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CHAPTER 2
North American approaches to
organised crime
Canada
2.1
The Delegation travelled to Ottawa where it held discussions over two
days with senior executive officers from the Royal Canadian Mounted Police, the
Criminal Intelligence Service Canada, the Department of Justice Canada, and the
Public Prosecution Service of Canada. Discussions covered the range of law
enforcement programs and legislative approaches developed in Canada to target
serious and organised crime. Details of these meetings and the officers with
whom the Delegation met are listed at Appendix C.
2.2
The following section provides a brief description of the agencies and
departments with which the Delegation met, the nature of organised crime in
Canada, Canadian legislation targeting organised crime, and the key issues and
findings from the Delegation's discussions in Canada.
Canadian agencies with which the
Delegation met
Royal Canadian Mounted Police[1]
2.3
The Royal Canadian Mounted Police (RCMP) is the national policing body
in Canada. It is headed by Commissioner William Elliott, and under the Royal
Canadian Mounted Police Act is responsible for enforcing laws made by the
Canadian Parliament. Commissioner Elliott is the first appointed Commissioner
of the RCMP who has not previously served as a law enforcement officer.
2.4
Under Canadian law the enforcement of the Criminal Code 1985 is
the responsibility of provincial governments. The RCMP provides policing
services to all of the provinces except Ontario and Quebec, plus the Yukon,
Northwest Territories and Nunavut, under policing agreements and, under
separate agreements, provides policing services to 197 municipalities.
2.5
In 1996, the RCMP began moving towards a more regional management system
under the direction of deputy commissioners. Four regions were developed:
Pacific, Northwestern, Central, and Atlantic. This change ensures greater regional
and local involvement in decision-making and allows for the better targeting of
the RCMP resources.
2.6
The total establishment of the RCMP force as of 1 April, 2009 was
27,193.
Delegation Members with senior
officers of the Royal Canadian Mounted Police, Commissioner Elliott, Senior
Deputy Commissioner Sweeney, Deputy Commissioner Souccar, and Deputy
Commissioner Killam
Criminal Intelligence Service
Canada[2]
2.7
The Criminal Intelligence Service Canada (CISC) is a
strategically-focused organisation that facilitates the production and exchange
of criminal information and intelligence within the Canadian law enforcement
community.
2.8
Canada has nearly 380 law enforcement agencies and since its inception
in 1970, CISC's fundamental purpose is to facilitate the timely production and
exchange of criminal intelligence within the Canadian law enforcement community
through the delivery of intelligence products and services. CISC has developed an
intelligence-led approach to tackling organised crime in Canada.
2.9
CISC Central Bureau is located in Ottawa and provides leadership,
strategic direction and administrative support to the national CISC program. CISC
has ten provincial bureaus which operate independently while maintaining
national service delivery standards. The provincial bureaus focus on criminal
intelligence activities within their respective provinces, and provide
leadership and guidance in the collection, analysis and production of strategic
intelligence products and services at the provincial level. The intelligence
collected and analysed through the provincial bureaus is used in the creation
of the national intelligence products and services delivered by Central Bureau.
Delegation Members with Federal Agent
Gerry Morris, and senior officers of Criminal Intelligence Service Canada, and
the Royal Canadian Mounted Police
Department of Justice[3]
2.10
The Department of Justice works to ensure that Canada's justice system
is as fair, accessible, and efficient as possible. The Department assists the
federal government to develop policy and to draft and reform laws. At the same
time, it acts as the government's legal adviser, providing legal counsel and
support, prosecuting cases under federal law, and representing the Government
of Canada in court.
2.11
The Department's responsibilities reflect the double role of the
Minister of Justice, who is also by law the Attorney-General of Canada. In
general terms, the Minister is concerned with the administration of justice and
policy in areas including criminal law, family law, human rights law, and
Aboriginal justice. The Attorney-General is the chief law officer of the Crown
and is responsible for conducting all litigation for the federal government.
The
Public Prosecution Service of Canada[4]
2.12
The Public Prosecution Service of Canada (PPSC) is a federal government
organization responsible for prosecuting criminal offences under federal law
and contributing to strengthening the Canadian criminal justice system.
2.13
The PPSC is responsible for prosecuting offences under more than 50
federal statutes and provides prosecution-related legal advice to law
enforcement agencies. The PPSC is not an investigative agency. It prosecutes
when a charge has been laid pursuant to an investigation by the Royal Canadian
Mounted Police (RCMP), or some other police force or investigative agency, of a
violation of federal law. The PPSC provides advice and assistance to
investigators at the investigative stage and works closely with them. Cases
prosecuted by the PPSC include those involving drugs, organized crime,
terrorism, tax law, money laundering and proceeds of crime, crimes against
humanity and war crimes, Criminal Code offences in the territories, and a large
number of federal regulatory offences.
2.14
The PPSC is an independent organization which reports to Parliament
through the Attorney-General. The PPSC employs approximately 900 full time
employees, including 500 prosecutors, and retains more than 810 private-sector
lawyers as agents across Canada.
The nature of organised crime in
Canada
2.15
The Delegation was provided with a transcript of evidence to the
Standing Committee on Justice and Human Rights, in which Assistant Commissioner
Mike Cabana, Organized Crime Committee, Federal and International Operations,
Royal Canadian Mounted Police, gave an overview of organised crime in Canada:
Organized crime has significantly changed over the last five
years in Canada. While the drug trade remains a focal point of their
activities, they have continued to become more sophisticated and diversified in
their criminal activities.
Most are involved in more than one type of criminal activity
which can range from drug crimes or financial crimes, such as identity theft,
mass-market fraud and money laundering, to crimes such as human smuggling,
human trafficking, and counterfeiting consumer products and medications.
While there are many factors at play in the acceleration of
organized crime activity in Canada, the end result is that today Canada has
been identified as a source country for synthetic drugs and a transit country
for cocaine en route from North America to Asia. More worrying, and presenting
an immediate threat to public safety, organized crime groups have escalated
their use of violence in fighting for territory and shares in what have become
very lucrative illicit markets. These groups have also come to rely on the
corruption of public officials and using violence towards their rivals,
potential witnesses, law enforcement, and the judiciary.
Many organizations have become more sophisticated in that
they compartmentalize their operations and expand over a number of countries.
They are relying on modern technology to communicate and to further insulate
themselves from the reach of the law.[5]
2.16
The nature of serious and organised crime is not unique to Canada – organised
crime has developed in a similar manner in Australia.
Key Canadian legislation targeting
organised crime
Criminal laws
In 1997, together with New Zealand, Canada became the first
common law jurisdiction in the region to introduce specific offences against
criminal organisations. These offences were introduced in response to the
activities of outlaw motorcycle gangs... Throughout the 1990s the province of
Québec saw particularly violent clashes, including bombings and killings,
between rival biker gangs, frequently involving the Hell's Angels and the Rock
Machine gangs that were fighting for control of Montréal's illicit drug trade.[6]
2.17
The Act to amend the Criminal Code (criminal organizations) and to
amend other Act in consequence (Bill C-95), which was enacted in 1997,
amended the Criminal Code by adding a new offence for participating in and
contributing to the activities of criminal organisations,[7] proceeds of crime
forfeiture provisions based on the civil standard of proof,[8]orders
to 'keep the peace',[9]
consecutive sentencing provisions[10]
and police surveillance powers.[11] The provisions were amended in 2002 to
extend the application of the offences beyond Outlaw Motorcycle Gangs (OMCGs,
referred to as 'bikers' in Canada) to other organised criminal groups.
2.18
The Criminal Code defines 'criminal organisation' as a group comprised
of three or more persons that has as one of its main purposes or activities the
commission of one or more serious offences that, if committed, would likely
result in material benefit to the group or its members.
2.19
There are three offences under the Canadian Criminal Code of:
- Participation in the activities of a criminal organisation
- Commission of a criminal offence for a criminal organisation, and
- Instructing the commission of an offence for a criminal organisation.
2.20
Each of the offences carries a different maximum penalty of five years,
14 years and life imprisonment respectively. The offences act as both distinct
crimes and as sentence enhancers.
2.21
The offence of participation in or contribution to the activities of a
criminal organisation is designed to capture people whose contribution to a
group indirectly assists the commission of crimes.[12]
Section 467.11(1)(3) sets out indicia to assist the court in establishing a
person's contribution to a group, which include the use of a name, word or
symbol associated with the group, the fact of association and the receipt of a
benefit from the group. These indicia are specifically formulated to target
OMCGs. Therefore, it is not necessary for the prosecution to prove that an
accused took part in a criminal offence in order for a person to be found
guilty of the offence.
2.22
Similarly, the offence of instructing the commission of an offence,
which is intended to capture the leaders of organised crime groups, does not
require evidence that an offence has been committed.[13]
2.23
However, the offence in section 467.12(1) – commission of an offence for
an organisation – requires that the elements of an initial indictable offence
be proven.[14]
If such an offence is proven, each of the three offences may operate as
sentence enhancers, depending on the individual's level of involvement, as the
legislation requires that the sentences for the organised crime offences be
served consecutively with any other substantive crime.[15]
2.24
The legislation also alters the ordinary evidentiary burdens in favour
of the prosecution, recognising the difficulties that prosecutors often have in
obtaining evidence from an accused person's associates. For example, the
prosecution does not need to prove that the organisation facilitated or
committed an indictable offence or that the accused knew the identity of any of
the persons who constituted the organisation.
2.25
Membership of an organisation itself is not an offence under Canadian
law.
Proposed amendments
2.26
On 26 February 2009, the Minister for Justice and Attorney-General, the Hon Rob Nicholson, introduced An Act to amend the Criminal Code (organised crime and
protection of justice system participants). The Bill proposes the following
amendments to the Criminal Code:
- Murders connected to organised crime activity will automatically
be first-degree. First degree murder is subject to a mandatory life sentence
with a 25 year non-parole period.
- The creation of a new offence to target drive-by shootings. The
Bill makes it an offence to intentionally discharge a firearm while being
reckless as to whether it will endanger the life or safety of a third party.
The offence carries a mandatory penalty of four years imprisonment, with a
maximum of 14 years. The minimum sentence is increased to five years for a
first offence and seven years for a subsequent offence if the offence is
committed for a criminal organisation.
- The creation of two new offences of aggravated assault against a
peace or public officer that causes bodily harm, and aggravated assault with a
weapon on a peace or public officer (any public official employed to maintain
public peace or for the service or execution of civil process).
- Clarifying that when imposing sentences for certain offences
against justice system participants (including police), courts must give
primary consideration to the objectives of denunciation and deterrence.
- Lengthening 'gang peace bonds' – which are preventative court
orders requiring individual gang members to agree to specific conditions
governing their behaviour – from a maximum of 12 months to 24 months, for
defendants with previous convictions for certain organised crime offences. The
amendments would also make it clear that courts may impose any bond condition
they deem necessary to protect the public.
Proceeds of
crime laws
2.27
Part XII.2 of the Criminal Code provides for the seizure, restraint and confiscation
of assets proven on the balance of probabilities to be the proceeds of crime
for which the person was convicted. A person must have been convicted of an
indictable offence under Canadian federal legislation prior to the Crown
applying for confiscation of the proceeds of crime.
2.28
If the Crown is unable to prove a link between the assets and the crime
for which the person was convicted, a court may still order that assets be
forfeited if the Crown proves beyond reasonable doubt that the assets are the
proceeds of crime.
2.29
The onus is lower for persons convicted of organised crime offences and
drug offences, with a court being able to make a confiscation order in regard
to any property identified by the Attorney-General if satisfied on the balance
of probabilities that the offender has engaged in a pattern of criminal
activity for material benefit in the decade preceding the conviction, or that
the income cannot be reasonably accounted for.
Key issues and findings
Outlaw Motorcycle Gangs
2.30
Canada has historically had a significant problem with OMCGs. The
largest club is the Hells Angels, who according to 2009 estimates by the
Criminal Intelligence Service Canada, are reported to have 460 full-fledged
members and 34 chapters.[16]
The Bandidos and Outlaws also have a significant Canadian presence.
2.31
During the late 1990s a turf war between the Hells Angels and Rock
Machine is reported to have claimed more than 150 lives, including that of 11-year-old
Daniel Desrochers, who died when a car bomb exploded outside a biker clubhouse.
This incident was the catalyst for the 1997 amendments to the Criminal Code, which
increased the penalties for convicted offenders who were shown to be members of
established criminal organisations.
2.32
A CBN News article outlined the major biker organizations that operate
in Canada:
Hells Angels: Criminal Intelligence Service Canada
describes the Hells Angels as the largest "outlaw motorcycle gang" in
the country, with active chapters concentrated mostly in Quebec, Ontario and
British Columbia.
The gang moved into Ontario in 2000. Before that, its only
presence in the province was with a chapter of the Nomads, the club's elite
branch. The Nomads doesn't tie itself to geographical locations and doesn't
have formal clubhouses, like other chapters.
Within a year, the Angels had absorbed members of the Para
Dice Riders, Satan's Choice and Last Chance, giving them at least 100 members
in the Toronto area — the highest concentration of Hells Angels in the world.
In mid-April 2009, police targeted more than 150 people
linked with the Hells Angels in early-morning raids mostly in Quebec, but also
in New Brunswick, France and the Dominican Republic. They also seized four suspected
Hells Angels bunkers.
Bandidos: It's considered the world's second-most
powerful criminal biker gang, with more than 2,000 members in 14 countries,
according to NGIC's 2009 report, which describes the Bandidos as a "growing criminal threat."
The Bandidos was founded in the 1960s in Texas. The club's
old guard was said to be against its absorption of the Rock Machine's Ontario
branches for fear of igniting the same kind of war with the Hells Angels that
gripped Quebec for much of the 1990s.
In April 2006, eight people — all Bandidos members or
associates — were found dead in a farmer's field near the small town of
Shedden, Ontario. Police said the killings virtually wiped out the Toronto
chapter of the Bandidos.
Outlaws: First established in the United States in
1935, the gang came to Canada in 1978 when several chapters of Satan's Choice
in Montreal changed allegiance and set up shop as the Outlaws Motorcycle Club
of Canada. The group is known to detest members of the Hells Angels.
Rock Machine: Second only to Hells Angels in Quebec. A
long-running turf war with the Angels left more than 150 people dead as the two
fought over the lucrative trade in illegal drugs. The war also led to the
passage of anti-gang legislation by the federal government.
As the Hells Angels expanded into Ontario, so did the Rock
Machine. The organization established three chapters. In 2001, it aligned
itself with the Bandidos.
Satan's Choice: Once one of Ontario's strongest
motorcycle gangs, Satan's Choice became part of the Hells Angels' 2000-2001
expansion into Ontario. Satan's Choice had branches in Keswick, Kitchener, Oshawa,
Sudbury, Simcoe County, Thunder Bay and Toronto — but nothing outside the
province.[17]
2.33
The Delegation was told that the structure of these groups varies. Some
are structured like a franchised business while others operate under a
pyramidal structure. OMCG chapters hold weekly 'church' meetings and some
members are required to pay monthly 'church fees' of approximately CAN$250
(AU$278). Within chapters individual members can operate their own businesses,
and like legitimate businesses, these are increasingly sophisticated. A Criminal
Intelligence Service Canada report noted in 2003 that
OM[C]G activity within Canada remains widespread; these
groups are continually attempting to widen their influence. OM[C]Gs,
particularly the HELLS ANGELS derive their financial income from various
criminal activities across the country such as prostitution and fraud. However,
drug trafficking, most notably cocaine and marihuana, remains their primary
source of income.[18]
2.34
Like other serious and organised crime groups, OMCGs are seeking to
operate in geographic locations with weak law enforcement capabilities. While
the Delegation was in Canada the RCMP was involved in an operation which
targeted high-ranking Hells Angels members in Quebec and New Brunswick. One
hundred and twenty-three people were arrested, including 111 full-patch
members. Significantly, suspected Hells Angels members were also arrested in
the Dominican Republic.
2.35
Largely due to their overt public violence and considerable involvement
in the manufacture and distribution of illegal drugs, OMCGs remain a key target
for Canadian law enforcement. Over the past ten years law enforcement agencies
have taken a disciplined and targeted approach to OMCGs. Senior Deputy
Commissioner Bill Sweeney talked about the need to maintain a focus on these
groups to ensure that they did not grow in strength. The Delegation was told
about the successful OMCG strategy in which these gangs were targeted in a
persistent and strategic way, to identify and target the 'weakest link' in the
organisational chain.
Information and intelligence
sharing
2.36
Canada has 380 law enforcement agencies and this presents a significant
challenge for information and intelligence sharing. Deputy Commissioner Tim
Killian noted that traditionally there has not been a culture of information
sharing between various law enforcement agencies. Assistant Commissioner Mike
Cabana, Organized Crime Committee, Federal and International Operations, Royal
Canadian Mounted Police also highlighted legislative barriers to the sharing of
information and intelligence:
I was talking about the multi-faceted approach, is to deal
with the importance for us of ensuring the enforcement community's ability to
share information and intelligence between agencies, both domestically and
internationally—there is an issue domestically as well. We need to realize that
good intelligence will allow us to have early warning of what is coming down
the road and will put us in a position to prevent some of the actions of
criminal organizations.
In the legislative reviews, aside from lawful access there's
also a need to look at some of the legislation put in place, sometimes several
decades ago, governing the exchange of information—including the Privacy Act—to
make sure that federal agencies can share the intelligence, among themselves
and with the provincial and municipal agencies and vice versa. A gap exists now
that is actually putting Canadians at risk.[19]
2.37
However, as Canadian law enforcement moves from a reactive approach to
organised crime, to a more proactive approach, and investigations are
increasingly intelligence-led, there is now a greater requirement for information
and intelligence sharing across agencies.
2.38
Lieutenant-Colonel Bud Garrick, the Deputy Director General of the
Criminal Intelligence Service Canada (CISC) told the Delegation that a key role
of CISC was to bring together the 380 law enforcement agencies through the
production of national intelligence products. These products include the
'Report on Organised Crime' and the 'National Threat Assessment'. CISC also
administers the Automated Criminal Intelligence Information System (ACIIS), which
is a national database for criminal intelligence and information on organised
crime. The Delegation was informed that 245 agencies actively use ACIIS with
approximately 2.5 million transactions per year.
2.39
Ms Debbie Counsel, also from CISC, noted the tension between the political
pressures to increase the number of operational law enforcement officers, and the
need for more intelligence-led approaches to law enforcement. It was suggested that
in future, as white-collar crime increases, there will be a requirement for a
greater intelligence capacity and services for law enforcement.
2.40
Deputy Commissioner Vince Hawkes from the Ontario Provincial Police told
the Delegation about the success of the recently established Canadian
Integrated Response to Organized Crime (CIROC). CIROC is a committee,
established under an agreement between all levels of Canadian law enforcement, which
shares information and works in a targeted and coordinated manner against
organised crime. Under CIROC intelligence is managed, analysed and shared
through a common database which is used by the committee to make operational decisions.
2.41
In addition to highlighting the need for information sharing amongst
Canadian law enforcement agencies, Canadian law enforcement also stressed the
importance of information sharing between agencies at regional and
international levels:
I would like to address ... the need for an increased ability
to share information between government agencies, domestically and
internationally, to eliminate havens where criminal organizations can flourish.
The current environment is one of fear of sharing information, due to either
legislative restrictions or human rights concerns. While it is essential to be
careful in determining the appropriate information to share and the context
within which it is shared or used, this can seriously impede the ability of law
enforcement to investigate organized crime.
Organized crime operates from an international perspective.
In fact, it can be demonstrated that organized crime is taking advantage of the
infrastructure and legislation of certain countries. They are organizing to
better insulate themselves. As an example, some criminal organizations have
based themselves in India and China to forward precursor chemicals. Other
organizations have sought refuge in Caribbean countries, while others are now
infiltrating countries of the African continent to use as trans-shipment
points.[20]
Technology and telecommunications
access
2.42
In a number of the Delegation's discussions the importance of technology,
such as telephone intercepts, was raised, as were the challenges that
technology and its rapid development present to law enforcement.
2.43
Commissioner Elliott highlighted issues around access to
telecommunications data. The Delegation was told that developments in telecommunications
often occur without the provision of 'backdoor access' for law enforcement, so
that law enforcement agencies are unable to intercept some of the newer telecommunications
technologies. Companies developing these technologies in Canada are no longer under
a legal obligation to create an ability for law enforcement agencies to
intercept new telecommunications.[21]
2.44
Assistant Commissioner Mike Cabana, Organized Crime Committee, Federal
and International Operations, Royal Canadian Mounted Police told the Standing
Committee on Justice and Human Rights, that:
...we need to progress is the area of lawful access. While
communications technology has evolved considerably and criminals are embracing
and taking advantage of it, Canadian law has not kept pace with the rapid
changes. Increasingly, complex technologies are challenging conventional lawful
access methods. Communication carriers are not required to provide access
technology. Law enforcement agencies are simply asking that telecommunication
carriers build interception capability into existing or new networks and
provide access to important customer name and address information.[22]
2.45
Consequently, law enforcement agencies are required to develop their own
post-implementation solutions, which can be both complex and costly.
Confiscation of the proceeds of
crime
2.46
Law enforcement strategies which target the business model and financial
and material assets of organised crime were consistently raised during the
Delegation's meetings. Mr Robert Fahlman, Director General of Criminal
Intelligence, RCMP and Chief Superintendent Pierre Perron, RCMP, both highlighted
the importance of asset confiscation as an effective strategy to disrupt
organised criminal activity. In particular, the Delegation was told that by
depriving individuals of illegally obtained assets, law enforcement is able to
remove the major incentive for illegal and criminal activity.
2.47
A number of the officials with whom the Delegation met raised the merits
of Ontario's civil forfeiture regime over the Criminal Code's assets forfeiture
provisions.[23]
Mr Fahlman noted that the federal proceeds of crime legislation requires a
higher burden of proof and therefore presents greater challenges for law
enforcement than the Ontario laws.
2.48
As noted above, the Criminal Code provides that assets can be seized if
the prosecution proves on the balance of probabilities that the assets are the
proceeds of a crime for which the person was convicted. Alternatively, if the
prosecution can prove beyond reasonable doubt that assets are the proceeds of
crime, no conviction is required to confiscate the assets. Mr Bill Bartlett,
Senior Counsel from the Department of Justice, told the Delegation that as a
result of the higher requirements of Federal Criminal Code, law enforcement was
increasingly and successfully using provincial civil confiscation legislation.
2.49
Ontario’s Civil Remedies Act 2001 permits a court, at the request
of the Attorney-General of Ontario, to make an order freezing or forfeiting to
the Crown, property acquired through, or likely to be used for, unlawful
activity. Property includes all types of assets, such as real estate, cars and
cash.
2.50
There are three types of cases that the Attorney-General of Ontario can
bring under the Civil Remedies Act: a proceeds case, an instruments case and a
conspiracy case.
2.51
In a proceeds case, the Crown must establish that property was acquired
as the result of unlawful activity. If proven, this property may be forfeited
to the Crown by an order of the Ontario Superior Court of Justice.
2.52
In an instruments case, the Attorney-General must establish that the
property in question is likely to be used to engage in unlawful activity that
could result in the acquisition of other property, including money, or in
serious bodily harm to any person. Where the Attorney-General establishes that
the property is an instrument, often from past use of the property in an
unlawful activity, the Ontario Superior Court of Justice may order that the
property be forfeited to the Crown.
2.53
In a conspiracy case, the Crown must establish that two or more people
conspired to engage in unlawful activity where they knew or ought to have known
that the activity would likely result in injury to the public. The Ontario
Superior Court of Justice may award damages for that injury or issue preventive
orders.
2.54
The Superior Court of Justice must approve all steps in a civil confiscation
proceeding under the act. The Civil Remedies Act authorizes the court to order
the preservation of money or property to prevent it from being sold or
mortgaged. If the government then proves its case, the court can order the
money or property to be forfeited to the Crown. The onus of proof lies with the
Crown.
2.55
Deputy Commissioner Vince Hawkes, Ontario Provincial Police informed the
Delegation that the Civil Remedies Act has been highly successful and that over
a twelve-month period CAN$41million (AU$46 million) of assets and funds had
been restrained. The legislation has also been effective in that it allows
clubhouses and vehicles to be forfeited thereby undermining the ability of
organised crime groups to use these assets to undertake further illegal
activities.
Disclosure burdens
2.56
The prosecution of serious and organised criminal activity is becoming
increasingly complex as a result of the sophistication and complexity of modern
criminal enterprises. The Delegation was told that current developments in
disclosure requirements impose an enormous financial and resource burden on law
enforcement agencies. In the 1991 Supreme Court of Canada decision R v
Stinchcombe,[24]
the issue of 'relevance' vis-a-vis information collected and disclosure by the
police and the Crown was tested.
In a 1991 case, Regina v. Stinchcombe, the Supreme Court of
Canada ordered prosecutors to disclose to the defendant before the trial all
relevant information. “Relevant disclosure” is defined as the reasonable
possibility that information could be used to meet the crown's case, advance a
defence, or make a decision that could affect the conduct of the defence.
Disclosure in Canada has become a significant exercise in criminal cases, and
issues pertaining to relevant disclosures surface in most major cases today.
This can have a significant impact on the cost and progress of investigations
and prosecutions.
Courts, crown counsel, defence counsel and police officers
across the country have varying interpretations of what "relevant
disclosure" is. Within our judicial system, the concept of relevant has
been interpreted to the point where the threshold test for relevant disclosure
is extremely low. As the investigation of criminal organizations has become
complex, the management for purposes of disclosure has become more and more of
a challenge. Consequently, this affects our capacity to investigate other
criminal organizations.
A quick example of how expanding disclosure can affect an
investigation. A few years ago, during a police investigation in Canada
targeting a major organized crime group, 1.7 million pieces of communication
were intercepted. Of those, 27,000 were transcribed. In the end, only 200 were
deemed sufficiently relevant to the case to be used in court.
Investigations can produce an extraordinary amount of
documentation. Significant policing resources are allotted to this duty,
effectively removing them from front-line policing.
Further, the reality of the volume of disclosure has affected
the capacity of law enforcement and prosecutors to attack organized crime as an
offence in and of itself. In many instances, prosecution for substantive
offences is preferred over organized crime charges. The legal framework and
practices must evolve and embrace the efficiencies that can be provided by new
techniques and methods such as those provided by electronic technology. Most
importantly, there is a need to establish a well-defined and consistent
threshold for relevant disclosure. This could be accomplished through enacting
disclosure requirements and procedures.[25]
2.57
The Delegation was told that disclosure requirements in the Canadian justice
system have developed to a point where they are problematic. However, the Delegation
also heard of some positive developments in regard to the management and
presentation of information. Mr Beardall, Senior Counsel, Public Prosecution
Service of Canada, noted that there was a move toward streamlining the
disclosure process with a greater acceptance by judges, the Crown, the defence
and police of the provision of documents digitally. The Delegation heard of a
successful initiative where material gathered during the development of an
investigation was compiled on a computer hard-drive. The hard-drive was then
provided as part of disclosure requirements, saving both resources and time. It
is then at the discretion of the defence as to which pieces of information they
wish to access in hard-copy.
Integrated justice units
2.58
During discussions with both the RCMP and Senior Counsel from the
Department of Justice and the Public Prosecution Service of Canada, the
complexity of the Canadian criminal justice system was raised as a significant
challenge facing both the judiciary and law enforcement. The increasing
sophistication of organised criminal enterprises and their activities requires the
judiciary and law enforcement officers to have greater specialised knowledge.
Of concern, was the practice of specialised defence counsel who used the
complexity of the case to considerably slow pre-trial motions. In particular,
the Delegation heard that time served in custody prior to sentencing is counted
on a two-for-one basis. This means that every year in custody prior to
conviction reduces the final sentence by two-years. It was suggested that this
was a mechanism used by individuals at the high-end of serious criminal charges
to significantly reduce prison sentences. This practice was also reported as
being responsible for overcrowding in pre-trial detention facilities.
2.59
Mr Bartlett, from the Department of Justice, highlighted a range of reforms
currently being implemented in Canada to address the challenges that complex
criminal cases present to law enforcement and prosecutors. Integrated Justice
Units were flagged as a significant new approach. The Units integrate the investigation
and prosecution of criminal cases by having both police and prosecutors
involved in cases from the outset. This approach moves away from the more
traditional silo approach in which police are responsible for the investigation
of a case and then hand it over to the Public Prosecution Service of Canada to
prosecute. Integrated Justice Units allow prosecutors to be involved with
police to ensure that the case and brief of evidence are collected and prepared
in a manner which is compatible with the prosecution process. It was noted that
while this approach has little public or political appeal, it has significant
benefits for law enforcement.
The Charter of Rights
2.60
Canada has a Charter of Rights and Freedoms (the Charter). The Delegation
was told that the Charter has been in operation for 26 years and that Canadians
broadly support it. However, it was acknowledged that for law enforcement the
Charter has had a number of unintended consequences.
2.61
The Charter contains a number of provisions that impact on Canada's
options for responding to serious and organised crime, including:
- Subsection 2(d), which guarantees freedom of association.
- Section 7 requires that all laws be 'in accordance with
fundamental justice' which has been interpreted to include a requirement of
proportionality.[26]
This means that citizens may challenge legislation on the basis that it is not
proportional to the end sought to be achieved.
- Section 7 has also been interpreted as requiring that all
criminal laws have a mens rea (or mental) element. Therefore all
criminal offences attracting penalties of imprisonment require the proof of
some level of intent.
2.62
Due to Canadian constitutional guarantees of freedom of association,
Canadian criminal legislative approaches have centred on legislation which
targets participation in – rather than membership of – a criminal enterprise or
organisation. The Charter was also argued to add complexity to the work of law
enforcement because of the issues surrounding individual privacy and lawful
access to private property.
2.63
The Delegation was told that the Charter of Rights and Freedoms
has become a mechanism used by those facing criminal trial to stall the
judicial process.
The social dimension of crime
2.64
Senior officers of the RCMP noted the link between social exclusion,
social disadvantage, and crime. Senior Deputy Commissioner Bill Sweeney from
the RCMP noted that 80% of all crimes were committed by 20% of people.
2.65
The Delegation was told that while there has previously been an
inclination for law enforcement agencies to focus solely on criminal acts,
there is now a growing awareness of the need to balance this with consideration
of social and economic issues. Commissioner William Elliott highlighted the
need to reconsider the structure of police forces in the 21st
Century, as modern police forces are required to have skills beyond traditional
law enforcement activities. Accordingly, the RCMP are looking to make
investments in a range of skilled individuals including forensic accountants
and intelligent analysts. The RCMP has also recognised the importance of
targeting the causes of crime, particularly low level, street-gang crime,
through social intervention, and has developed greater links with agencies which
provide social services.
2.66
The Delegation was told that the RCMP in partnership with First Nation
communities is successfully running the 'Community Cadet Corp Program'. The
Hobbema Community Cadet Corp website outlines the reason for, and value of, this
program:
Several community consultations confirmed that many youth are
susceptible to the gang and drug lifestyle due to their desire for an identity
that they can be recognized with--whether positive or negative. The increase in
gang and drug activity is an expected phenomenon when culture, language and a
sense of pride in the family, school and community begin to erode. This
problem, especially in First Nations communities, has taken years to evolve and
involves a number of dynamics that are beyond what the police can expect to
significantly influence. While this is true, as service provider and leading
organization in the community, the Police (Royal Canadian Mounted Police) need
to be seen to contribute to the health and safety of the community by providing
positive alternatives and safety for the youth at risk.
One alternative the Hobbema RCMP implemented is the
development of a First Nations Community Cadet Corps Program that is incentive
based and closely associated with the schools, community leaders and the RCMP. The
Cadet activities are specifically tailored to the needs and concerns of the
native reserve youth with a strong emphasis on native culture, language,
education, sports and a healthy lifestyle. The goals and objectives of the
Program are to prepare the youth for future leadership positions and challenges
by mentoring the youth through positive attitudes and social development skills
provided by culturally sensitive role models. The priority of the Program is
directed to the development of the youth with the assistance of their families,
school, community leaders and the Police.[27]
2.67
Senior Deputy Commissioner Sweeny told the Delegation that over 1000
youth, across a number of communities, are now involved in this program, which
has been so successful that it is now also being run in Jamaica.
Peace Bonds
2.68
The Delegation heard from both Mr Bill Bartlett from the Department of
Justice and Mr Don Beardall, from the Public Prosecution Service of Canada,
about the successful use of Peace Bonds to break the link of 'lower' level gang
members to a criminal gang. Peace Bonds were originally developed to tackle
domestic violence, and were extended to criminal gangs in 1997. The bonds may place
a range of restrictions on individuals who are suspected on reasonable grounds to
be likely to commit a criminal offence.
A Peace Bond is a promise, enforceable under the Criminal
Code of Canada, to keep the peace and be of good behaviour and to obey all
other terms and conditions ordered by a Judge or Justice of the Peace (“JP”),
for period of up to twelve (12) months. Judges and JP’s may impose reasonable
conditions on those who are subject to the Peace Bond, for example: restrictions on contact with other persons, restrictions on attending certain
places, restrictions on possessing firearms and ammunition.[28]
2.69
Mr Beardell indicated that Canada had successfully used peace bonds with
'junior' members of street gangs by placing preventative and rehabilitation
components in the orders, such as attendance at educational or diversion
programs, or non-contact with senior gang members. However, Mr Beardell
cautioned that this approach should not be used if police do not have adequate
resources to enforce and monitor the peace bonds once ordered.
United States of America
2.70
The Delegation spent a day in Washington D.C. holding discussions with
senior officers and subject matter experts from the Federal Bureau of
Investigations and the Department of Justice. Discussions covered both the
extent and nature of organised crime, as well as key legislative approaches to
combat it. The Delegation was interested to learn that the United States of
America (US) has approximately 18,000 law enforcement agencies.
2.71
The following section provides some background on the agencies with which
the Delegation met, the nature of organised crime in the US, key US legislation
targeting organised crime and discusses the key issues and findings from the
Delegation's Washington meetings.
United States Organisations with which the Delegation met
The Federal Bureau of
Investigations[29]
2.72
The Federal Bureau of Investigations (FBI) is the United States' key
federal agency responsible for tackling, among other things, serious and
organised crime. The FBI's stated mission is:
To protect and defend the United States against terrorist and
foreign intelligence threats, to uphold and enforce the criminal laws of the
United States, and to provide leadership and criminal justice services to
federal, state, municipal, and international agencies and partners.
2.73
The FBI's priorities are to:
- Protect the United States from terrorist attack
- Protect the United States against foreign intelligence operations
and espionage
- Protect the United States against cyber-based attacks and
high-technology crimes
- Combat public corruption at all levels
- Protect civil rights
- Combat transnational/national criminal organizations and
enterprises
- Combat major white-collar crime
- Combat significant violent crime
- Support federal, state, local and international partners
- Upgrade technology to successfully perform the FBI's mission
Delegation Members with
senior officer of the Federal Bureau of Investigation, Washington, D.C.
2.74
As of 31 December 2008, the FBI had a total of 31,676 employees. This includes
12,977 special agents and 18,699 support professionals, such as intelligence
analysts, language specialists, scientists, information technology specialists,
and other professionals.
2.75
In the fiscal year 2008, the FBI’s total budget was approximately US$6.8
billion (AU$8.6 billion), including US$410 million (AU$518 million) in program
enhancements for intelligence, counterterrorism, laboratory, information technology,
and cyber security.
2.76
The FBI has a dedicated Organized Crime Section which is divided into
three units devoted to: La Cosa Nostra, Italian organized crime and
racketeering; Eurasian/Middle Eastern organized crime; and Asian and African
criminal enterprises.
2.77
The FBI is tasked with the overall coordination and support of all
organised crime investigations. Each of its 56 field offices investigates
criminal enterprises within its own territory and relies on headquarters for
additional support. The FBI also participates in joint task forces with other
federal, state, and local law enforcement agencies.
United States Department of Justice[30]
2.78
The United States Department of Justice was established by statute in
June 1870, and is headed by the Attorney-General. The Department's mission is:
To enforce the law and defend the interests of the United States
according to the law; to ensure public safety against threats foreign and
domestic; to provide federal leadership in preventing and controlling crime; to
seek just punishment for those guilty of unlawful behaviour; and to ensure fair
and impartial administration of justice for all Americans.
2.79
There are 40 separate components or divisions to the Department. These
include the United States Attorneys, who prosecute offenders and represent the
United States Government in court; the major investigative agencies which
prevent and deter crime and arrest criminal suspects are;
- the Federal Bureau of Investigation,
- the Drug Enforcement Administration,
- the Bureau of Alcohol, Tobacco, Firearms and Explosives,
- the United States Marshals Service, which protects the federal
judiciary, apprehends fugitives, and detains persons in federal custody; and
- the Federal Bureau of Prisons, which confines convicted
offenders.
2.80
The Department's headquarters are in Washington, D.C., although much of the
Department's work occurs in offices located throughout the country and
overseas.
The nature of organised crime in
the United States
2.81
Mafia type organisations have a significant and historic involvement in
organised crime in America. The FBI reported that there are several mafia groups
currently active in the US: the Sicilian Mafia; the Camorra or Neapolitan
Mafia; the ’Ndrangheta or Calabrian Mafia; and the Sacra Corona Unita or United
Sacred Crown.
2.82
It is estimated that, worldwide, these four groups have approximately
25,000 members, with 250,000 affiliates. There are more than 3,000 members and
affiliates in the US, scattered mostly throughout the major cities in the
Northeast, the Midwest, California, and the South. Their largest presence
centres around New York, southern New Jersey, and Philadelphia.[31]
However, as in Australia, the influence of trans-national organisations is
changing the criminal landscape.
2.83
The FBI reported that the following groups have a significant presence
in the US or are targeting American citizens via the Internet and other
technologies:
- Russian mobsters who fled to the US in the wake of the Soviet
Union’s collapse;
- Groups from African countries like Nigeria that engage in drug
trafficking and financial scams;
- Chinese tongs, Japanese Boryokudan, and other Asian crime rings;
and
- Enterprises based in Eastern European nations like Hungary and
Romania.[32]
2.84
Mr Matt Desarano, Unit Chief of the Gang Unit, FBI, also identified
three types of 'domestic' criminal gangs, each with sizeable membership:
- Streets Gangs – membership: 790, 000 – 842,000
- Prison Gangs – membership 110,000 – 144,000
- OMCG – membership 30,000 – 41,000
2.85
The impact of organised crime in the United States is significant. The
economic impact of global organised crime is estimated at around US$1 trillion
per year of illegal profits.
Key United States legislation
targeting organised crime
Criminal law
Organised Crime Control Act 1970
(OCCA)
2.86
The OCCA defines organised crime as 'the unlawful activities of...a highly
organised, disciplined association...'. The Act creates various offences related
to management of a gambling business in an attempt to target the businesses
associated with organised crime in the US.
2.87
The purpose of the OCCA is:
...to seek the eradication of organized crime in the United
Stated by strengthening the legal tools in the evidence-gathering process by
establishing new penal prohibitions, and by providing enhanced sanctions and
new remedies to deal with those engaged in organized crime.
2.88
The OCCA has thirteen parts, one of which (section 901A) is commonly
called the Racketeer Influence and Corrupt Organizations Act 1970 (RICO
Act), and forms Chapter 96 of Title 18 of the United States Code. In addition
to introducing the RICO Act, the OCCA contains provisions which:
- permit courts to order the detention and fining of witnesses who
refuse, without good reason, to comply with court or grand jury orders or
providing false information
- strengthen perjury laws, so that witnesses can be tried for
perjury based solely on contradictions in their testimony
- limit the ability of witnesses to refuse to testify on the basis
that their testimony may incriminate them
- give the Attorney-General the ability to protect witnesses
- establish crimes related to running illegal gambling businesses,
including protecting an illegal gambling business by obstructing state law, and
using income from organised criminal activity to run a business engaged in
interstate commerce
- establish certain types of bombing and arson as federal crimes.
Racketeer Influence and Corrupt
Organizations Act 1970 (RICO Act)
2.89
RICO provides for extended penalties and a civil cause of action for
criminal acts performed as part of an ongoing criminal organisation. The RICO
Act created four new offences:
- section 1962(a) criminalises the investment of the proceeds of a
pattern of racketeering or collection of an unlawful debt in an enterprise
affecting interstate commerce
- section 1962(b) criminalises acquiring or maintaining an interest
in an enterprise through a pattern of racketeering activity or collection of an
unlawful debt (e.g. using arson to pressure owners into selling out)
- section 1962(c) criminalises conducting the affairs of an
enterprise through a pattern of racketeering activity or collection of an
unlawful debt (e.g. a car dealer who uses the business to assist a stolen car
ring)
- section 1962(d) criminalises conspiring to commit any of the
above three offences.
2.90
A 'pattern of racketeering activity' is defined as the commission of two
or more predicate offences which includes extortion, theft, drugs and fraud,
within a ten year period. The Act enables the Federal Department of Justice to
use otherwise state-based crimes as predicate offences in any Federal Court.
2.91
The penalty for racketeering is a maximum of 20 years imprisonment
and/or a fine of US$250 000 (AU$316 000). In addition, a convicted person must
forfeit all ill-gotten gains.
2.92
In addition to proving the predicate offences under whichever
legislation criminalises those activities, prosecutors must also prove that:
- the individuals are associated with one another
- the predicate acts are related, and occurred within a ten year
period, and
-
the criminal acts have some impact on interstate commerce (e.g.
withdrawing money from an interstate bank account).
2.93
With regard to the conspiracy offence, there is no requirement of an
overt or specific act. So long as they share a common purpose, conspirators are
liable for acts of their co-conspirators.
2.94
Therefore RICO aims to disrupt enterprise-oriented criminal activity.
'Enterprises' can be criminal organisations or legitimate businesses,
individuals, partnerships, corporations, associations, other legal entities, or
people who don't form a legal entity but 'are associated in fact'.
2.95
The RICO laws are unique in that they also allow private parties to sue
'racketeers' for damage to their business property. If successful, the court
may award triple damages to the business owner.
Proceeds of crime laws
2.96
Under the RICO Act the Attorney-General may seek a restraining order to
temporarily seize the assets of a person who has been charged under the Act.
2.97
The Civil Asset Forfeiture Reform Act of 2000 also created a
civil forfeiture regime under which the assets of persons under investigation
for, being tried for or convicted of a large number of offences may be frozen
or confiscated by the government.
Key issues and findings
Racketeer Influence and Corrupt
Organisations Act 1970
2.98
Much of the Delegation's discussions in the United States focused on the
RICO laws.
2.99
The Delegation met with Mr Matt Herron, Section Chief of the Criminal
Investigation Division, FBI. In an interview, Mr Herron outlined the value of
RICO to tackling criminal organisations:
RICO stands for Racketeering Influence and Corrupt
Organization statute. And basically it is legislation that enables us to attack
a criminal enterprise as opposed to just individual members of the organization... what we do is we will open up a RICO case on a particular group, and instead
of charging maybe one or two or three individuals for committing an assortment
of crimes, we can identify the organization itself as a criminal enterprise.
And as long as they are engaged in predicate acts that fall within the RICO
statutes, we will charge that and basically take out the entire leadership of
an organization as opposed to an individual or two.[33]
2.100
US Department of Justice officials told the Delegation that the RICO
legislation has been highly successful. In part, its success is based on the
fact that law enforcement can more readily make a case against a criminal
enterprise than the individuals at the top of the structure running the
enterprise. Additionally, the Delegation heard that the evidential burden required
to establish racketeering activity is so high that members of the criminal
enterprise, once identified, would readily give evidence.
2.101
Prior to leaving Australia, delegation members were aware that many
Australian commentators felt that the legislation was complex and that cases
prosecuted under it were lengthy. However, the Delegation was informed that as
the legislation has been in operation in the US for a substantial period of
time, law enforcement and prosecution services are now familiar with its
operation and have little or no difficulty with the statue.
2.102
Under RICO the Attorney-General may seek a restraining order to seize temporarily
the assets of a person who has been charged under the Act. Department of
Justice officers highlighted the ability under the RICO legislation to
successfully obtain, on a conviction, all assets of the criminal enterprise,
including those used in the commission of the offence. The RICO laws are also unique
in that they allow private parties to sue 'racketeers' for damage to their
business property. If successful, the court may award triple damages to the
business owner.[34]
Confiscation of the proceeds of
crime [35]
2.103
As in other jurisdictions, non-conviction-based, civil asset confiscation
laws are increasingly viewed in the US as an effective tool for disrupting and
dismantling serious and organised crime. The Delegation was informed that the
new Attorney-General, Mr Eric Holder, has changed the emphasis of federal
justice, prosecution and law enforcement agencies to provide a greater emphasis
on civil remedies.
2.104
Non-conviction-based, civil confiscation laws involve in rem
actions, meaning that the property is the subject of judicial proceedings, as
opposed to a person. This means that no conviction is required or recorded, the
civil burden of proof is used (the balance of probabilities) as opposed to the
criminal burden (beyond reasonable doubt), and a judgment is enforceable
against the property not the person so that it remains enforceable even if the
property is transferred to another person after the judgement. In the US this
approach has already resulted in the confiscation of a number of illegally
funded businesses.
2.105
As noted at paragraph 2.97, the Civil Asset Forfeiture Reform Act of
2000 creates a civil, non-conviction-based forfeiture regime under which
the assets of persons under investigation for, being tried for or convicted of
a large number of offences may be frozen or confiscated by the government.
2.106
The Delegation was told that approximately US$1billion (AU$1.26 billion)
are seized under these provisions each year. The Comprehensive Crime Control
Act of 1984 established the Department of Justice Assets Forfeiture Fund to
receive the proceeds of forfeiture and to pay the costs associated with such
forfeitures, including the costs of managing and disposing of property,
satisfying valid liens, mortgages, and other innocent owner claims, and costs
associated with accomplishing the legal forfeiture of the property. The Attorney-General
is authorised to use the Assets Forfeiture Fund to pay any necessary expenses
associated with forfeiture operations such as property seizure, detention,
management, forfeiture, and disposal. [36]
2.107
The Fund can also be used to finance certain general investigative
expenses. Department of Justice officials highlighted the value of the Fund to
support joint law enforcement operations and enhance cooperation between the
various police jurisdictions. Expenses and various costs incurred by state and
local law enforcement officers participating in joint law enforcement
operations with a federal agency can be covered by the Fund. The Delegation
heard that approximately US$30 million (AU$38 million) is provided each year to
law enforcement to conduct electronic surveillance, and US$27 million (AU$34
million) is provided to support the Safe Streets, Gang Unit.[37]
Technology and telecommunications
access
2.108
Officers from the Department of Justice highlighted the importance for
law enforcement to be able to intercept telecommunications in order to conduct
electronic surveillance. The Delegation heard that before any
telecommunications provider can roll-out services they must provide 'backdoor'
access for law enforcement.
2.109
The Communications Assistance for Law Enforcement Act 1994 (CALEA)
is a United States statue which provides for this. The purpose of CALEA is:
To amend title 18, United States Code, to make clear a
telecommunications carrier's duty to cooperate in the interception of
communications for Law Enforcement purposes, and for other purposes.
2.110
CALEA enhances the ability of law enforcement and intelligence agencies
to conduct electronic surveillance by requiring that telecommunications
carriers and manufacturers of telecommunications equipment, modify and design
their equipment, facilities, and services to ensure that they have built-in
surveillance capabilities. A paper from the Congress Research Service notes:
The Communications Assistance for Law Enforcement Act (CALEA,
P.L. 103-414, 47 U.S.C. 1001-1010), enacted October 25, 1994, is intended to
preserve the ability of law enforcement officials to conduct electronic
surveillance effectively and efficiently despite the deployment of new digital
technologies and wireless services that have altered the character of electronic
surveillance. CALEA requires telecommunications carriers to modify their
equipment, facilities, and services, wherever reasonably achievable, to ensure
that they are able to comply with authorized electronic surveillance actions.[38]
2.111
In the years since CALEA was passed it has been modified to include all
VoIP and broadband internet traffic. However, the Delegation was told that
criminal organisations have sought to evade surveillance of their
telecommunications by developing their own broadband internet system using
wireless servers.
Corruption
2.112
While not canvassed extensively, some discussion covered the issue of
public service and political corruption. The Delegation heard that organised
crime protects its business through violence, corruption or both. It was
suggested that in the US established criminal groups are politically well-connected
and that as a business becomes more sophisticated a group will target
individuals in high public office.
Conclusions
2.113
The Delegation's discussions with Canadian and US law enforcement agencies
were extremely useful. The key issues arising from the discussions that are of
relevance to Australia's consideration of legislative arrangements to combat
serious and organised crime include:
(a) The importance of taking a holistic approach to fighting organised
crime. This must include:
- appropriate investigative powers for law enforcement, including
the capacity to intercept telecommunications,
- strong proceeds of crime confiscation laws, with civil burdens of
proof, removing the motive for criminal activity and preventing criminal assets
from being used to commit further crimes,
- the development of criminal laws which target high-level
individuals within organised crime groups,
- social intervention to prevent the involvement of young people
in, and development of, low-level street gangs; and
(b) The pressing need for national, regional and international intelligence
sharing and coordination amongst law enforcement agencies, with appropriate mutual
legal assistance arrangements to accommodate this.
2.114
The Delegation appreciates the frankness of discussions and the
hospitality it received from the North American organisations with which it
met.
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