JUST Committee Meeting

     I call the meeting to order. This is meeting 22 of the Standing Committee on Justice and Human Rights. Today is Tuesday, May 12, 2009.

    You have before you the agenda for today. As you will recall, the committee decided to do a study on declaring certain groups to be criminal organizations, as this is certainly an issue that has arisen in our organized crime study.

    We're pleased to have with us four witnesses to help us with our study. First of all, we have William Bartlett, senior counsel, and Paula Clarke, counsel, in the criminal law policy section of the Department of Justice. Thank you for being here.

    We also have Jocelyn Latulippe, chief inspector in the Sûreté du Québec; and also Denis Mainville, commander of the anti-gang section of the City of Montreal Police Service.

    Welcome to all of you. You've been advised that each organization or individual will have 10 minutes to present, at which time we'll open the floor to questions.

    Perhaps, Mr. Bartlett, we could start with you. You have 10 minutes.

    Thank you, Mr. Chairman, and thank you, members of the committee. It's a pleasure to be with you again.

    I'm the team leader for the organized crime team in the criminal law policy section in the Department of Justice, which is, as you know, responsible for amendments to the Criminal Code. With me is Paula Clarke, counsel with the criminal law policy section and a member of the organized crime team.

    The Department of Justice has been studying the problem of the evidentiary burden involved in proving a criminal organization offence from the beginning of the development of the criminal organization provisions, now found principally in sections 467.1 to 467.13 of the Criminal Code, as well as in other parts of the code. That was in 2000.

    It is an extremely difficult issue. We are continuously monitoring the application of the criminal organization provisions, consulting with prosecutors on whether or not the provisions are useful, and collaborating with provincial and territorial officials on emerging organized crime issues, exploring both legislative and non-legislative options to deal with them.

    Most recently we have been studying the idea of approaching one of the evidentiary burdens by listing or scheduling criminal organizations for the purposes of the offences and the other provisions in the code that require the proof of the existence of such an organization. This is one of a number of ideas brought to federal, provincial, and territorial ministers responsible for justice by the Manitoba minister in late 2006. Some of the other ideas brought at the same time have found their way into Bill C-14, which was dealt with very recently by this committee.

    The FPT working group on organized crime is a coordinating committee of senior officials in criminal justice. It has looked very hard at this idea, and some other options, over the course of the last year. We have not yet concluded these discussions, but a number of pros and cons have been identified. I know you've heard about some of the potential advantages of such a process, so I will concentrate on some of the concerns that have been raised about the viability and usefulness of such an approach.

    We are, however, continuing to examine this idea, and I will briefly set out some of the considerations we have examined, and some of the other alternative options we have looked at. The discussions at the CCSO organized crime working group have also been part of a broader examination of the issue by the Department of Justice. We'll discuss some of our consultations with organized crime prosecutors.

    As you heard from Mr. Randall Richmond, a highly respected prosecutor from Quebec, during your examination of Bill C-14, there are certain challenges associated with organized crime prosecutions, one of these being the length of time it can take the prosecution to establish the existence of a criminal organization. It is true that in some cases it has taken a great deal of time to prove this fact beyond a reasonable doubt, although the difficulties and the time involved have varied, depending on such factors as the size and complexity of the criminal organization that is at issue.

    The prosecutor must prove this fact in each and every case, as it is a material element of a criminal organization offence, although the same issue will have been faced in other cases involving the same criminal organization. Even then, however, the evidentiary burden will vary in difficulty. Even when groups such as the Hells Angels are involved, the burden may vary depending on whether the crown is alleging that Hells Angels International is the relevant criminal organization—as was the case with the very difficult and lengthy case of Lindsay and Bonner in Ontario—or a local chapter, an affiliated club, or a group of associated people.

    On the views of the prosecutors, we have discussed the issue of the evidentiary burden with various and many prosecutors. I would say that most of them have expressed concerns about the ultimate usefulness of a listing approach. These include the prosecutors on the CCSO organized crime working group, prosecutors with extensive experience in these matters, including in the challenges of proving criminal organization offences. These have also included the prosecutors consulted when the department held a prosecutors forum in Ottawa in December 2007 to discuss the organized crime provisions and the issue of listing criminal organization groups was discussed.

    All of the prosecutors in attendance were very experienced in dealing with criminal organization defence cases, and the issue of the prosecutorial burden of proving the existence of a criminal organization in all of its forms was discussed in depth. There was consensus that the issue warranted further study, and the CCSO organized crime working group is carrying on that study. These prosecutors in general saw a number of potential problems and were ultimately doubtful that the approach would be beneficial in the end.

    They had a number of important messages for us. The first was that the criminal organization provisions are relatively young. They've only been enforced since early 2002. There was a concern that as a depth of experience with these provisions was still being accumulated, further problems could be posed by changing the rules of the game significantly at this point.

    The second message was that in their view there was simply no easy way to approach the evidentiary burden inherent in an organized crime prosecution. On a possible listing approach, it was felt that such an approach--or any approach that sought to deal with the burden outside the courtroom in which the charge was being heard--would introduce a whole new line of argument and charter challenges. At the end of the day, even if the approach withstood the challenges, it might not make these prosecutions any easier.

    On the third message—this is the good news—they felt that significant progress was being made, and that these prosecutions would become easier and more effective as more experience with them accumulated. They suggested that trying to implement an entirely new approach to the basic evidentiary burden, particularly involving a government designation process taking place outside the courtroom, might only impede that progress at this point.

    There are a number of challenges that a government designation process would face. First, the use of a listing process for the organized crime offence would undoubtedly attract a very high level of charter scrutiny. While it is true that such a process exists for the designation of terrorist groups, it is a rather novel one that has not yet been vetted in a challenge. Proving a material element of a criminal offence by reference to a government designation process raises issues involving some of the basic principles concerning proving a criminal case. While we believe the terrorist group listing process should survive a challenge, it might be wiser to await the result of a challenge in the courts before considering extending a similar process to criminal organizations.

    Second, although criminal organization offences are very serious criminal matters, they are nonetheless distinct from terrorism cases that have a national security dimension as well as a criminal dimension. The challenges to applying such a process to cases other than terrorism matters could be even greater.

    Third, there would be a number of difficulties in showing that the criminal organization in a particular case was identical to a group on the government list. This would even apply when a relatively highly structured group such as Hells Angels was an issue. If you attempted to apply such a process to a much less structured organization such as a street gang, whether the particular group of people that the accused before the court was alleged to have been involved with fell within the designated group could be still be challenged by the defence. Less highly structured groups, particularly street gangs but all sorts of criminal organizations, have varying degrees of structure, identifying characteristics, and organizing principles. The challenges would be varied and much greater in reference to many of them.

    The list could even be a bit of a double-edged sword. It might work only for a relatively few of the over 900 criminal organizations that are believed to be active in Canada, such as some of the more highly structured biker gangs--the Hells Angels group that the motion addresses. The fact that other groups were not on the list could be cited by the defence as a fact, casting doubt on whether there was proof beyond a reasonable doubt that they were indeed criminal organizations.

    Bear in mind that according the Criminal Intelligence Service of Canada, there are over 900 of these groups. The Hells Angels are very visible. Some of the other biker groups are very visible. But criminal organizations vary a great deal, and some of the criminal organizations that are posing the greatest challenges now are the street gangs that have very fluid and unstructured organizations.

    The existence of a listing process might not even significantly reduce the burden on the police to gather evidence of the existence of a criminal organization. Even though a group was a listed entity, law enforcement would still have to collect evidence for a case to be presented in court, as the listing process in its application to a particular case could still be challenged in any case. Should the court find that the listing decision was not sufficient to prove their group was a criminal organization beyond a reasonable doubt in that particular case, the prosecutor would have to be in a position to prove the issue in the normal way.

    It must be said that the concept of a listing approach seems to enjoy much greater support from police than from prosecutors. The prosecutors we have consulted have been of the view that the evidence-gathering approach and burden of the police should remain a rigorous one, regardless of whether or not a listing process exists.

    In any case, these are just some of the concerns that have been raised. It does not mean the issue has been resolved. The CCSO organized crime working group will continue to study the issues and will be reporting to FPT deputy ministers and ministers as soon as the examination is concluded.

    We're also looking at a range of other possible options, such as allowing a judge to take judicial notice of earlier decisions. This approach would have the advantage of taking one judicial decision and applying it in another case, as opposed to a government designation process falling outside of a courtroom entirely.

    Even with that kind of approach, the prosecutors we've talked to still see some challenges. But that's another option we've been looking at, or possibly at legislation that would clarify what sort of evidence could be introduced to prove the existence of a criminal organization. As we go on, we may find more options. The issue of the evidentiary burden is very complex, with a lot of elements, and we will continue to examine it.

    Thank you, Mr. Chair.

    Thank you, Mr. Bartlett.

    We'll move now to Jocelyn Latulippe. You have ten minutes to present.

    Mr. Chair, honourable members of the committee.

    My name is Jocelyn Latulippe and I am the Chief Inspector and Director of Criminal Inquiries with the Sûreté du Québec.

    I am also appearing as a representative of the Canadian Association of Chiefs of Police, and I am the co-chair of the Organized Crime Committee. The Canadian Association of Chiefs of Police represents the managers of law enforcement agencies in Canada. Ninety percent of its members are directors, assistant directors and other superior officers in various Canadian police services at both the municipal and federal levels. Our association's mission is to promote efficient enforcement of Canadian and provincial legislation and regulations, for the protection and security of all Canadians.

    I would first like to say that the members of our committee who are engaged in combating organized crime support the proposal to create a list of criminal organizations or a mechanism to send a clear message to certain organizations, both national and international, that would like to set up shop in Canada. I am gong to start my presentation with the two main reasons why we support this measure, and conclude with a more general observation about its effects.

    First, for police services, the limitation imposed by lengthy, expensive and repetitive court proceedings, in terms of the use of personnel with expertise in combating organized crime, is an issue. Adding organized crime offences to the Criminal Code has been a major step forward in terms of tools for effectively combating organized crime in Canada. This new legislation has also prompted us to intensify our efforts when it comes to criminal investigations, with the aim of eliminating the leaders of major criminal organizations, through a number of projects, since those provisions came into effect. However, the length of investigations has grown, as has the length of trials, but we have met those challenges by going the extra mile, and being more patient, more innovative and more effective.

    However, another effect of this has been to reduce our presence on the ground, in terms of specialized personnel, because of the lengthy court proceedings resulting from these high-level cases. The question then was to try to maintain our operational capacity on the ground in spite of the lengthy disclosure and court proceedings. We have been able to improve disclosure times, with innovations arising from the development of new technologies for compiling evidence. That work is still ongoing. However, our efficiency cannot overcome the length of court proceedings, and at present we have very few possibilities open to us, and proceedings are getting even lengthier with the emergence of new defences that drag out and lengthen criminal proceedings.

    The proposal being considered today, however, would be a major and important step forward, to avoid having to prove the criminal organization all over again at each trial, for the same organization. It would save us weeks or even months of testimony and preparation to prove aspects that have already been accepted in previous court proceedings, and would therefore be an important avenue to enable us to be even more effective in combating organized crime on the ground.

    We have to optimize our time and resources so that we are better able to respond, for example, to the rising phenomena, and I assure you they involve very difficult investigations, of the infiltration of Canada's legal economy by criminal organizations or the rise in the wanton violence committed by some unforeseeable criminal organizations such as street gangs. Experienced personnel are needed, since the criminal organizations have figured out that when police experts are held up in court they will not be working on the ground for many months. The measure being considered today will therefore optimize our efforts.

    The second reason for supporting this proposal is to prevent the success and the intimidation engaged in by criminal organizations because they advertise themselves as criminal groups.

    We think that there is a second major argument in favour of this kind of amendment. Implementing this measure would mean that the effectiveness of criminal organizations, their ability to intimidate and to control crimes, would be significantly reduced, and people in Canada would feel safer. I would offer the example of the biker gang phenomenon—the Hells Angels, who have been in Canada for some years, and notably since 1977—and also point out that at present the Hells Angels have 34 chapters in Canada, in eight provinces, with 479 members, 366 or 79% of whom have criminal records for activities associated with organized crime activities.

    Biker gangs, like some other criminal groups, have long understood that their trademark enabled them to control crime for their own benefit. Is it reasonable for a criminal organization to be able to set itself up in Canada, to be able to advertise itself and promote its violence and reputation for intimidation? Criminal organizations like this know that their trademark can be attacked only by getting at their members, who change as they are promoted and accounts are settled. Our tolerance therefore has an effect on their effectiveness. It feeds their power to intimidate the public as a whole in order to carry on their criminal activities and major takeovers of legal and illegal activities.

    Although the law, paragraph 467.11(3)(a) of the Criminal Code, provides that using a symbol that identifies a criminal organization is a factor that can be used to establish participation in the organization's activities, those members keep doing it. Part of the problem, in our view, arises from the fact that the organization is not criminal by definition in the eyes of the law. The legislative message is therefore ambivalent.

    We believe that while in 2001 Parliament chose, both for organized crime offences and for terrorist activities, not to criminalize the use of the symbols themselves, or mere membership in a terrorist group or criminal organization, declaring that an organization is criminal would help to discourage the wearing of the organization's symbols in situations that are unrelated to freedom of expression.

    We firmly believe that Canada has to send a clear message to criminal organizations that advertise themselves in order to impose control and intimidate: that from now on, there will be an even higher risk because what they do will be evidence against them. There is a difference between engaging in intimidation while flying your colours or the colours of an organization that the law does not regard as criminal in itself and doing it under the emblem of a criminal organization that the law recognizes as criminal. That should bring about a significant change in the pride its members take in advertising themselves, and their power to control.

    We would ask this question: how do we respond when members of a criminal organization advertise themselves in spite of all of the statements by the courts holding that their organization is a criminal organization? Most members of the public will say that they get in another line, or change seats, or move to another lane of traffic, when they see people flying these symbols.

    So what do we do when they look at us, when they make comments or threats, while they are wearing the colours of a criminal organization? We have to put an end to this situation, so that these organizations will then hesitate before advertising themselves as criminals and using their reputation as a tool to instil fear and to succeed. Their symbols affect Canadians, but they also affect the basic mission of police services in Canada: to ensure that the public feels safe, and ultimately to maintain the quality of life in Canada.

    If there were to be such a law, criminal organizations that advertise themselves and intimidate people would find it more difficult to behave like armed criminals right under everyone's noses. It would therefore be more difficult for their members to use their prestige to climb up through the ranks of crime and succeed in controlling the lives of the people around them through their affiliation, which we would be making illegal in Canada.

    In conclusion, legislative advances to deal with organized crime have enabled us to get a better idea of the importance of these groups and a better understanding of their tactics and parallel community structures, which threaten the equilibrium of our society, often simply by their public demonstration of membership in criminal groups. We have also realized that our modern society no longer wants to see these groups advertising themselves as violent criminal organizations risk-free.

    A mechanism of this nature will make it possible for us to organize our work better in order to limit their powers, but may also make us more effective in striking at the heart of these organizations: their prestige, which they use to impose their control and interfere in the freedoms recognized by the various charters.

    Thank you for listening, and I at your disposal for questions.

    Thank you.

    We'll move on to Denis Mainville. You have ten minutes.

    Thank you, Mr. Chair and honourable members of the committee. First, I have decided to go into a little more depth to expand on the presentations that have been made.

    Allow me to introduce myself. My name is Denis Mainville. I have over 26 years' experience in the City of Montreal Police Service, the CMPS. I have over a decade of experience dealing with organized crime, and so I am able to make the connection between the organizations and projects that have recently been carried out and have received publicity. There is the Sûreté du Québec's Operation SharQc, the CMPS's recent Operation AXE, and Operation SATELLITE, which was carried out in the summer of 2008 and affected three leading criminal organizations.

    My presentation will deal with two aspects. First, I will describe the difficulties encountered in investigations of criminal organizations, which have in fact recurred for many years in all of our organized crime operations. Second, I will talk about the specific characteristics and structures of the various criminal groups and the connections that exist, for example the differences between the Hells Angels and street gangs, particularly in downtown Montreal and the northern part of the city.

    Operation ABBA was carried out in 2004-2005 and targeted a street gang in the Montreal North section of the city, commonly called "rue Pelletier". The operation lasted nearly 13 months and involved costs of over $3 million, not counting the sweep, of course. That was the CMPS's first operation, and as a result, 25 people were charged, 10 of them with organized crime offences.

    I am now going to talk to you about the difficulties we face, the same ones as we have had to deal with in operations carried out recently. One of those difficulties relates to the human resources needed, for example for surveillance and wiretapping. Those activities are just a few among others, but they are essential in order to gather evidence. They are very expensive and very labour-intensive. First the organization's criminal activities, such as fraud or drug trafficking, have to be identified. We can't target all crimes at the same time, and we have to choose, because proving them is too tedious and much too onerous to manage for police organizations.

    The criminal activities of each target subject also have to be identified. An investigation into 30, 40 or 60 people is tedious and calls for long hours, and even months or years, of work. The role and status of each of the target subjects has to be proved, and in the case of street gangs, unlike traditional criminals like the Hells Angels and members of Italian organized crime, that is not necessarily easy. We also have to show that they are connected with each other. We have to maintain ongoing surveillance. This is something the court needs.

    We have to seize exhibits—emblems, jewellery, clothing and so on—that could corroborate the evidence that is often required by the court and that is not necessarily established in the case of street gangs. That is the detail it comes down to. Today, it is characteristic of our young people that they follow fashion. Jewellery is not necessarily a sign of membership in an organization like the Hells Angels. It is dangerous for us to say that a criminal group is targeted simply because of its jewellery or its style of clothing. We have to be careful in dealing with this situation when we are talking about street gangs.

    Certainly we have to establish a common connection, as organized crime requires. We have to gather all of the evidence that proves organized crime. We rely on about 40 factors in a police investigation, so it is very tedious to gather the evidence that this is a criminal organization.

    The kind of evidence that has to be gathered poses a danger for the sources, witnesses and civilian undercover operators who are sometimes used. We have to give the evidence again, and these people are known to the criminal world. This becomes tedious.

    The security of our police activities, including installing devices or surreptitious entry, presents another difficulty. We also have to deal with the complexity of communications, for example BlackBerrys and other devices of that nature that we are all familiar with.

    Presenting the evidence to the court involves another difficulty. Every time we have to reconstruct a criminal organization, we have to prepare the profile of all of the target individuals, the leaders, all over again. This is also very tedious for police organizations. It can take several weeks for a simple profile that has to be updated regularly.

    There are two types of evidence that have to be presented, and this is also very specific, for different types of criminal organizations. We can take two approaches to proving the facts: the substantive road and the money road. Often, we take the substantive road to determine the kind of crime in question, whether it is fraud or drug trafficking. The second, parallel road does not involve the same actors, but it calls for a lot more resources and is much more tedious, and so the investigations take several months.

    The time spent on an investigation is limited. We often say that an organized crime investigation can take as long as a year, renewable, of course. That is considered to be a long time, but there again, to us, a year is relatively short when we have to collect all that evidence. We are not able to tackle the other problems that these criminal groups are causing.

    Every time we have to reconstruct a criminal organization, the expert witnesses have to prove their credibility to the court again, and that can take several days, depending on the police organization, and as long as several weeks.

    Mention was made earlier of the length of court proceedings, but there is also the question of the evidence. Increasingly, the electronic evidence that police organizations are looking at is very onerous to manage, and presenting that evidence in court is very tedious.

    I would like to draw a parallel with the following investigations. Recently, Operation AXE targeted three criminal organizations. It had to be proved that each of those organizations was carrying on criminal activities. I am referring, for example, to the Syndicate group, the training school for the Hells Angels and a high-level street gang aspired to by the younger ones in downtown Montreal. The investigation went on for more than two years: 68 people were arrested, and 25 of them were charged with organized crime offences. It is important to note that five of those people who were again charged with organized crime offences were already part of a criminal organization, which in our opinion was the Syndicate.

    I referred earlier to the length of investigations. That investigation called for the interception of 640,000 conversations and 11,000 hours of physical surveillance. As well, the sole purpose of a majority of the time spent on it by human resources was to prove that there was a criminal organization, when previous cases had been prepared, particularly for the Syndicate, in Operation CHARGE, carried out by the Montreal Joint Regional Task Force in 2004. The difficulties encountered are the same as had to be overcome in Operation ABBA. The specific aspect is the multiple branches. There are several criminal groups, and it has to be proved that they are in fact criminal organizations.

    The street gang subjects, members of the Hells Angels training school known as the Syndicate, some of whom were arrested in the JTF's Operation CHARGE in 2004, had gone back to the same criminal activities in Operation AXE, and had reorganized in the same manner, in spite of the fact that the leaders were in prison. So it had changed absolutely nothing. In 2004, those people had the same structure. Once the leaders were incarcerated, they carried on the same kind of activities in prison. Nonetheless, we had to prove to the court again that this was a criminal organization, and that takes a huge amount of time. We also had to reopen the Operation CHARGE file to extract all the evidence that had been gathered, when that evidence itself had been presented, and present that evidence in court again, to establish again that the organization was criminal.

    Operation SATELLITE, which culminated in 2009, targeted a violent street gang in downtown Montreal, where there had been various activities such as attempted murders, murders and intimidation: 48 people were arrested, and 12 of them were charged with organized crime offences.

    The details of Operation SATELLITE were as follows. It involved a traditional street gang, younger and more aggressive and unstable and not very coordinated. As compared to traditional criminal groups like the Hells Angels, which operate according to a well-established hierarchical structure in which everyone has a specific status and role, with all of their activities being for the benefit of the organization, street gangs on the other hand are very unstable, in terms of their structure, and their level of organization varies. Their actions and activities are very unpredictable, and they have little or no vision. However, they have the same objectives as the other organizations: to generate profits for the leader. They idealize the street gangs that move in the upper spheres of activity such as the Syndicate, which represents an ideal for the younger ones. In that case, not all the subjects could be identified within the criminal organization, but the leaders and their key acolytes, who were relatively stable themselves, could.

    In conclusion, the CMPS favours making it possible for certain groups to be recognized as criminal organizations. Increasingly, the criminal groups that are arrested in a sweep reoffend and use increasingly refined methods: proxies, businesses, meeting places, intermediaries and sophisticated communications. They work in cells or companies, depending on the organization.

    This means that the investigation process would be expedited and would call for fewer resources than these kinds of investigations require at present. This would enable us to be more thorough in tackling the illegal activities these groups engage in, such as money laundering. The major impact is undeniably felt on the human, material and especially financial resources that this kind of investigation calls for.

    The energy and time spent on proving all over again that an organization is a criminal organization would be greatly reduced and there would be no harm done to the administration of justice; the opposite would be true.

    Thank you.

     Thank you very much.

    We'll open the floor to questions now.

    Mr. LeBlanc, you have seven minutes.

    Thank you, Mr. Chair.

    I would like to thank the witnesses.

    I am going to start with a question for Mr. Mainville or Mr. Latulippe, and if we have time I would like to close with a question for Mr. Bartlett.

    The police representatives here have expressed very clear feelings about the reasons for having or creating a list of criminal organizations, like the list established in the case of national security, as Mr. Bartlett said. That would greatly facilitate important tasks such as preparing evidence with prosecutors, completing the investigation and bring the case to court.

    My question is for Mr. Mainville or Mr. Latulippe. From the discussions this morning or at other times, I understand that in many cases the police do not have enough resources for these mega-trials, these investigations, that take a long time. The situation varies from province to province, but the common point is that there are never enough police, investigators or prosecutors.

    As a result, other criminal issues may suffer. Do you think that the need relates to investigations, or trials, or both? The investigation ends when the charges are laid. Then comes what Réal Ménard and others have described as mega-trials, with several accused, that take a long time.

    Second, you have a problem with resources because your police and your investigators are assigned to the trial. In what area do you really see a need to reduce the burden?

    The need, at present, is mainly in relation to trials, because when it comes to the investigations themselves, there is in fact a shortage of resources. To do the same organized crime investigation 10 or 20 years ago, the need for personnel has increased considerably. A study done five years ago by a Canadian university said that as compared to 15 years earlier, to took five times more resources to do the same kind of investigation.

    The investigations take a lot of time and a lot of police. That requirement cannot be circumvented, because the criminals are constantly refining their methods in technical terms and refining their tactics. We cannot reduce the number of police. However, if we could keep our police on the ground instead of constantly assigning them to court to prove the same things. That way we could reduce the number in court and simply keep the police on the job in relation to what we will call "the facts"—the recent evidence—and not proving the criminal organization. We could then keep the personnel on the ground and carry out more complex investigations.

    That goes along with how crime has been refined at the global level. The global criminal organizations that set up shop in Canada do us a lot of harm because they have a very high level of sophistication.

    That is a very useful answer. I understand that clearly, but what would you say to the argument... You talked about street gangs, for example. We have heard that there are 900 organizations that may be criminal groups. I have the impression that in terms of sophistication, structure and established membership, it varies widely between a Hells Angels chapter and a street gang made up of a group of young people who engage in criminal conduct.

    Mr. Bartlett spoke a bit about this in his testimony. If we agree to allow the Hells Angels to be put on a list or named as a criminal organization, I have the impression that this is easier to explain than in the case of a little street gang made up of a band of young people who don't have enough to do after school.

    Where do you draw the line between a group that is recognized as being extremely violent and having well established criminal objectives, biker gangs being among the most visible of them, and little groups of young people at the bottom of the ladder, who are in practical terms criminal organizations? Governments or prosecutors will not have a list of all the groups that form in every school. How will you distinguish between them?

    You are entirely correct to raise the question. It is very difficult. We were talking about this earlier in the corridor. In the case of street gangs, the problem is that they have truly unstable structures. This is totally different from the other criminal groups.

    I was telling you earlier that in a group of 30 individuals, three or four members were still there in a relatively stable way over the years. The cell or the various companies that form the base change virtually daily, if not hourly. On the other hand, the leaders climb quietly up the ranks. Of course, these young people get older, and join somewhat more structured criminal groups. These are the individuals we come across a little farther on. They are the ones we are going after in many cases. We also take action in the case of the young people, but much more from a preventive angle than an enforcement angle. These are often youth whose ages range from about 12 or 13 or 14 to 22 or 23 years.

    When it comes to the leaders of the street gangs we are now seeing on the ground in Montreal, these are people of about 30. They are adults and are starting to move into a structure I would describe as somewhat more refined. They look a little more like traditional organized crime. I said earlier that in some operations, some of the individuals convicted of membership in a criminal organization were about 30 years old. In other operations or investigations, should we have to repeat the same procedures in the case of those people? I don't think so. However, for the young people, this is still a problem. We don't deny that. It is difficult to control at present.

    Mr. Chairman, is there any time left?

    You have one minute.

     Mr. Bartlett, you talked about how a court could take judicial notice of a criminal; that was one option that differed from a list. I'm interested in knowing how that would work. I understand you're not advocating that, but if you've thought about that, what would that option look like?

    Judicial notice, as the principle presently stands, involves courts taking notice only of those things that are considered to be so evident in the public domain that they don't have to hear evidence about it.

    The sun rises in the morning, it's dark at midnight.

    Yes.

    The idea is that you would craft some sort of statutory provision that would be a rebuttable presumption, but it would allow a judge to take notice of a finding made by another court. It would be a rebuttable presumption that if the same set of facts appeared to be alleged in the case before that judge, they could take notice, subject to the defence having a right to challenge.

    It's not as clean as a list.

    It's not a simple concept, but it would be a question of one court taking notice of another judicial process, and might address some of the problems that the courts will certainly have with any process where you're seeking to prove an element of the offence by a process that takes place outside any courtroom at all.

    Thank you.

    Monsieur Ménard, you have seven minutes.

    I would first like to make a general comment. I would very much like it if we could take the time to reread and think about the briefs all three of you submitted, which have a lot of information, before writing our report. So would you be so kind as to leave a copy with the clerk so that we can really reread them? There is a lot of information.

    Second, I would very much like it if Mr. Bartlett would submit the documents he referred to for the forum, when the prosecutors met.

    I will never in my life forget the moment when we started to debate the anti-gang legislation. I had met with Allan Rock, then the Minister of Justice. The senior officials in that department were opposed to anti-gang legislation. They said we could win the battle by using the conspiracy provisions.

    Pierre Sangollo of the CMPS was the one who made me see clearly why we had to make new rules in the law. I agree with all of the questions that Mr. Bartlett raised. It would be dangerous, at this point, to stop at this. The issue has to be taken further than this.

    I have often argued for there to be a list like that, based on three criteria. First, there has to have been a judicial finding. A minister who gets up one morning and doesn't like some particular group because he says it is a criminal organization could not make an order in council. There has to be an order in council. Parliamentarians have to study the list and it has to be reviewed regularly. However, I will not get bogged down in technocratic arguments.

    Second, there are some things I would like to understand, and that is why we have to look at your briefs again. The objective here is very simple: we want to avoid having to prove that the organizations that have been found by a court to be criminal are criminal, all over again. In the case of individuals that is understandable. But a list of criminal organizations could never include 900 organizations. Randall Richmond, you will recall, Mr. Chair, told us that there were three criminal organizations in Canada: the Hells Angels, the Rock Machine and the Bandidos. So we are not talking about 900 groups; we are talking about three groups.

    Mr. Mainville, you said that for each trial, for each investigation that involves millions of dollars, the profile of each of the criminals has to be prepared over again. You also talked about two roads: the substantive road and the money road. I would like you to explain that for us.

    I would also like you to talk about the list of 40 criteria you drew on, and maybe even that you submit it. The people in our research service told us about a list that was given by the court in R. v. Carrier. We saw about nine factors, but you are talking about 40. I would like to understand that better.

    I will then come back to Mr. Latulippe.

    First I will explain the principle of the substantive road, and then the money road.

    Each criminal organization has people, actors, who work at committing the targeted crime as such. So there are going to be roles, statuses, for each person, of course. Some of them will commit motor vehicle thefts, others will engage in intimidation, and others will handle the drug trafficking. Each one will have a clearly defined role.

    However, the profits generated by drug trafficking will often involve other people, completely outside this. They are the ones who will control the money, the caches of money, who will buy the drugs and conduct the transactions. Certain connections are made, are established. But I would say that in my experience, the drugs are rarely directly connected with that money.

    That means there are two roads to be proved. They are not the same actors, and that means it has to be proved that the profits generated by the property obtained by crime, or the criminal activities at least, were used throughout, whether the money is seized during the operation or at the end of the investigation. These are the difficulties that are often encountered in organized crime investigations, of course. The specific characteristic of a criminal organization is that the two roads never run parallel in this regard.

    Does that answer your question?

    That is in answer to the first.

    And what about the second question, about the 40...?

    About the 40 factors, specifically in relation to organized crime, emphasis will be placed on the factors to be assembled to prove the case. It can be coded language, items of clothing, effigies, it's all part of the evidence—not part of the investigation—that has to be collected before going to court. Those factors are what make it possible for us to establish that in fact they are found among several individuals and they are peculiar to a targeted criminal group.

    For example, we were talking about the Hells Angels, which are perhaps the easiest to identify with their patches and their symbols. It's the same thing for street gangs: some street gang members who have certain jewellery will be associated with them. But there again, we are careful, because the fashion among young people today means that we find some of these rings in flea markets, unfortunately.

    Perfect, that's clear now. Once again, we have to reread your briefs. The objective is clear.

    Mr. Latulippe, this is the second time you have appeared before this committee and you have clearly said that the next challenge would be to eliminate the infiltration by criminal groups—and not just the Hells Angels—into the legal economy. I would like you to give us a clear picture of the extent of that challenge.

    How will identification as a criminal organization—and I reiterate, we are not going to identify 900 organizations—facilitate your job?

    I will then have a question for Mr. Bartlett.

    We have to remember that, to simplify it, there are two types of organized crime that present a threat to Canadians. There is organized street crime, where the crimes are more violent, more obvious. However, we must not underestimate the one that represents the greater danger, in my opinion, the higher-level crime, organized crime, in particular, at the global level. This involves organizations like the Hells Angels, the Bandidos or other groups, whether it be the Cosa Nostra or global organizations. When they set up shop in Canada, these global organizations look for ways to infiltrate the legal economy to launder money, and make acquisitions. Ultimately, they acquire businesses, so they can launder money on a large scale.

    The Hells Angels are an example. In recent operations, which are in fact under investigation, and in other cases that are currently before the court, we have evidence that these members use their symbol and the fact that their organization is recognized worldwide to intimidate legal businesses when they take over, for instance. In some cases, Hells Angels members introduced themselves to boards of directors simply by letting them know they were members of the Hells Angels, in order to make an acquisition or a business decision.

    As well, Hells Angels members have taken over businesses by paying visits to people having problems, wearing their jacket, their patch, and our investigations clearly show this. We have testimony, we have wiretap evidence, showing takeovers accomplished by using the jackets and colours.

    This factor means that these organizations that are recognized worldwide have much stronger control in Canada.

    Do I have time to ask one last question?

    No.

    Mr. Comartin, you have seven minutes.

    Thank you, Mr. Chair.

    Good morning, Mr. Latulippe, Mr. Mainville.

    I think there is sympathy on the committee for the idea of naming gangs. However, Mr. Bartlett talked about problems. It will be very difficult and maybe impossible. Have your police chiefs' offices done a legal analysis of the problems Mr. Bartlett talked about today?

    We have not done a legal analysis, but you can see that it depends on the procedures, the methods used to combat organized crime, and it isn't the same in all the provinces. The possibilities vary in different people's opinions. We think it can be done in the case of major criminal organizations.

    Mr. Ménard talked about three. In the case of certain other organizations I listed, biker gangs or organized crime with Italian roots, or others, it would be possible to prove the case because a lot of factors, the 42 factors, for example, are found in those organizations.

    We think it is possible to prove it. We would like to stop having to do it over again all the time.

    Do you know of another country that does this? Is there a country that has legislation that facilitates the battle against organized crime in this way?

    I have not researched it in depth, but I have been told that in Italy there are rules like this and the Cosa Nostra is a banned criminal organization.

    Do you think it is possible to get enough evidence to have a court or a judge decide that the Cosa Nostra will be put on a list like that?

    If we rely on the evidence we are currently putting together about the Hells Angels, using the 42 organized crime factors among other things, we think it is.

    There are 900 gangs in Canada. Mr. Ménard mentioned three. How many will be named, a dozen or three dozen?

    It is difficult to determine. If we are talking about street gangs that commit traditional crimes, there are maybe 20 or so. We have to remember that there are also Asian criminal groups, and Middle Eastern, that are emerging now, and that police organizations have not tackled to a large extent, but they are here and we know about them.

    The intelligence services supply information to us about that. These are evolving groups, but for the ones we are most concerned with there are at least 20 or so.

    Obviously the advent of legislation like this would do a lot to redirect our investigation targets, because this kind of measure would mean we could considerably reduce the effectiveness of these groups, which would no longer have the ability to intimidate openly and to advertise themselves. That is a major factor for us. It would also somewhat alter the list of criminal organizations. The small organizations would hesitate before attaching themselves to the higher-up organizations, because they would know they would become targets.

    Mr. Bartlett, on the same question, are there any other countries in the world or jurisdictions—I'm looking in particular for jurisdictions that have a bill of rights or charter somewhat similar to ours—where this has been attempted, even if it's not successful?

    In civil law countries—France, Italy—there has been some use of that kind of approach, although their systems are quite different. I don't know of any common law jurisdiction that has done a listing process. Australia has used a crime commission approach. The crime commission can make certain findings, and there are some consequences that flow from the crime commission's making a finding, although they're not direct criminal matters; they're more things such as control orders and so on that can flow, similar to our section 810.01 process.

    But there's no jurisdiction, I think, with the same sort of constitutional framework or charter quite like ours.

    Nobody that you're aware of is attempting to do it at this point.

    There is none that I'm aware of, other than what Australia is working on, although Australia doesn't have the kind of charter of rights we have. And they're not using it for quite the sort of purpose it would serve here, which is to prove an element of a criminal offence.

    Those are all the questions I have, Mr. Chair. Thank you.

     We'll move on to Mr. Moore, for seven minutes.

    Thank you, Chair, and thank you, witnesses.

    We have heard some of the frustration from past witnesses about the length of time these complex criminal trials take and what is involved in proving a case. We are certainly interested in moving the justice system along in the best way possible.

    But this whole concept raises some questions, and I'm looking for some answers from the panel. Sometimes you'll see—I know I do, back home—a going out of business sale. You'll have “Joe's Furniture Depot 2009 Limited”—

    Mr. Joe Comartin: Hey!

    Mr. Rob Moore: —or “Rob's Furniture Depot 2009 Limited”, we'll say.

    One thing we hear about concerning organized crime is their ability to reinvent themselves and adapt. Is there a concern that, if we had this legislation in place whereby an organization was named, it would do what is just sufficient to reinvent itself and bring itself outside of the law, so that we would be constantly trying to pin down an organization? Is that a valid concern, that the organizations that have shown this ability to adapt would continue to do it, if they found themselves named, with whatever impositions that would bring on them? They have some of the best legal help possible. Is it a concern that they would reinvent themselves to the degree necessary to make that listing not applicable?

    Certainly, as Commander Mainville and Chief Inspector Latulippe have noted, street gangs are very fluid. They change naturally, quite aside from any efforts they might make to avoid the consequences of being on a list. Assuming you could feasibly put them on a list to start with, they would be constantly changing. Names change, personnel change, groups splinter. The “Fresh Off the Boat Gang” spawns the “Fresh Off the Boat Killers” as a rival gang, but the personnel of the gangs.... The names are known to the police, but the personnel are certainly fluid, and they change. That would certainly be a concern, in terms of whether or not the name on the list would clearly designate a group of people at any given point in time.

    In addition to that, the very fluid nature that has been painted would mean that much, if not most, or if not all, in some cases, of the kind of evidence that has been discussed—and we're quite aware of the burden involved in presenting that evidence—would still have to be presented in any particular case to show that in this case the accused committed extortion, say, in connection with a group of people that constituted the organization on the list.

    Commander Mainville talked about updating the leadership and so on. Well, as the leadership changes, there will always be a challenge as to whether or not the group is still the same one as the one that was designated on the list. The connection still has to be shown; that is not avoidable, in that the case still has to be made that the person committed whatever the offence was for the benefit of, at the direction of, or in association with a criminal organization. The starting point is proving that a criminal organization exists, but then the connection has to be shown. The evidence for proving both of those things is very much the same in many, if not most, cases.

    So whether or not it could change itself in order to avoid the name, say, on the list, it would do so anyway just organically, because they're flexible organizations. Beyond that, there would be an issue as to whether or not the particular group in any particular case was whatever name was left on the list.

    Organized crime, by nature, is always going to adapt to new legislative developments and police techniques, but we in the police are also able to adapt and keep on top of it.

    However, I think that this kind of measure would take away high-level organized crime's tool for power, which is the tool that hurts Canadians most, the one by which these people can advertise themselves as members of organized crime or criminal organizations even though they have been recognized as such in numerous judgments, here and elsewhere in the world.

    Canada has to send a clear message that it does not tolerate public advertising, and this will take away organized crime's effectiveness in some areas and put up an additional barrier to achieving its ends. So it hurts them a lot, and for the police, the burden of proof will still be there. For example, the 42 organized crime factors will still be there. But we think that this would be a major step forward.

    There have also been comments that this kind of measure would mean that the criminals would no longer advertise themselves, so it will be harder for the police to identify them because they will no longer have there names and there will be no ceremonies where they can take photographs. That is useful to do, but it is not necessary. We have other ways of achieving our objectives, because a majority of criminal organizations don't advertise themselves. It is really the most dangerous ones, the most violent, that do that. Take the Italians for example, who don't necessarily do it, or other types of organized crime. So it doesn't interfere with investigations, it's just a different kind of investigation.

    If I may, we are targeting street gang members' feeling of belonging. That feeling, regardless of the organization, sends a clear message, that being a member of a gang is not a problem. If we enacted legislation like this, clearly there would be no attraction in joining a gang, it would simply bring the problems associated with gang membership.

    That is not what the street gangs want at present. They want it easy. In fact, it becomes police provocation. We think the most important factor is the public's demand to feel safe, because it is too easy for gangs to advertise themselves, and as mentioned earlier, to advertise themselves everywhere, in any place, and confront police forces whose actions are limited.

    Thank you.

    We'll move on to Mr. Murphy, five minutes.

    Thank you, Mr. Chair.

    I understand that you support these measures. Mr. Mainville and Mr. Latulippe, there was mention of the situation in Italy regarding the Cosa Nostra.

    Do you know whether the measures taken by the Italian government had been enacted by Italy's parliament? In other words, is it working in Italy?

    I don't know. That was a quick search from which we learned that measures had been applied, but I don't know the details.

    My next question goes to what Mr. LeBlanc asked regarding police resources.

    Do you need more effective tools that would enable you to combat organized crime more effectively now? We know, of course, that you need money, resources and additional police officers, but we are on the Justice committee, and our mandate is to amend things like legislation and bills and motions.

    Money is involved, but really it means resources to provide training, not just for police forces, but also for the people who support our work, including prosecutors. We see that at all levels, even for judges, knowledge about organized crime is very limited at present. The evidence often has to be presented several times. We have to keep making the same cases, and the evidence is not easy to establish. We are doing it now, in an operation that was just carried out, using decisions that are being presented to the court. Getting through steps in the judicial process is complex.

    Training about organized crime is very recent in Canada. This is a weak point that we can see at present in all police organizations. Interprovincial or even international training for specialists would be useful. We could exchange information with other police organizations everywhere in the world. In any event, training is limited at present, and measures to change that situation would unfortunately mean operating costs.

    I would also like to add that measures should be taken to simplify disclosure. We apply measures currently, but disclosure in Canada should be standardized and simpler. As I have said before in this committee, we should also adopt measures to deal with all enablers and proxies. That is crucial, in our view. We do investigations that have low chances of success because of the repeated use of proxies surrounded by very experienced enablers who put their knowledge to work. In many cases they have been paid by the public to harm the public.

    We know that codifying disclosure is important. We have put a lot of pressure on the government and we hope that it is going to codify it.

    Mr. Bartlett, you said something that I think we need to dig down on. You said that other civil law countries, like France and Italy, don't have the charter of rights. We have all read about the anti-terrorist situation, and how in some court cases the section 1 override has helped preserve the legislation, but there have been some difficulties, too.

    Is that what you mean? Do you mean that the charter, unlike in the United Kingdom, for instance, stands as something that has to be referenced or kept in mind if and when we go ahead with this?

    I hope I didn't suggest that the civil law countries don't have constitutional frameworks that include guarantees of rights. They're all parties, I think, to the European Convention on Human Rights, but the manner in which the rights are guaranteed is somewhat different from one set of constitutional guarantees to another, and our charter is somewhat different in that regard. There are a number of approaches that European countries have taken to a variety of issues, but when we've looked at the same issue in terms of whether or not there could possibly be a successful challenge under our own charter, the situation does seem to be different.

    But yes, I'm talking about two things, really--the various guarantees in the charter that have to do with freedom of association and the various criminal law guarantees of the presumption of innocence, and what has to be demonstrated and proven to substantiate a criminal charge. These are issues that a court might accept, but we don't know that at this point.

    I think I understand the difference, but just briefly—

    We are at the end of our time, unfortunately.

    How could we get through a minute and a half in such a short time?

    We're already a minute over.

    I'll let you finish your thought.

    I just want to ask about Italy, about how it works there.

    Maybe on the next go-round.

    All right, we'll move to Monsieur Lemay for five minutes.

    Mr. Latulippe, you talked about a study. I would like you to submit it so we can have a look at it. It sounds very interesting. I would like you to send it to us. Obviously it is not a confidential or internal document.

    No, it is a broader study that involves all police investigative activities, and goes right up to reduced capacity. It is explained.

    I would like to be able to have a look at it.

    I understand the difference between the Hells Angels and the Crips. I think there is a lot of movement and change going on in the Crips, particularly at the bottom of the ladder, because it is a street gang.

    If the Crips were named, would that solve part of the problem, or would they change name tomorrow morning and operate under the new name?

    We know there is a way of getting into the Hells Angels and it's a long process. We know the process to become an active member of the Hells Angels. That doesn't exist for the little street gangs?

    Yes, it does in fact exist for the Crips, which is still a major group. This kind of initiation is also seen there, although it is different from the Hells Angels initiation. In fact, initiations take place for "full patch members", if I can put it that way, although it is not as clearly defined as for the Hells Angels. Yes, these processes for identifying, selecting and achieving ranks do exist.

    The criminalist in me is speaking here. The problem, once you get to court, is that it can take a very long time. You have referred to factual evidence and recent evidence. Correct me if I am wrong. If I am not mistaken, in terms of factual evidence, you have to explain what the Hells Angels are, why this is organized crime, etc.

    The last time you appeared before us, Mr. Latulippe, I asked you the question.

    But Mr. Mainville, I don't know whether you were there.

    How much time can it take in a trial, this part, this explanation of what the Hells Angels are?

    It all depends on the size of the organization. For the Hells Angels, there are expert witnesses who could tell you about that. We also have expert witnesses about biker gangs in our organization.

    For one witness in the box, as we say, it can take a week. And that is just to explain how the criminal organization operates at the Canadian, provincial and international levels. That includes cross-examination of course. Still, it all depends on the direction the defence is taking.

    Depending on the number of witnesses, as we have seen in some trials, it can take as long as three months, the time to prove all of the factors that show that it is a criminal gang. Because a number of witnesses have to be called, and then they are there for several days.

    I see a problem. Here again, it is the criminalist talking. What I am interested in is stopping the flow of money, because that is the crucial factor, as everyone knows.

    If the Hells Angels are declared to be a banned organization, that doesn't mean that my good friend who invests their money...

    I'm sorry, sir.

    Mr. Chair, I'm the target today, I guess. You're not doing anything to defend me, either.

    Voices: Oh, oh!

    The people who invest the money are not necessarily part of the Hells Angels. What do we do? I can ban the Hells Angels, the Bandidos, the Crips. We know they commit crimes, but they manage to get the money. What do we do?

    In fact, we think that is part of all the measures dealing with enablers, and it will be included in a document we are currently working on to request some amendments to deal with the new situation.

    At present, with organized crime offences, the sentence imposed... In fact, the crime is simply to enable the work of a criminal organization, which is not very meaningful in the Criminal Code.

    We think there should be other measures taken against professionals who support criminal organizations, because this is a new situation that is growing exponentially. In fact, we have cases currently before the courts and the number of enablers, be they lawyers, accountants, notaries, forensic accountants, has more than doubled, and now it has become virtually the norm. We think there has to be a clear message, at some point, directed specifically at these people who enable crime although they are not members of a criminal organization.

    At the moment, these offences are covered by sections 467.12 or 467.13 of the Criminal Code.

    Thank you.

    Monsieur Petit, for five minutes.

    Thank you.

    Thank you, gentlemen, for coming here today.

    I think the subject is a very important one. I also think that in Quebec, in fact, and I am from the province of Quebec, this is also a very important and very current subject, these days.

    First, I would like to congratulate you. It is very much to your credit that you have recently carried out a huge police operation in the Montreal region, and I think we are starting to score points. But the question we have to ask is: how can we facilitate your work to be sure that we, the public, feel safe in terms of your method of working?

    I would like to ask Mr. Bartlett a first question, since he might be able to answer it a little more easily. The question was asked directly by Mr. Lemay, about membership. Membership has to be proved. If a criminal organization is put on a list, membership has to be established, and you in the police have seen, there are a lot of criteria.

    Would it be possible to do something in terms of evidence to facilitate the work of Crown prosecutors, for example, by having what is called a "reverse onus"? An indictment could say that a particular person is a member of a particular organization, and the accused would have to prove otherwise. That doesn't mean the problem would be solved. I know you have already thought of this, I know there have already been reverse onus provisions, and I know that sometimes judges do it to facilitate the prosecutors' job. Have you thought about that possibility?

    First of all, we don't have an offence for simply being a member of a criminal organization even where that issue is not in doubt. Rather, the offences are for participating in the activities of a criminal organization with a view to enhancing their capacity to facilitate or commit crime, for committing an offence for the benefit of, the direction of, or in association with a criminal organization, or for instructing somebody to commit an offence for a criminal organization. A membership offence per se is what we call a status offence, and it would certainly raise pretty significant charter issues, freedom of association being one of them.

    On a reversal of onus, there are some reverse onus provisions dealing with particular issues in the Criminal Code, but they are pretty restricted. One of the initial questions will be, exactly what is a member? What are the characteristics of membership in a criminal organization? In some cases, the Hells Angels, for instance, for the full-patch members who wear the symbol, that may be fairly clear, but in other cases with street gangs it's going to be almost impossible.

    Assuming that you could establish what membership meant, if the offence depended upon that allegation, and you simply reversed the onus, then it would be difficult to see that this would survive under some of the more basic guarantees of the charter.

    I would like to address my question to the police representatives, Mr. Latulippe and Mr. Blainville.

    Mr. Latulippe, a little earlier you talked about street gangs. You named them, and I think everyone is familiar with them. You talked about the Hells Angels, the triads—I'm not sure whether we should use that term—and the Cosa Nostra, the mafia. Those groups have been established in Quebec for a very long time. There are also the blues and reds in Montreal, who seem to split the territory between them.

    One thing presents a problem, because I really do want to help you. Réal Ménard mentioned an important factor. He said, in a speech in the House in 1995, that organized groups were using legal businesses in the restaurant and construction industries to send the money. Recently, on the CBC, a Mr. Gravel, a journalist, talked about construction. The FTQ-Construction was connected... That didn't seem to smell right.

    How are we going to do it? We are talking about large organizations; we aren't talking about guys selling on streetcorners; we are talking about very large organizations. How are we going to deal with what Réal Ménard was talking about?

    Do you see what I have just done? I have made a connection, which had been made by journalists, and everyone is wondering whether the FTQ-Construction logo is also going to have to be banned! I have just opened a can of worms. How could you guide us through that now?

    First, I don't want to talk about the example you mentioned. Let's take the example of some criminal organization trying to get control of criminal markets, instead.

    I come back to the fact that we need to prevent these criminal organizations from getting the support of experienced people, people well known in their fields, who have expertise and a reputation that can help criminal organizations take over businesses, whether it be automotive, construction or restaurant businesses.

    At present, they find some individuals useful and necessary. They are essential to these organizations. So we have to prevent this. We have to deter them from providing assistance to these criminal groups.

    At present, an individual, for example a notary, who is charged with aiding a criminal organization is liable to a maximum sentence of five years, under the Criminal Code. It's the same thing for a driver who drives the criminals to a location where a transaction takes place, while the notary's assistance meant that the criminal organization could inject millions of dollars into the economy and take over legal businesses and jobs, and then, in a majority of cases, defraud the government.

    So we have to make a distinction among these categories of enablers, between a driver, for example, and someone like a notary or an accountant who manages the assets and conducts the financial transactions.

    Merci.

    I'll move on to Mr. Dosanjh for five minutes.

    Thank you very much.

    I have a question for Mr. Bartlett, but I want to make a comment on the testimony by the two police officers.

    We love the work you do. You protect us and provide public safety. But I'm somewhat concerned that you would advance a position...yet you have no in-house legal opinion, even, to support that position, as to whether or not what you are advancing is legally feasible, given the charter, given general principles of due process--even without the charter.

    I want you to make a comment on it. I'm not making a personal criticism. Obviously your organization supports what you're doing. I would like to know whether or not it's appropriate for you, on behalf of your organization, to advance a position when you don't have an in-house legal opinion from some counsel you might have or an eminent scholar, because obviously we are bound by the rules of due process.

    To Mr. Bartlett, if you say that list is not feasible...and I can understand that. My view would be that the list might not be feasible, even without the charter. Criminal law has evolved over centuries, or over 150 years or so in Canada. Even without the charter, I think it would be impossible to box in a definition. But if you didn't have a list, would there be any other legislative means by which we could define the scope so that it would become easier to deal with the criminal organizations in terms of seeking convictions?

    The two other options that we've discussed at the CCSO organized crime working group would be, first, some sort of statutory provision dealing with judicial notice. The prosecutors on the working group weren't satisfied, the last time we discussed it, that this would necessarily help them, but it's something we're giving some further consideration to. The idea would be to simply allow one court to take notice of findings of fact made in another court, where the facts and issues seemed to be the same, although that would not be without its challenges.

    The other would be to try to address in some statutory way the nature of the evidence required to prove the existence of a criminal organization. Again, that would present its own challenges.

     Is there a way to get around the challenge of proving that the person before the court has done whatever they've done in connection with a criminal organization? Certainly, we don't have any options at this point that would really cut that Gordian knot. If the consequences of the conviction depend upon showing that what they have done, they have done in connection with a criminal organization, then that evidentiary burden in some form is still going to be there.

    We have dealt with other issues, such as proceeds of crime matters with a reverse onus after the conclusion of a criminal case, a reverse onus where it was alleged that the wealth accumulated by the person before the court involved organized crime activity. It was trying to get at some of the elements of the organized crime activity in that way.

    But as to the basic issue of proving a criminal organization offence, I can't say we've come up with any magic bullets. Certainly we're exploring a number of ideas to see if we can find some way to ease the burden somewhat--although, as I say, the prosecutors we've talked to themselves don't see any easy way of doing that.

    Thank you.

    We'll move on to Mr. Rathgeber, for five minutes.

    Thank you, Mr. Chair.

    Thank you to all the witnesses for coming.

    Following up on the questions from my friend Mr. Dosanjh, I'm confused as to.... We've heard from the officers and we've heard anecdotally from other individuals how difficult it is to prove the existence of a criminal organization, and how in these megatrials sometimes days are donated to that proof.

    To the criminal experts, I have section 467.1 in front of me, and it seems like a fairly simple definition: three or more individuals, whose purpose is the commission of a serious offence that's likely to result in material or financial benefit.

    What part of that is so difficult to prove?

    The elements of the definition, I think, are relatively simple and relatively clear, but the practice in the courts, as these cases have been presented, has been to require a fairly large mass of evidence that an organization that fits this definition exists and is ongoing, that the criminal activity that is the subject of the charge before the court has been committed in connection with that criminal organization.

    It's not so much a matter of any particular part of the definition that's the problem, it's the evidentiary burden that prosecutors have faced in satisfying a court that the criminal organization charge, which triggers a fairly significant additional penalty, has been proven.

    Subsection 467.1(2) goes on to indicate a list of things the prosecutor need not prove. Are there potential additions to the list that may solve that problem? For example, you don't have to prove the criminal organization actually facilitated or committed an indictable offence, and it goes on from there.

     That's relevant to determining whether or not somebody has participated in an activity of the criminal organization. You're still going to have to show that the criminal organization exists. These were evidentiary provisions that we hoped would relieve the burden somewhat in showing that the person before the court had participated in activities of that organization that were designed to enhance the organization's capacity.

    I can't say there has been a lot of experience with these being used and tested in the courts and the courts reacting to them. Certainly this kind of evidence is frequently adduced, but it hasn't been presented in such a way as to show that adding to this list would materially help with the prosecutorial burden.

    I'm very curious about the judicial notice. This came up once before in this committee or perhaps in public safety, I'm not sure which.

    My friend Mr. LeBlanc asked you some questions, Mr. Bartlett, concerning judicial notice and some of the things were so obvious--the sun rises in the east and it's dark out at midnight. But there are no statutory presumptions that allow triers of fact to take judicial notice of those very routine things. Why, in your view, would it require a statutory presumption for the courts to take judicial notice of the existence of criminal organizations?

    We're rather appropriating the term “judicial notice” for the kind of concept we're suggesting, because what we're suggesting would not fit what the courts now understand to be the scope of judicial notice, those things that a court can simply take notice of without evidence being presented before the court. It has to be of the very obvious category that Mr. LeBlanc was referring to.

    What we're talking about is simply a statutory provision that would allow a judge to take the fact that, you know, given that the existence of a particular criminal organization was proved in one case, and the facts seen in the case before him or her seemed to be the same in the incident case...and make a presumption based on the finding in the other court.

    Simply the normal rules call for this: if it's a material fact, then the charge before the court has to be proven before that court. So that would be an exception to that. It is not something that a judge could do, based on the common law as it exists at the moment.

    Thank you.

    Mr. Norlock, you have five minutes.

    Thank you very much, gentlemen.

    My first question will be to the police officers, and then I will switch it over to Mr. Bartlett.

    It has been said to this committee, and you're telling this committee, that currently when you have organized crime and organized criminals before the courts, there is too long a time spent on trying to prove that it was a criminal organization. I think in your testimony you said it has taken from up to two weeks to a month. Is that correct?

    Can you give me two or three principal arguments that are used by defence lawyers to try to dissuade the court from recognizing that organization as an organized criminal group? Are there three main arguments that are usually used? Usually there's a commonality there, I would think.

    I am not thinking of any specific argument, other than that in fact the defence tries to establish that the person committed the crime for personal benefit. That prevents us from establishing that it is a crime committed for the benefit of an organization. We are not talking about a specific argument here, such as an attempt to discredit the evidence presented by the police or the witnesses' qualifications and knowledge. Ultimately, the work comes down to finding the weak link.

    This is connected with the factors I mentioned earlier. You always have to establish the connections among these people, their participation, each one's role and status. It is a little more obvious in the case of full patch members, because they often commit the acts we expect to see, but it is much harder in the case of the enablers. It is all the factors, and not one criterion in particular, that are presented to the court.

    You say that there are no single arguments, that it could be a shotgun approach. The defence counsels just want to keep throwing up roadblocks so that the judge keeps having to acquiesce to their arguments. When you make the distinction between personal gain and gain going to groups, you mean you have to be able to prove that all the stolen goods, money taken by intimidation, or other resources go into a collective pot, a central bank account that all the different players draw on? When you say “enablers”, would they be legitimate firms that invest money for individuals or groups that the average person would normally go to? Or would these people go out and hire the best chartered accountants, investment counsellors, and lawyers to ensure their ability to conceal that they are engaged in a collective rather than an individual endeavour?

    What the enablers do is help to camouflage certain things. Still, before proving that the person has committed a crime for the benefit of the organization, we have to establish the existence of the organization, its structure, its operating methods and its rules of engagement. In one trial we started, we were able to establish a list of 42 points of commonality among the members of the organization. That is the first part.

    Then we have to establish that the person acted for the benefit of the organization. That is a factor in the second part. So the first part should not have to be continually done over. That way, we could focus on the fact that the person committed the crime for the benefit of the organization, establish what the person's role was. We would not even have to present the evidence over again in the case of a person who had already been found to be a member of a criminal organization in the past. The point is really to avoid having to prove this over again.

    In the case of enablers, people who are not members of the organization, the evidence required is completely different. The enablers are not part of the gang. It is difficult to explain, but let's say that the evidence in the case of gang members and the evidence in the case of enablers, who are not gang members, are two different things. The measure in issue will not help us in the case of enablers. What has to be established is that enablers aided the gang by doing certain things. That is a different kind of participation.

    Thank you.

    We've heard from our police witnesses the frustrations they've encountered in trying to deal with cases that involve organized crime and the incredible resources they take up. We've heard from our justice department staff that there may be legal obstacles to legislation that would help to identify these organizations.

    Are there any other witnesses you can suggest who could help this committee move forward with this issue—constitutional or police experts? The fact that we're doing this study shows that there are serious obstacles preventing us from bringing these cases to trial in a speedy manner.

     Do you have any suggestions, Mr. Bartlett?

    I would suggest that the committee might benefit from hearing from a cross-section of prosecutors across Canada who have been involved in these organized crime cases. There are some academic commentators who have looked at the terrorism-listing provision, but I don't know of any who have looked at it as a concept that could be applied to a criminal organization, because it hasn't been something that's been put forward as a proposed initiative. Certainly, there are some academics who have looked at the issues involved in criminal organization cases. I think the prosecutors would bring a valuable perspective to the committee.

    I agree with Mr. Bartlett: there are specialists, particularly in BLACO, the Bureau de lutte au crime organisé. There is also the BLPC, the Bureau de lutte aux produits de la criminalité. These enablers would offer their explanations. The problems are completely different, depending on whether the issue is organized crime or proceeds of crime. These two aspects are dealt with jointly, but they involve totally different characteristics. In my opinion, it is important that the committee be aware of this. This means that a connection could be made with what we said about the tools we need for combating organized crime.

    In terms of the police, we could use people in our organizations, experts in street gangs, who act as expert witnesses in court. They would probably raise the questions referred to earlier. It is those questions that most often have to be addressed in court when the issue is proving that we are looking at a criminal organization.

    Thank you. We might be in touch with you to perhaps get particulars of individuals who might move us forward.

    We'll move to Mr. Murphy for three minutes.

    Thank you, Mr. Chair.

    I think that's a good general suggestion about prosecutors in relation to some of our work here. It seems we get a lot of criminal defence lawyers, academics, and interest groups, but we've had very few prosecutors in this part of the machinery.

    Yesterday, on a different topic, the war on drugs, we had the benefit of a witness from the United States. I'll get back to Italy, although I don't want to harp on Italy.

    Do you have anything to say about the international experience? In terms of our civil jurisdiction, I think you're right in saying that they have a framework in the European human rights charter that would probably be as generous as our charter. There are probably not that many dissimilarities, although the burden of proof in a civil system court is a little different--the inquisition type of thing.

    Anyway, to make a long story short, do you have any knowledge of any international efforts in listing organizations? Italy was mentioned by Mr. Latulippe.

    There are examples of particular countries that have used an approach like that, as I say. They are primarily the civil countries. The burden of proof issues are different and the whole structure of a criminal charge and prosecution in the civil countries is significantly different. I'm not saying ours is better and theirs is not as good, simply that they are quite different.

    Certainly Italy has used the designations of the Mafia and the Cosa Nostra. I can't really tell you what part that has really played in the actions they've been able to take against those organizations, whether it's played a major role, or whether the nature of the kinds of criminal cases that have been taken forward has depended to a great deal on that. I really don't know. That's something that we would have to take a hard look at, but generally I must say that when we're looking for models, we tend to look first at the common law jurisdictions in which the basic criminal law system is much more similar to ours.

    Thank you.

    Go ahead, Monsieur Ménard. You have three minutes.

    I am unhappy about the confusion that seems to be occurring. I don't think this committee is looking for legal shortcuts that would mean that when organized crime or similar charges were laid, it would have to be proved in court, which individual committed, directed or facilitated... That is not what we are talking about.

    What we are talking about is this. We are wondering whether it is possible, in terrorism cases, to have a list there. It is often for offences that were not even committed in Canada, based on a list that was even drawn up by common accord among the international community.

    I understand the nuance: the individuals are not necessarily charged with terrorism before there is a second step, but what we are looking for is the possibility, once there has been a legal declaration.

    So the idea of judicial notice is not a good comparison because there will already have been case law. For example, take the Ontario judgment that declared the Hells Angels to be illegal. If that case went to the Supreme Court, the problem would be solved. We know there are appeals, but we never have a guarantee that it will go all the way to the Supreme Court.

    To my mind, the comparison with the idea of "taking judicial notice" is not a good comparison. It is saying that if four courts somewhere in Canada find that organization X, which is called the Hells Angels in this case, is a criminal organization under section 477, we, as a society, should be able to avoid having to prove over again that the individual belongs to a criminal organization. On the rest, regarding the charge against the individual personally, considering the mens rea and actus reus, I would not want to live in a society where people are charged by proxy. I want justice to take its course for individuals.

    I find it hard to understand the comparison with the idea of "taking judicial notice". And again, I would like to get the discussion back on track, about a list of criminal organizations once a judicial finding has been made.

    And Mr. Bartlett, I would like to be sure that we understand the difference properly. I would point out that your senior officials, whom we hold in high regard, were opposed to anti-gang legislation in the 1990s. With Allan Rock, I met with senior officials in the Department of Justice. If we had listened to them, we would never have had the anti-gang legislation under which over 1,000 charges have been laid in Quebec, which have led to 200 convictions. I am not saying that to provoke you. I am sensing a dry technocratic argument and, in my view, it is moving us away from what should be our objective, as a society, but I am prepared to listen to your comments.

    Unfortunately, there's no time for a response.

    Be nice to me. My birthday is tomorrow.

    Some hon. members: Oh, oh!

    No, that was exactly three minutes.

    Mr. Chair, it is my birthday tomorrow.

    Mr. Comartin, you can certainly carry on from there, if you wish.

    That's exactly what I intend to do, Mr. Chair.

    I would like an answer to that, Mr. Bartlett, or a comment on where you see the department coming from.

    Well, if the suggestion is that the purpose of the list would be something other than simply standing as proof of the existence of a criminal organization for the purpose of a criminal organization offence, then I suggest that raises a whole further list of issues and challenges.

    The function that a criminal organization plays in the Criminal Code at the moment is not one in which a decision is made that there's a criminal organization, and something flows immediately from that. Rather, individuals are charged with offences, and offences committed in connection with a criminal organization. They're then subject to an additional offence, beyond the underlying offence, for that connection to the criminal organization.

    I'm going to stop you there. I'm not a supporter of the terrorist list we created. I have spoken out publicly about that. But we're talking here—if I understand Mr. Ménard's position on this—of a judicial process. It seems to me that goes a long way to lending credibility to this process, a judicial process that would go on prior to anybody being put on the list. So we wouldn't be drawing from international lists, as we are with the terrorist groups. God only knows what kind of evidence goes into establishing why these groups get put onto the list and why they get off again.

     Anyway, it just seems to me that what we're talking about would have much more credibility in terms of human rights, civil liberties, and the charter than our existing terrorist list, for a problem that I believe—going back to section 1 of the charter—confronts this country at a more serious level in terms of the safety of our citizens than any fear we should have from terrorists. And I think the Supreme Court would agree with that factual analysis.

    Given those facts, I'm with Mr. Ménard; I'm having some difficulty with the department's position in being so reluctant to proceed on this.

     Well, I thought we were talking about a government designation of criminal organizations very much along the lines of the terrorist group process.

    Mr. Joe Comartin: Okay. I'm not.

    Mr. William Bartlett: When I suggested that another option might be to look at some process whereby a judge could take notice of findings, a fact made in another case before a court, Mr. Ménard said he didn't really see the appropriateness of what we were calling judicial notice.

    If what you're suggesting is that we'd simply go to a court and ask the court to make a finding that a criminal organization existed, with no particular criminal charge before the court, that would be a process pretty much unknown to our criminal law. Our criminal law depends upon charges being brought against individuals and then brought before the court.

     It might be feasible to have some kind of process for reporting the findings of fact--might; I'm not sure about that. That's an issue we're examining at the CCSO organized crime working group. But it might be appropriate to have them simply take notice as a rebuttable presumption in terms of the case before them of a finding made in another court where the facts seem to be the same. There are some criminal law principles that are on a much more restricted basis, but that might lead you to that.

    But as for a process whereby the court simply in the abstract has a case presented to it as to whether or not a criminal organization exists, so the courts would be the one doing the designating for all time, I think the courts would have some serious concerns about any sort of process. I mean, it sounds a little like a royal commission or a judicial inquiry or something to that effect. The judiciary does sometimes participate in judicial inquiries in which there are particular things in issue, but for a court to be asked to simply establish for criminal law purposes a particular fact, whether it's the designation of a criminal organization or anything else, I think would be a pretty far-reaching suggestion.

    I thought what we were talking about was a government designation process similar to the terrorist group listing process. The kinds of concerns you've voiced about that are certainly there, because it is a government process, so the courts, I think, are going to be concerned about trying to apply that to a case before them where somebody's charged with an offence.

    Thank you.

    We'll move on to Mr. Norlock for the last question.

    You have three minutes.

    I find it very, very interesting that some people are against lists unless the lists meet a certain purpose. I guess I'm a bit confused, because I related, I suppose, a little more closely to Mr. Latulippe and Mr. Mainville, who have a job to do. I guess they might say they don't have time for the esoteric arguments and the debating society over the legal issues: there are bad guys out there and the bad guys need to be caught. There's something standing in the way of that and they see the development of a list as a way to get past one of the hurdles.

     When you become a police officer, you're told that the common law is pretty easy to understand. It is that the average person on the street, given a certain set of circumstances, believes that something is right or something is wrong, and that becomes part of your law. But I guess we've developed a society in which the law gets very confusing, and the crowd at Tim Hortons doesn't understand it anymore. That's the crowd that goes to people like Mr. Latulippe and Mr. Mainville and asks why the heck they're not doing something about it. So then they point to people like Mr. Bartlett and say, “Draft something up for us”.

    It goes back to what I call the duck and the platypus. They have beaks and webbed feet. I don't know what a platypus says, but you'd think it's a duck. A lawyer will then come up and say that the feathers are really not feathers but hair, and therefore it's not a duck, but a platypus. I guess that's the argument here. It sounds kind of strange to say that. As someone who now is at the stage of attempting to draft legislation that meets the problem, I become confused when I listen to people who are usually anti- the debate and anti- what you want to propose.

    I guess in its simplest terms, Mr. Bartlett, if you were talking to somebody and ordering your double-double at Tim Hortons, how would you explain to them the difference between a terrorist list and an organized crime list and how the courts see that?

     That's if there's any time left. Sorry about that.

    The Chair: There's one minute.

    I guess I'd have to say that it's not a simple question. I appreciate the difficulties of trying to explain these very complex questions to the guy at the Tim Hortons or wherever.

     The kinds of concerns I've discussed are concerns that we've heard from prosecutors who actually have to prove these cases. It's not an esoteric or academic position they're taking; it's a matter of looking at the kinds of challenges they face all the time and saying we're just not sure that it would help, and it could raise a whole new host of challenges. They have some concerns with trying to deal with it that way.

    What I'm saying is that I don't think there are any simple answers, and this certainly raises as many challenges as, I think, it does opportunities. As I've said, we haven't concluded our discussions on the issue, but we've certainly heard a lot of reasons to be hesitant about embracing the idea.

    It is a very complex matter, but maybe the one simple thing is that if you're going to make certain consequences depend upon showing that somebody is committing crime not as an individual but in connection with a criminal organization, then there's going to be an evidentiary burden and challenge to show the link between what they're doing--drug trafficking on the street, extortion in somebody's office, or whatever--and a criminal organization. You want consequences to flow from that, so there is going to be a burden in showing that additional element and then asking for criminal consequences to flow from it.

    We're out of time today, unfortunately, but hopefully we can move ahead with this.

    Mr. Bartlett.

    Mr. Ménard was asking about a brief. I don't have a brief, but I have some remarks I made up for myself. I could clean them up and have them translated. I got the invitation to appear just last Thursday. I didn't have time to prepare a brief.

    We understand that. Your remarks are recorded in the blues anyway, so we do have a written record of what you said.

    I thank all of our witnesses.

    We're adjourned.