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 , 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 , 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.
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, 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.
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?
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.
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?
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.
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.