Bill C-95, the “criminal organization” amendment to the Criminal Code passed in 1997, has borne its inevitable fruit. Devised to calm the spirits of a fearful nation, the law bent civil liberties into new and fascinating shapes. It created a new offence:
467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Which sounds fair enough, but be sure to check out the convenience-of-the-Crown caveats in subsection (2):
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that
(a) the criminal organization actually facilitated or committed an indictable offence;
(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;
(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or
(d) the accused knew the identity of any of the persons who constitute the criminal organization.
To put it another way, you can conceivably be tried for “participating in or contributing to” a criminal organization even if it didn’t get around to committing any crimes, you didn’t do anything to help it actually commit crimes, you didn’t know what particular crimes it might be thinking of committing, and you couldn’t possibly pick anybody else in the group out of a lineup.
This might seem to make things pretty easy for the police and the prosecutors. Nonsense! According to them, their job can never be easy enough. Like farmers and civil servants, they cease complaining only intermittently to inhale oxygen, and there is no shortage of Joint Multi-Level Integrated Discussion Committees before which they can retail their grievances. C-95 proved pretty hard to apply because the courts require the criminal-ness of any “criminal organization” to be proven anew for each trial of its members, and everybody in the justice system is reluctant to fix this by creating an official statutory list of “criminal organizations”, for fairly obvious reasons (a group added to such a list could just change its name, insignia, and totems, and members of criminal groups not yet added could conceivably use such an omission in their own defence).
So the crime-obsessed Conservative government, looking for other ways to make the law more easily applicable, has stepped back and taken a look at the definition of a “criminal organization”:
467.1 (1) “criminal organization” means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
There would seem to be some protection for the citizenry there: the broad, pulverizing apparatus of the “criminal organization” bill is available for use only against groups of people engaged in “serious offences”. Until now a “serious offence” had been defined as “an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more”, but the government of the time, perhaps never considering that it could be supplanted in the people’s affections, allowed for more offences to be added to the list by Order-in-Council without the consent of Parliament.
This possibility, now realized, raises the natural question of how we should define a “serious offence”. Justice Minister Nicholson, in introducing the new schedule of patently less serious and mostly victimless “serious offences” on Wednesday, offered a dazzlingly simple heuristic: “The fact that an offence is committed by a criminal organization makes it a serious crime.” You will note that this introduces a curious logical circularity into our manner of upholding justice. How does the law define a “criminal organization”? See above: a criminal organization is a group of people that bands together to commit serious crimes. How do we know what a serious crime is? It’s any activity that is characteristic of criminal organizations. What, you thought Catch-22 was fiction?