Criminal Organization

Being convicted of an organized crime offence can lead to a lengthy prison sentence. It is important to have a professional on your side who can vigorously defend your case.

What is a criminal organization?

A criminal organization is broadly defined under Section 467.1(1) of the Criminal Code of Canada. A criminal organization means a group, however organized, that:

• Is composed of three or more persons either in or outside of Canada; and
• Has as one of its main purposes or main activities the facilitation or commissions of one or more serious offences, that if committed, would likely result in the direct or indirect receipt of a material benefit, including financial benefit by the group or any persons who constitute the group.

A criminal organization does not include a group of people that randomly form for the immediate commission of a single offence. It is only when three or more people come together to plan and commit criminal offences for their benefit that they will be considered a criminal organization, such as gangs that deal in drug trafficking. You also do not have to be an actual member; if you participate in an activity for the purpose of enhancing their ability to commit crimes or if you commit a criminal act that benefits such an organization, you can still be charged.

There are four different charges related to criminal organizations. You are prohibited from participating in activities of criminal organizations, recruiting members for a criminal organization, committing an offence for a criminal organization, or instructing people to commit offences for criminal organizations. These offences are found in section 467.11 of the Criminal Code and following.

Arrest and bail:

When you are arrested, officers must tell you of your right to counsel. This right allows you to speak to and retain a lawyer following arrest. It is always a good idea to exercise this right and obtain legal advice before speaking to police.

Due to the seriousness of these offences, you will likely be held for bail.  You will be brought in front of a judicial official within 24 hours of your arrest. Not only will a lawyer tell you what to do and what not to do when interacting with police, they can also start working on your release if you are being held in custody.

Everyone has a constitutional right to reasonable bail with respect to the amount of money sureties pledge and the conditions imposed on you. Reasonableness also includes the fact that you should not be denied bail without “just cause.”

While it is usually the Crown’s responsibility to show why you should be detained, there are some offences, like criminal organization offences, that require you to demonstrate why your detention is not justified..

There are three grounds of detention upon which you can be denied bail. They consider:

• • Whether you are a flight risk (primary ground);
  • Whether you pose a threat to the public (secondary ground); and
  • Whether your detention is required to maintain confidence in the administration of justice (for example, due to the seriousness of the allegations and/or the strength of the Crown’s case) (tertiary ground).

You will need to demonstrate that these grounds are not a concern. The court will look at factors, such as your ties to the community, your personal situation (including the presence of a criminal record), the offence itself, and the strength of a proposed bail plan and adequacy of sureties, when considering these grounds.

As part of considering your release, the court will determine whether conditions should be imposed and what they should be to mitigate concerns, such as ensuring that you attend court and do not commit any further offences. In reverse onus situations, you will need to counter the concerns surrounding the seriousness of the offence and your release, so you will likely need to propose stringent conditions, such as:

• • Supervision through sureties;
  • Curfews or house arrest, including ankle monitoring;
  • No contact with certain individuals; and/or
  • Restrictions on where you can travel.

If you are denied bail, you will remain in custody until your trial or resolution, although it is possible to ask for a bail review at the Superior Court.

Obtaining bail can be an uphill battle, especially when it comes to offences of national importance. Furthermore, being responsible for showing why you should be released can be overly onerous. A lawyer knows what conditions to propose according to the circumstances, and they are in the best position to run a successful bail hearing. As such, hiring a lawyer maximizes your chances of being released.

It is important to recognize that breaching the terms of your bail conditions can result in further charges against you and the revocation of your bail.

Awaiting trial:

Once a bail hearing is conducted, a lawyer can start preparing a successful defence for your case.

The Public Prosecution Service of Canada (PPSC) handles many cases dealing with organized crime, due to the organizations’ ties to the drug trade. The PPSC is Canada-wide and consists of federal Crowns (while most other crimes are prosecuted by provincial Crown lawyers). A lawyer will ask the Crown for the disclosure of all relevant evidence against you. The Crown is obligated to disclose evidence about your case to your lawyer, regardless of whether or not that evidence will be used by the Crown in court. This disclosure is a fundamental feature of our criminal justice system. It helps to ensure that you have a fair trial and that you have the information needed to provide a full answer and defence. Having a lawyer by your side can be an advantage, as there are certain items of disclosure that the Crown will only release to counsel. If you do not have a lawyer, you may have to make arrangements with the Crown to review this evidence, which can be extremely time-consuming.

In some cases, disclosure can include hundreds (and sometimes thousands) of pages of documents, as well as hours of police interviews and surveillance footage. A lawyer will review these documents and can use them to effectively advocate for you.

A lawyer will then take steps to move the case along. Once disclosure is reviewed, a Crown pre-trial (CPT) is typically scheduled. The CPT allows the defence and the Crown to discuss issues in the case, as well as the Crown’s position. The CPT can be a springboard for further discussions and negotiations with the Crown. Depending on the case and how it proceeds, a judicial pre-trial (JPT) may also take place. The JPT allows a judge to weigh in and provide guidance in a more informal setting.

If you have retained a lawyer, you will not be present at the CPT or JPT. A lawyer’s expertise and experience can be invaluable at this stage. If you do not retain a lawyer, you most likely will have more difficulty speaking to the Crown, and your JPT will take place in open court instead of the judge’s chambers. You will be responsible for advocating for yourself, which can be an unnecessary stress added to an already challenging experience.

There can be a number of court appearances before a case is set down for trial or a plea is entered. A lawyer can explain the purpose of these appearances and even appear on your behalf, so you have one less thing to worry about.

If you have been charged with recruitment, committing, or instructing, or if you have been charged with participation and the Crown chooses to proceed by indictment, and the case goes to trial, there will come a time when  you will be asked to make an election regarding your mode of trial. You will have the option of being tried by a provincial court judge, by a judge alone in the Superior Court, or by a judge and jury in the Superior Court. Since commiting and instructing carry with them possible sentences of 14 years or more in prison, you will also be entitled to a preliminary inquiry, which is a sort of mini-trial that determines whether there is sufficient evidence to even hold a trial on the charges. If the judge finds that there is not sufficient evidence, then you will be discharged. Making your election and having a preliminary inquiry are strategic decisions. You will no doubt benefit from the support of a lawyer advising and guiding you through this lengthy and complicated process.

Consequences if found guilty:

Due to the dangerous and insidious nature of organized crime, criminal organization offences are prosecuted aggressively and, in many cases, carry mandatory incarceration sentences. For participation, you could face a maximum sentence of five years in prison if the Crown proceeds by indictment or a maximum sentence of two years less a day and/or a fine of up to $5,000 if the Crown proceeds summarily. For recruitment, you could face a maximum sentence of five years as well as a minimum sentence of six months if the person is under 18 years old. Committing an offence carries a maximum sentence of 14 years in prison. The most serious consequence you could face is life in prison for instructing the commission of an offence. A lawyer can vigorously defend your case and obtain the best possible outcomes in the circumstances.

It’s vital to hire a lawyer

Being charged with organized crime offences is a stressful and tolling experience. It is important to seek professional advice from a lawyer about your rights from the beginning.

A lawyer can also do much more. They can:

• Work to secure your release with the most favourable conditions;
• Help you navigate the criminal justice system;
• Ensure that the Crown meets its disclosure obligations;
• Identify systematic or administrative errors in the criminal process, including Charter rights violations;
• Speak to the Crown on your behalf, negotiate, and advise you of your options;
• Assess all the evidence against you and build a strong defence, so the charges are withdrawn or you are acquitted;
• Gather further evidence to support your version of the events;
• Obtain a more lenient sentence in the event a guilty plea or conviction is entered.

All criminal cases are complex and fact specific. We have provided general information about how organized crime offences are handled. Hiring a lawyer provides your best chance at mounting a successful defence. For more information about how we can help, please contact our team.