explained in Venneri:Stripped of the features of continuity and structure, “organized crime” simply becomes all serious crime committed by a group of three or more persons for a material benefit. Parliament has already criminalized that activity through the offences of conspiracy, aiding and abetting, and the “common intention” provisions of the Code (see, e.g., ss. 21 and 465(1)). [para. 35] Identifying a group as a criminal organization when it lacks the requisite qualities of structure and continuity “would cast a net broader than that intended by Parliament” and subject the group to the exceptional procedural and substantive consequences of the criminal organization regime (paras. 31 and 35).
[81] The Crown and the majority of the Court of Appeal do not dispute that a criminal organization must have structure and continuity. However, they stress that the definition of a criminal organization must be applied “flexibly” and must not be limited to stereotypical models of organized crime. With respect, the Crown and the majority of the Court of Appeal conflate the legal requirement for a criminal organization to be structured and continuous with the flexibility needed to conduct the factual assessment of the circumstances in each case.
[82] Criminal organizations are opportunistic and adaptive. They vary based on which “business model” proves successful. They can take forms that do not fit stereotypical models of organized crime but nonetheless can pose the type of enhanced threat to society contemplated by Parliament. Thus, the definition of a criminal organization must be applied flexibly (see Venneri, at paras. 28 and 36-41; R. v. Terezakis, 2007 BCCA 384, 223 C.C.C. (3d) 344, at para. 34; Beauchamp, at paras. 145-48).
[83] However, flexibility in the acceptable forms of structure and degree of continuity does not mean that structure and continuity are optional (Venneri, at paras. 27-31). Rather, the group must have structure and continuity to give rise to the sort of enhanced threat to society that Parliament has sought to combat, bearing in mind the differences from other groups of offenders such as conspirators.
(2) Improper Reasoning
[84] I agree with the appellant and the intervener, the Criminal Lawyers’ Association of Ontario, that careful consideration of a group’s structure and continuity is needed to guard against improper reasoning in identifying a criminal organization. This is needed to avoid the risk that police, lawyers, juries, and judges could identify a group as a criminal organization based on shared characteristics such as ethnicity, cultural background, neighbourhood, religion, language, or dialect. While such characteristics may indicate a common social or cultural identity among persons who commit offences, they are irrelevant in identifying the existence of a criminal organization. To view such characteristics as indicative of organized crime is to depart from Parliament’s intention and to do so in a way that undercuts a key goal of Canadian society, cultural diversity.
[85] The flexibility with which the definition of a criminal organization is applied must not become an invitation for irrelevant considerations or improper reasoning. The risk of improper reasoning is especially acute where an accused is a member of a marginalized community, underrepresented among police, lawyers, jurors, or the judiciary, and whose characteristics and practices may well be less familiar and possibly the subject of biases, prejudices, or stereotypes among those tasked with enforcing the law and passing judgment. The courts have recognized the risks of racial bias or stereotypical reasoning, including subconscious biases, in the criminal justice system (see, e.g., R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at paras. 21-22; Barton, at paras. 195-97). Just as the definition of a criminal organization must not be limited to stereotypical models of organized crime, care must also be taken not to identify a criminal organization merely because the group appears to satisfy some stereotypical model. The trier of fact’s focus when tasked with identifying a criminal organization needs at all times to remain fixed on whether the particular group in question possesses the distinguishing qualities of a criminal organization, i.e., structure and continuity.
[86] Trial judges play an important role in combatting biases, prejudices, and stereotypes in the courtroom (Barton, at para. 197). A suitable instruction on the requirements for a criminal organization is part of this. Under the general rules of evidence, courts can exclude evidence that is not relevant to this inquiry or where the prejudicial effect of the evidence would outweigh its probative value. Trial judges should provide a warning to juries of the risks of subconscious bias or improper reasoning where the circumstances warrant such a caution (para. 200).
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