The term “organized crime” is referenced a lot in the media, whether it be in news reports or films and television series, but what exactly does it refer to, and what sort of conduct is captured by the term from a legal perspective? What’s the difference, if any, between a “criminal organization” and a criminal “gang”?
How is “Criminal Organization” defined in Canada?
The term “Criminal Organization” is defined by Section 467.1 of the Criminal Code and has two main criteria.
- The organization must be comprised of three more individuals (the individuals may be inside or outside of Canada); and
- The organization must have as one of its main purposes or activities the facilitating or commission of more than one “serious offence” which, if committed, would garner the organization in question some material or financial benefit.
A group of people who have organized themselves randomly in order to perpetrate a single crime will not be considered an example of “organized crime”. As for the meaning of “serious offence”, that is further defined in the section as an indictable offence that carries with it a prison term of at least five years.
A “gang” could be considered a criminal organization if it falls within the above definition. A key consideration would be whether the gang derived any material or financial benefit as one of its main purposes. As a hypothetical example, a biker gang that took part in a violent crime (such as series of beatings against individual members of a rival gang) that had no financial or material benefit resulting from the criminal activity might not be considered an example of “organized crime” as a result.
As is so often the case, the definitions aren’t always so cut and dry. For example, who is to say what a “main purpose” of the organization is, particularly if the section allows for the possibility that an organization can have more than one purpose? The case R v. Howe provides an example of the methodology the courts will use in determining whether an organization falls within the definition under the Criminal Code.
Threats, Harassment and Intimidation
The Howe case concerned a biker gang in Nova Scotia called the Bacchus Motorcycle Club (“BMC”), three members of which were charged with harassment, threatening to cause bodily harm, extortion, and intimidation committed in association with a criminal organization. One of the victims of the alleged criminal activity was a man (“SH”) who had created his own fictitious motorcycle club for fun and was its only member. SH had a patch designed which included a name, a logo, and an indication that the club was based out of Nova Scotia. SH was contacted by a member of the BMC club via email who threatened him if he did not disclose the location of his club’s clubhouse.
Another alleged victim, “RM”, attempted to start his own motorcycle club. He was dissuaded from doing so by members of BMC. RM then tried to start a local chapter of another motorcycle club based in Montreal. RM received approval from that club to do so, but shortly afterwards the three accused members of BMC approached RM and demanded that he destroy the motorcycle vests of the Montreal-based club and produce the destroyed remains to prove that he had done so. RM was threatened, harassed, extorted and intimidated by the accused, who demanded that RM never ride a motorcycle again nor attend any motorcycle events in Nova Scotia. RM complied, selling his motorcycles and never riding again.
Determinging the Main Purposes or Activities
That both SH and RM were separately threatened by the accused BMC members was key as it meant more than one incident had occurred and potentially put BMC in the scope of the definition of “organized crime”. But the question for the judge was whether the BMC gang had a main purpose of committing serious offences which would likely result in a direct or indirect material or financial benefit. Only then would the three accused, as members of BMC, be considered guilty of carrying on organized crime.
Based on the evidence presented, the judge noted that from 2001 to 2013 (which includes the period that the threats were made to SH and RM), the BMC was virtually the only, and clearly the dominant motorcycle club in the Atlantic provinces. He concluded, using SH and RM as examples, that “one of the main purposes of the BMC was to maintain its territorial dominance in the motorcycle club milieu in the Atlantic provinces, and in support of that purpose, one of the main activities of the BMC was ensuring, through the commission of serious offences, that it protected its reputation for violence.”
Regional Dominance Considered a Material Benefit
Effectively, the judge was of the opinion that the BMC club, by threatening others with violence if they started up a new club or started a chapter of another club there, gained a material and financial advantage by remaining the dominant club in the region. The judge reasoned that by maintaining its reputation for violence (or quickly resorting to it), the club would ensure its merchandise would be sold in greater quantities, making its fundraising efforts more lucrative.
It is important to note that there can be more than one “main purpose” to an organization in the eyes of the courts, as paradoxical as this may sound. Further, there is a distinction in the Criminal Code between “purposes” and “activity”. Either term can qualify a gang or organization as a criminal one for the purposes of being charged under the section. The criteria used by the judge in the Howe case was that the purpose or activities don’t have to be predominant in terms of quantity to be considered “main” in terms of quality.
That is to say, the importance of the purpose or the activity to the organization’s members will determine whether it is a “main” purpose or activity. To quote the judge in this case:
“An important purpose or activity will be one in which the members of the group, individually or collectively, have invested significant efforts. The nature and degree of effort invested in the purpose or activity will be a telling marker whether the purpose or activity is a “main” one.”
In the judge’s eyes, the nature and extent of the intimidating and threatening activities by the three members of BMC to actively dissuade others from starting their own clubs were a tell-tale sign of how important this activity was to the accused, and all three members were convicted.
Contact Hicks Adams LLP in Toronto for Representation on Charges of Organized Crime and Criminal Harrassment
A determination of “main purposes” or “main activities” will be very fact-specific and open to interpretation, making it highly important that one has the best legal representation to advocate for you should you be charged with organized crime. Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, We defend individuals charged with a variety of offences, including those charges involving organized crime and gangs.
Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.