Backgrounder

HIGHLIGHTS OF THE ORGANIZED CRIME BILL

Canadians are concerned about the presence of organized crime in their communities and believe that governments should be doing more to address this growing and pervasive threat to public safety. The Government of Canada is responding by introducing aggressive and broadly-based changes to the law that will strengthen the ability of law enforcement officers and prosecutors to fight organized crime.

Proposed amendments to the Criminal Code will:

• introduce three new offences and tough sentences that target various degrees of involvement with criminal organizations;
• improve the protection of people who play a role in the justice system from intimidation against them and their families;
• simplify the current definition of "criminal organization" in the Criminal Code;
• broaden powers of law enforcement to forfeit the proceeds of crime and, in particular, the profits of criminal organizations and to seize property that was used in a crime; and
• establish an accountable process to protect law enforcement officers from criminal liability when they commit what would otherwise be considered illegal actions while investigating and infiltrating criminal organizations.

Additionally, the Minister of Justice and the Solicitor General of Canada announced funding of $200 million over the next five years to implement legislation and related prosecution and law enforcement strategies. The new Intensive Federal Prosecution Strategy against Organized Crime and the continuation of the Integrated Proceeds of Crime initiative are two important components in the federal government's strategy to fight organized crime.

This funding will build on the $584 million that the RCMP received in the 2000 budget for organized crime enforcement, improved National Police Services and new communications systems.

Making participation in a criminal organization an offence

By making participation in a criminal organization a criminal offence, the proposed legislative amendments represent an effective and legally sound approach to the issue of membership in organized crime. The provisions could target anyone (not just members) who knowingly became involved in activities that further the organization's criminal objectives.

The proposed new offences would target anyone who:

• participates in or contributes to activities that help a criminal organization achieve its criminal objectives. This offence could include, for example, people who recruit others to join a criminal organization or who facilitate illegal transactions of a criminal organization. The maximum penalty for this offence would be five years;
• is involved in committing indictable offences for the benefit of criminal organizations. The maximum penalty for this offence would be 14 years; and
• is a leader of a criminal organization. These persons will include anyone within the criminal organization who instructs another person to become involved in a criminal offence. This offence would carry a maximum penalty of life imprisonment.

Sentences for these offences would be served consecutively, not concurrently. Unlike other types of penalty provisions that require offenders to serve only a third of their sentence before becoming eligible to apply for parole, offenders convicted of criminal organization offences would have to serve at least half of their term before they are eligible to apply for parole, unless the court directed otherwise.

Protecting people in the criminal justice system from intimidation

Intimidation takes on many forms. It can be subtle or explicit, for example, a death threat made in court against prosecutors and their families.

Under the new provisions, it will be an offence to use violence to intimidate people involved in the justice system or a member of their family with the intention of impeding the administration of justice. Justice participants include witnesses, jurors, police, prosecutors, prison guards, judges, members of Parliament and Senators. The offence of intimidation of a justice system participant would be punishable by up to 14 years imprisonment.

The legislation will also contain provisions to protect the privacy of jurors. Additionally, the killing of any justice system participant in the course of intimidating or attempting to intimidate that person would be first-degree murder and would carry an automatic sentence of life imprisonment with no parole for 25 years. These amendments implement the two recommendations made by the Sub-Committee on Organized Crime that specifically address intimidation of participants in the justice system.

Simplifying the definition of "criminal organization"

The proposed new definition of "criminal organization" responds to concerns expressed by police and prosecutors that the current definition is too complex and too narrow in scope. As well as simplifying the definition of criminal organization, the amended provision will give police and prosecutors the flexibility they need to go after more criminal organizations and those who choose to get involved in their activities. The amended definition would:

• reduce the number of people required to constitute a criminal organization from five to three. This brings Canadian legislation into line with legislation used in other countries;
• no longer require prosecutors to show that members of the criminal organization were involved in committing a series of crimes for the criminal organization in the last five years. Instead, prosecutors will be able to focus on the evidence relevant to the crimes that are on trial; and
• broaden the scope of the offences which define a criminal organization (currently limited to indictable offences punishable by five or more years) to all serious crimes, including "signature" crimes such as prostitution and gambling.

Seizure, freezing and confiscation of the proceeds of crime

Current laws allow for the seizure, freezing and confiscation of proceeds of about 40 types of crimes defined as "enterprise crimes", for example, firearms trafficking, stock market fraud and arson. The amendments propose to expand the proceeds of crime provisions so that they apply to most indictable offences.

Another set of amendments would allow Canadian authorities to enforce foreign criminal confiscation orders involving proceeds of crime. Such an approach is proposed in international agreements such as the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the Council of Europe's Convention on Laundering, Search, Seizure and Confiscation of Proceeds of Crime and the recommendations of the Financial Action Task Force on Money Laundering. Innocent third party interests would be protected.

Currently, the law provides for the forfeiture of property only if it was especially built or modified in order to carry out the crime. Under the proposed amendments, forfeiture of offence-related property would, for the first time, apply to all property (e.g., houses or other real estate, vehicles or equipment) that was used in committing the crime. To ensure that the provisions are applied fairly, the law requires that a test be applied so that the punishment of forfeiture would not be disproportionate to the seriousness of the crime.

Protecting law enforcement officers

Police officers investigating crimes such as people-smuggling, smuggling of contraband such as liquor, tobacco and firearms, hate crimes, international terrorism and environmental crimes must use a variety of techniques, including, on occasion, committing offences to infiltrate, destabilize and bring down these operations.

In April 1999, the Supreme Court of Canada decision in R. v Campbell and Shirose declared that police were not immune from criminal liability for criminal activities committed in the course of an investigation. The Court also noted that it was for Parliament to determine if police should benefit from some kind of public interest immunity and, if so, to set out laws that clearly showed the circumstances in which police would be protected from criminal liability.

The provisions in today's legislative proposals are the result of extensive consultations with provinces, territories and representatives from the law enforcement and legal communities. The provisions:

• do not give "blanket" immunity to police for any criminal conduct;
• clearly set out the actions for which immunity would not be granted. There would be no immunity for intentionally or recklessly causing death or bodily harm, sexual offences or deliberately obstructing the course of justice; and
• establish an accountability process that will require, among other things, that the Solicitor General of Canada, provincial ministers responsible for policing, and federal ministers responsible for the enforcement of other federal statutes release an annual report that will account how often officers under their authority engaged in acts such as the destruction of property.

Non-legislative measures

The Government of Canada will mount a new Intensive Federal Prosecution Strategy against Organized Crime that will ensure increased co-ordination between investigators and prosecutors and more effective investigations and prosecutions. This strategy recognizes the increasingly complex legal environment in which investigations of criminal organizations take place. These prosecutions are often characterized by large numbers of accused, voluminous evidence and challenging legal issues.

The intensive prosecution strategy will feature dedicated anti-organized crime Justice prosecutors working in integrated enforcement teams with law enforcement officers to provide prompt and expert legal advice to investigators during their investigations. Specialized federal Justice disclosure units will manage the large amount of evidence that must be disclosed in order to ensure fair trials, but which first must be carefully reviewed to protect informant sources and confidential investigative techniques.

A key component of the new prosecution strategy is the creation of teams of seasoned and experienced prosecutors who will handle these complex cases at trial. These specialized prosecutors will be able to respond to organized crime prosecutions involving federal offences such as drug trafficking and smuggling of human beings.

Funding will also be invested in sophisticated and multi-disciplinary enforcement action at the Canada-United States border and elsewhere, improving the RCMP intelligence gathering capacity, and enhancing technology and infrastructure to support complex investigations.

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Department of Justice
April 5, 2001