Department of Justice

BACKGROUNDER

New Criminal Anti-Gang Measures

Criminal gang activity is increasing in Canada. In many communities, it now represents a threat to public safety. The federal government has proposed a tough package of anti-gang measures that target criminal gang activities. The package gives police and the courts the tools to crack down on gangs, particularly gang leadership, and put them out of business. It is an approach that will be effective and less open to legal challenges.

The package is the government’s first step in developing an integrated plan to combat criminal gang activity that involves police, other enforcement agencies, and all levels of government. It is the result of extensive consultations across Canada, including municipal officials and police across Quebec and in other areas where gang activity is affecting public safety. It also builds on a number of other legislative changes made by the government through Bills C-8 and C-17, which also made improvements to the tools available to police to investigate serious crime.

"Participation in a Criminal Organization" Offence

The cornerstone of the package is the creation of a new offence of "participation in a criminal organization".

A person would be guilty of an indictable offence if he or she participates in or substantially contributes to the activities of a criminal organization, knowing that any or all of the members of the organization engage in or have engaged in a series of indictable offences within the proceeding five years and if that person is a party to the commission of an indictable offence for the benefit of, at the direction of, or in association with the criminal organization. This offence is punishable up to a maximum of 14 years in prison.

This new offence would not be a "membership" offence. It creates an offence for gang members who commit crimes for the benefit of a criminal organization, and would also give police more access to powerful investigative tools. The package also includes a new definition of the following terms in the Criminal Code:

• "criminal organization" means any group, association or other body consisting of five or more persons, whether formally or informally organized, having as one of its primary activities the commission of an indictable offence under the Criminal Code or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more and any or all of the members of which engage in or have, within the preceding five years, engaged in the commission of a series of such offences;
  
  
• "criminal organization offence" includes the offence of participation in a criminal organization or an indictable offence under the Criminal Code or any other Act of Parliament committed for the benefit of, at the direction of or in association with a criminal organization for which the maximum punishment is imprisonment for five years or more.

Together, these new definitions permit the targeted use of new investigative tools and Criminal Code provisions. These include:

Explosives offences

• It would be an offence to possess explosives for the benefit of, at the direction of, or in association with a criminal organization. The new maximum sentence of 14 years for this offence would be higher than for illegal possession of explosives not related to criminal organizations. The sentence for this offence would be consecutive to other sentences.
  
  
• The proposals would make it first degree murder to use explosives to commit murder when this is done for the benefit of, at the direction of, or in association with a criminal organization.

Peace bonds

Key to the government’s approach to organized gangs are proposals aimed at their leadership. These individuals are often able to shield themselves from investigation and prosecution. To address this, the proposals would allow a judge, upon the application of an Attorney General and where there are reasonable grounds to fear that the person will commit a criminal organization offence, to impose an order to keep the peace on a member of a criminal organization. The judge could place strict conditions on the order, including prohibiting the person from associating with other gang members. If the order is breached, the person would be committing an offence and could be sent to jail. This proposal would hit gangs where it hurts the most, by making it difficult for the leaders and their memberships to conduct their criminal activities.

Electronic surveillance

The proposals would make it easier for the police to use electronic surveillance against gangs. A judge would still have to approve the use of electronic surveillance, to ensure that these increased powers are used appropriately by police. This includes eliminating the need for police to demonstrate that electronic surveillance is a "last resort" in their investigation of gangs and extending the period of validity of a wiretap authorization from the present sixty days to up to one year when police are investigating a criminal organization offence.

Proceeds and tools of crime

One of the best ways to target gangs is to take away the profits they make from their crimes as well as the things they use to commit crimes. Proceeds of crime legislation would be expanded to allow seizure and forfeiture of proceeds in relation to all criminal organization offence would also be subject to forfeiture. Even real property built or significantly modified for the purpose of facilitating the commission of a criminal organization offence could be made the subject of forfeiture. With a judicial order, police would also be able to access income tax information related to the offence of participation in a criminal organization.

Bail

Bail provisions would be changed so that a person charged with a criminal organization offence would be subject to pre-trial detention unless he or she could show why detention is not justified. Ordinarily, the onus is on the Crown to show why a person should be detained.

Sentencing

The sentences criminal gang members receive should reflect the fact that criminal gang activity is very serious and causes harm not only to the victim but to society as a whole. Sentencing provisions of the Criminal Code would be amended so that evidence that an offence was committed for the benefit of, at the direction of, or in association with a criminal organization becomes an aggravating factor that must be considered by the judge in sentencing. The judge would also have the power to delay parole eligibility for criminal organization offences.

National and Regional Coordinating Committees

The Department of the Solicitor General is now establishing a national and five regional coordinating committees on organized crime (in the Maritimes, Newfoundland, Quebec, Ontario, the Prairies/NWT, and British Columbia\Yukon) to address police and provincial concerns about the need for strengthened coordination in enforcement efforts against organized criminals, including biker and other gangs. The complexity and multi-jurisdictional nature of the organized crime problem makes the need for such coordination clear. The National and Regional Committees will be consultative bodies that will focus on the facilitation of integrated enforcement action by concerned agencies. The creation of the committees was one of the key recommendations made to the government at the National Forum on Organized Crime.

Annual Statement

Under the proposals, the Solicitor General of Canada will make an annual statement to the House of Commons on organized crime, beginning in late 1997. This responds to a recommendation of the Canadian Association of Chiefs of Police.

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Department of Justice Canada

Solicitor General Canada

April, 1997

Criminalizing Membership in a Gang

The Government of Canada has examined a proposal made by the Government of Quebec to attack criminal gangs by making membership in a criminal organization a Criminal Code offence. The federal government examined this proposal, and has concluded that it would not be an effective solution because of the legal and practical difficulties raised by the proposal.

A number of constitutional experts both within and outside government have agreed that, in the Canadian context, creating a "membership" offence is not an appropriate solution to criminal gang activity because it would not withstand legal challenges on constitutional grounds. Potential problems include the following:

Under s. 7 of the Charter, a law criminalizing mere membership could be challenged as being too vague or too far-reaching in its application.

In addition, under such a law, a person would be guilty of an offence simply because of his or her status rather than because of something he or she has done. This would impose on that person responsibility for crimes committed by others.

A law that prohibits membership in an organization could also infringe on the s. 2(d) Charter right of freedom of association. Although s. 2(d) does not guarantee the right to associate for a criminal purpose, members in criminal organizations could easily avoid liability by involving the organization in worthwhile non-criminal activity.

While the legal solutions adopted by other jurisdictions are not necessarily the right ones for Canada, it is noteworthy that none of the American states facing similar or more advanced problems associated with gangs has resolved them by outlawing mere membership.

Given these important concerns, the federal government believes that the more responsible and effective approach is to provide law enforcement officials with tools to prevent and deter criminal activity by organized criminal gangs and their members, and to investigate, prosecute and forfeit the proceeds of such criminal activity.

Department of Justice
April, 1997

Other Recent Initiatives To Limit Gang Activity

The Government of Canada has recognized organized crime as a serious problem for a number of years and has brought together municipal, provincial and federal leaders to devise new ways of dealing with it. There are measures in two federal bills adopted by the House of Commons, C-8 and C-17, that give the police new powers to deal with gang members who commit offences and the kinds of crime committed by gangs.

Bill C-8 allows the police to seize and seek the forfeiture of property used or intended to be used to commit a drug offence.

If real property has been built or significantly modified to facilitate the commmission of drug offences, it may also be subject to restraint and forfeiture. Fortified drug houses, for example, could be subject to seizure and forfeiture.

The Bill and its regulations provide police with the statutory authority to use specialized investigative techniques such as reverse stings and controlled delivery operations without themselves incurring any criminal liability.

Bill C-8 will come into force in early May.

C-17 brings forward more than 140 amendments to modernize and streamline Canada's justice system. C-17 amends eleven acts but most amendments are to the Criminal Code. The overall effect of these amendments will be to render the administration of justice more effective in the enforcement of the law against gang and other criminal activity. For instance:

One of the best ways of dealing with organized crime is reducing the profits made from criminal activity. C-17 will help to do this by improving the current proceeds of crime scheme: several amendments will allow the police to use "storefront money-laundering" operations; others will make it easier to forfeit proceeds that are spread out over several jurisdictions.

Clear search and seizure authority is needed for effective investigations. C-17 will codify the authority to seize evidence in emergency situations or in plain view. It will also be possible to get more warrants by telephone or by fax.

Police will be able to require people who have been arrested to surrender firearms and refrain from the use of alcohol and drugs as conditions of pre-trial release where this is appropriate.

Several amendments improve the ability of police to cope with emerging types of crime sometimes pursued by criminal organizations, such as computer crime and credit card fraud.

C-17 also increases the number of offences for which electronic surveillance can be used, focusing particularly on emerging types of crime like computer crime, crimes related to theft of telephone services and credit card fraud.

Department of Justice
Solicitor General Canada
April, 1997

National Forum on Organized Crime

The federal government identified organized crime as an emerging and important problem several years ago as a result of ongoing consultations with the policing community in Canada.

In February, 1996, federal officials met with representatives of the Canadian Association of Chiefs of Police to discuss the issue of organized crime. From that initial meeting, the agenda for a National Forum on Organized Crime was developed.

The Forum, sponsored by the Solicitor General of Canada and the Minister of Justice, was held in Ottawa on September 27-28, 1996, and brought together police, representatives from provincial and federal governments, the legal community, private industry and academics. The purpose of the Forum was to examine the increasingly complex problem of organized crime in Canada, and to recommend integrated, effective measures to address it.

Recommendations made by Forum participants to the government included:

• legislative changes to allow police greater access to income tax information for major criminal investigations;
• expanding the scope of enterprise crimes so that police can target more forms of criminal profiteering;
• establishing national and regional coordinating committees to support multi-agency law enforcement operations; and
• legislative changes that would improve the ability of police to obtain evidence in relation to criminal organizations.

Forum participants examined the feasibility of legislation that would make membership in a criminal organization an offence, and concluded this was not a workable option in the Canadian context. They agreed a more useful objective would be to help police target the heads of criminal groups, who have been traditionally able to shield themselves from prosecution.

The Forum was an important step in developing an approach to organized crime that involves all law enforcement and government partners. The proposals introduced today by the Minister of Justice and the Solicitor General of Canada build upon the work of the Forum to find effective solutions to the problem of organized crime in Canada.

Department of Justice
Solicitor General Canada
April, 1997