THE STANDING SENATE COMMITTEE ON LEGAL AND
OTTAWA, Thursday, May 15, 2014
The Standing Senate Committee on Legal and
Constitutional Affairs, to which was referred Bill C-394, An Act to amend
the Criminal code and the National Defence Act (criminal organization
recruitment), met this day at 10:30 a.m. to give consideration to the bill.
SenatorBob Runciman (Chair)
in the chair.
The Chair: Good day. Welcome colleagues,
invited guests and members of the general public who are following today's
proceedings of the Standing Senate Committee on Legal and Constitutional
Today we are continuing our study on Bill
C-394, An Act to amend the Criminal Code and the National Defence Act
(criminal organization recruitment). This bill amends the Criminal Code to
make it an offence to recruit, solicit, encourage, coerce or invite a person
to join a criminal organization. It establishes penalties for that offence
and more severe penalties for the recruitment of persons under 18 years of
age. This is our third meeting on the legislation.
Our first witness is appearing from video
conference from Niagara Falls, Ontario. He is a witness who appeared on a
number of other occasions. Please welcome Tom Stamatakis, President Canadian
Mr. Stamatakis, I believe you have an opening
statement. Please proceed.
Tom Stamatakis, President, Canadian Police
Association: Good morning, honourable senators. It's my pleasure to be
joining you again today regarding Bill C-394, the proposed criminal
organization recruitment act. I know most of you are quite familiar with our
organization by now, but, for the record, the Canadian Police Association is
the voice for over 54,000 front-line civilian and sworn police personnel
across Canadian, and I'm joining you this morning on their behalf.
The CPA endorses Bill C-394 and congratulates
the honourable member from Brampton-Springdale for originally introducing
the bill as well as Senator Plett, who, as I understand it, has been
shepherding this legislation through the Senate process. It's important for
me to note that the original sponsor of the legislation, as I mentioned, the
member for Brampton-Springdale, engaged in extensive consultation with the
law enforcement community before drafting this bill, including the members
of Peel Regional Police Association and the Winnipeg Police Association. Our
members appreciate the opportunity to help craft legislation that seeks to
provide the tools necessary for front-line police personnel.
With respect to the bill itself, as the law
enforcement community knows well, gangs have an extremely vested interest in
recruiting young members. There are two principal reasons for that: First,
as I'm sure you are all aware, these criminals know well that the penalties
imposed by the courts on young offenders are remarkably more lenient than
adults will receive; and, second, gangs only work when there is a constant
stream of new recruits to replace those whom law enforcement has managed to
incarcerate or who have fallen victim to the realities of gang violence
prevalent on the streets of our cities.
Ask any police officer across the country and
they can provide heartbreaking stories of children 14 years and younger who
are being coerced by a variety of means, from addiction to violence, to
those who simply prey on that very teenage need to fit in; and who are now
facing or have been convicted on charges as serious as assault or murder.
Just dealing with those recruitment methods would be challenging enough for
law enforcement today, but that does not begin to address a factor that
seems to be on the increase now across the country, namely,
multigenerational gang recruitment. Fathers and uncles recruiting sons and
nephews to carry on this new style of family business is another example of
why we need every tool possible at our disposal.
That being said, no single legislative tool
will fully address the problem of youth involvement in criminal
organizations, but I will take a moment to toot our own horn and shed light
on some of the pioneering work done by law enforcement. This shows that our
approach is far more sophisticated than to lock them up and throw away the
For example, in 2012, the Children's Hospital
of Eastern Ontario recognized the efforts of Ottawa police, who have
established the Police Athletic League which provides competitive sports
leagues and tournaments for 800 children and youth from ages 6 to 16 who
could not otherwise afford competitive sports. The program fosters skills
and leadership development and comes with the traditional expectations of an
organized sports league such as an awards night, uniforms and trained
officials. Police provide mentorship at awards banquets, games and
practices. Our officers recognize the need for us to provide alternatives to
the promises made by gang recruiters. Law enforcement agencies from across
the country are going above and beyond to meet this challenge.
Of course, we cannot comprehensively discuss
this issue without recognizing that the efforts made by law enforcement to
combat youth involvement in organized crime require investment and
additional resources. Programs such as the one I mentioned often rely on the
volunteers, who are found — our officers are always ready to answer the call
— but there are only so many hours in the day and only so many bodies
available to provide the manpower necessary.
We can't simply rely on volunteers and goodwill
to take on organized crime in Canada. We need to ensure our parliamentarians
recognize that when new legislation is introduced and passed, even
legislation that is wholeheartedly supported by politicians across the
political spectrum, these new provisions don't exist in a vacuum.
Investments and law enforcement are necessary to see the proliferation of
programs such as the Ottawa police athletic league and others like it across
Honourable senators, I want to keep my opening
remarks brief this morning to allow as much time for questions as possible.
I conclude with this: The key word to focus on with organized crime is
"organized." The leadership of these organizations is often quite
sophisticated, often to our collective surprise. They know the laws and,
more importantly, they know and exploit the loopholes. Bill C-394, which you
are considering today, helps to close, or at least tighten, one of those
I understand that some honourable senators, as
did some members in the House of Commons, had a philosophical opposition to
the concept of mandatory minimum sentences included in this bill, but I urge
you all to consider this legislation more through the prism of the number of
youth we lose annually to these criminal gangs and how we can provide law
enforcement the tools necessary to stop that flow.
Senator Plett: Welcome, Tom. It's nice to
see you here again and taking part in this.
I'm sure you're aware that we had your
colleague and our good friend George VanMackelbergh here yesterday
testifying. One of the comments he made was that gangs recruiting children
are predatory in nature. Would you agree and would you maybe elaborate on
that a bit?
Mr. Stamatakis: Absolutely, that's a very
apt description of the activity. They isolate kids who are vulnerable, kids
that don't have support, whether it's peer support in the schools or whether
it's support in the home because of the family situation. They seek them out
and entice them into organized crime activity with the lure of sometimes
money, sometimes drugs, sometimes just attention. These are kids who are
often craving attention and will get it from wherever it comes.
Senator Plett: In your closing comments you
alluded to the opposition that some people have toward mandatory minimums.
We hear that over and over again and we will hear that again later today.
But mandatory minimums, of course, are not
exclusive to this government. It is a long-standing tradition to have
mandatory minimums for crimes that are particularly heinous and offensive. I
can't imagine a crime more heinous or offensive than recruiting a 10-, 11-
or 12-year-old boy or girl into a gang to do the crime for adults because
they will not receive any punishment. Of course, this bill does not seek to
punish children; it seeks to punish those who are recruiting them.
Would you agree that this has to be one of the
most heinous and offensive crimes that we have when we recruit these young
people in to do our dirty work for us?
Mr. Stamatakis: I absolutely agree with
you. I don't have any empathy at all for people who are engaged in that
activity. There are so many reasons why it's appropriate to have significant
and serious consequences for people who are recruiting young kids into
crime. Even in some of my other appearances where we were talking about the
cost of policing, these are kids who are recruited into crime; they become
people we deal with all the time. It not only victimizes the child who can't
make an informed decision but it also victimizes their families. The child
often goes on to become a pretty prolific offender so we're generating
victims all across our society and in the communities that we serve.
When you talk about crime prevention and trying
to get ahead of some of the issues that drive cost, the best way to engage
in preventive proactive activities is to stop this ability for these people
to recruit new people into their criminal organizations.
Senator Jaffer: Thank you very much once
again for your presentation. We always look forward to hearing from you.
When I was a young lawyer, the first thing that I was taught was that you
don't put a person in jail and throw the keys away, and I was really pleased
that you spoke about that. We know that young people who are vulnerable and
looking for attention and looking for a place are the easiest people to be
recruited. You did talk about prevention. I do understand your members' time
is limited so I don't expect your members to be doing it, but how are you
encouraging all of us to look at prevention programs?
Mr. Stamatakis: From a policing
perspective, I think police organizations across the country, as I alluded
to in my comments, have recognized the need to engage with youth. I used one
example, the Ottawa Police Athletic League. Those kinds of organizations,
athletic leagues organized by the police, are now prevalent across the
country from coast to coast. These are opportunities for police officers to
engage with these vulnerable youth in a more positive environment so we're
not dealing with them after they've committed the crime; we're trying to
engage with them before they enter into that lifestyle.
There are many other organizations and
communities where the police participate but where other community members
participate. They are peer-based. The research now tells us that peer-based
programs work a lot better than having an older person lecturing a kid about
what they should or shouldn't do. I sit on the board of an organization in
Vancouver called the Odd Squad, which is made up of police officers and
other people in the community who try to educate youth around the risks of
crime through the use of peer-based video.
Police organizations across the country have
officers embedded in schools so they are working with the education system
to create programs that provide support to the most vulnerable kids. We will
typically identify in collaboration with the school system who those kids
are and then try to provide them with positive support so that they make
better choices and are not as vulnerable to attack.
Senator Jaffer: Senator Dallaire is the
critic of this bill and I will quote him: "We also see that a
disproportionate number of gang recruits are Aboriginal youth. Many of them
have spent their lives fighting a losing battle against the social systems
that hold them back from achieving their goals. Aboriginal youth are
disproportionately affected by these factors."
Do you agree with this statement and do we need
to do more? We know for a fact that there is an overrepresentation of
Aboriginal people in the prisons. I was in Winnipeg and I saw what was
happening there, so there certainly is an issue of protecting our young
Aboriginal youth. May I have your comment on that?
Mr. Stamatakis: I agree. With respect to
the specific bill, Bill C-394, we are not targeting the vulnerable kids that
we're talking about. This is about creating a consequence for those who will
prey on those kids and creating a measure of accountability in our society
when people engage in those activities. I couldn't agree more, we need to do
more to support kids, particularly kids from vulnerable groups — the
Aboriginal community, our newcomer populations, and especially in the larger
cities across the country — but at the same time this is another tool that
will help particularly the police prevent those vulnerable kids from being
Senator Jaffer: With the greatest of
respect, I read the bill; I know who we are looking at; but my challenge is
that we are not targeting the bad gang leader members. It could be the small
recruiters, the young people who are forced into recruiting that we will be
sending to the university of crime. My concern is that that's what this bill
will trap. That's my concern; who are we looking at? It won't bring in the
seasoned recruiter or gang member. The evidence we've heard is that it's the
young person who is recruiting another young person.
Mr. Stamatakis: I guess I would have a
different perspective. We are creating a piece of legislation; there will
still be an onus on the police to establish beyond a reasonable doubt that a
person is engaged in these activities. Sometimes the best way to interrupt
behaviour that we know is damaging to our community is to intervene and in
appropriate circumstances pursue a criminal charge. We have other mechanisms
in our criminal justice system to deal with youth who perhaps themselves
were vulnerable and where there is a possibility to intervene and do
Those are the kinds of decisions that police
officers make every day with respect to how they apply their discretion
around enforcing Canada's laws.
Senator Jaffer: I imagine you are talking
about the diversion programs. I agree you and the Crown use those, but with
mandatory minimums that's not possible. That's the challenge.
Senator McIntyre: Critics of the bill have
already told us that it is not necessary, the reason being that the
legislation is already covered under other sections such as 467.11, 467.12
and 467.13. I'm sure you're very familiar with those sections. Currently,
the Code covers the criminal organization part, but it does not cover the
recruitment part. Therefore, as I understand it, the reason for creating a
separate offence is to bring clarity to the legislation. To me, that's what
it's all about. Are you in agreement with this?
Mr. Stamatakis: I agree with you
completely. It makes it clearer, and this is a more narrowly focused
provision that I think will be a useful tool for frontline police officers.
To speak to the earlier concern, police
officers use their discretion every day. My background is as a frontline
police officer. Say I came across a vulnerable child who was lured into some
kind of activity where they are now recruiting; police officers in this
country apply their discretion every day to deal with those situations. I
think this bill is still an effective tool to deal with those other
predators who are wreaking havoc in communities across this country.
Senator McIntyre: Yesterday, we heard
witnesses tell us that the bill should not only apply to criminalized
recruitment of youth into gangs but also to threats and coercion used to
keep young people in gangs, the reason being, of course, that youth fear
reprisals against them, their families and friends. What are your thoughts
Mr. Stamatakis: These organized gang or
crime groups thrive because of how they use threats and intimidation as a
tool to coerce people into doing what they want them to do. I'm in favour of
any legislative tool that will provide us with the ability to take some good
action against those kinds of behaviours and be able to respond swiftly.
Senator Joyal: Welcome, Mr. Stamatakis.
Yesterday, your colleague, Mr. VanMackelbergh, mentioned, in his brief, that
he would like to see greater sentences if recruitment occurs in areas where
youth should feel secure, i.e., schools, community centres, playgrounds or
anywhere youth congregate. Do you share this preoccupation of your colleague
that, if the recruitment takes place in an area where we usually find youth,
it should be an aggravating factor for sentencing?
Mr. Stamatakis: I would certainly agree
that it should be an aggravating factor. We create these spaces and tell
kids to go to those spaces, presumably because they are going to be safe and
secure there. It is an aggravating factor if people engage in recruitment
activities in those places, for sure.
Senator Joyal: The other preoccupation I
had — and I mentioned it yesterday — is that recruitment today should not be
seen only the traditional way, which is a predator coming close to a school
fence and trying to engage in conversation with the youth. To me, the use of
Twitter and all of the electronic networks that most of the youth now have
in their hands, which experts call cyber-banging, is a phenomenon that
exists much more than one might think to be real. I'm quoting from a Public
Safety Canada information sheet, brief number 13, and I read it to you
because I want to get your opinion on how that would change our approach to
fighting recruitment of youth into organized crime: "Organized criminals use
these networks" — i.e. Twitter and all of the other networks I referred to —
"for various reasons, ranging from the showcasing of their images and
exploits to allegedly recruiting members. This phenomenon is sometimes
referred to as ‘cyberbanging’."
As I said, it's the organized crime research
brief number 13, published by Public Safety Canada.
I'm tempted to give weight to that conclusion
because it's visible. You can see that the youth on the street all have
their iPad or their cellphone, and they are all punching. I have looked
quickly to other works that have been done by the University of Montreal's
criminology faculty, whereby this is a phenomenon that, today, spreads like
fire in the wheat field. That is, it is very easy to interconnect with
thousands of youth at the same time and especially to exploit the images of
organized crime. They are heroes, and they adopt the characters or the kind
of images that youth find in videogames and whatnot. To be part of organized
crime is like being part of knight groups and fighting and whatever.
We know that those games are very popular. I
wonder if what we are doing will really meet its objective, taking into
account that we seem to rule but not really to be improving our capacity to
lead investigations and to come to the criminals we want to get. I'm really
puzzled by the fact that the Minister of Justice of Manitoba yesterday
mentioned to us that section 467.11 of the Criminal Code was intended to
address gang recruitment. However, this provision is rarely used to address
this issue, and, when I read section 467.11, it clearly refers to anyone who
participates in or contributes to any activity of the criminal
organizations. It's very widespread, so recruitment is certainly part of the
phrase "contribute to any activity" of the criminal organization. It's
certainly a contribution to recruit youth or anyone to commit a crime. I
wonder whether the priority of police forces is to really zero in on the
recruitment or whether they are not focusing more on other aspects of
criminal organization, especially in the context of cyber-banging that I'm
Mr. Stamatakis: As a front-line police
officer, whenever you're entering into an investigation, when the provision
that you're relying on is quite broad, to be blunt about it, we have lots of
issues trying to put together the brief in a manner that is sufficient for
the Crown to proceed with the criminal investigation. So, as a police
officer on the street, I always prefer when the Criminal Code provisions are
quite clear and more narrow in terms of their scope.
That's what I would say in response to your
question about 467 versus this proposed Bill C-394. This very much narrows
and targets the specific activity. In terms of the social media piece, there
is no question that people engaged in gang crime, particularly younger
people, use social media in a very significant way. They are posting images
that promote the lifestyle and try to make it more attractive — the flashy
jewellery, the money, the cars, the guns. I have seen many images like that,
and they are certainly communicating, using social media, about events that
they are hoping to get kids to attend. Those are also areas where we can
gather a lot of evidence to establish that someone is engaging in activities
in an effort to try to recruit someone into a different lifestyle. It's
changing the landscape. There is no question that technology has had a
significant impact on policing — how we police, how we investigate crimes
now, all crimes, not just crimes related to organized crime or gang crime.
Police organizations across the country are adapting to that.
Senator Dagenais: It is always nice to see
you, Mr. Stamatakis. I know you a background in street policing and you made
your career in Vancouver where, like in many major Canadian cities, street
gang recruitment is high.
Yesterday, I told our colleague from Winnipeg —
and you will tell me what you think — that criminal organizations that
recruit youth are well aware that those young people can commit violent
crimes and their sentences will be less harsh because they are under 14, 16
or 18 years of age or even younger. Do you not think that recruitment is
linked to the fact that recruiting minors benefits criminal organizations,
knowing full well that those young people will be able to get the job done
and receive lighter sentences?
Mr. Stamatakis: Absolutely. You're right.
My policing background is in Vancouver. We've had prolific gang crime issues
not only in the city of Vancouver but in the Vancouver region for many
years, probably starting in a big way in the early 1990s. I can give you
many examples of organized gang groups who have specifically targeted youth
and have used those youth to commit certain crimes, knowing that there would
be fewer consequences for youth than for an adult committing the same crime.
Senator Dagenais: Thank you, Mr.
Stamatakis, and let me pass on the regards of your predecessor as I met with
Senator McInnis: Mr. Stamatakis, as
President of the Canadian Police Association, I'll give you a bit of
background and then I'll ask you a question as to whether you think the
government is getting there with respect to making our communities safer.
There were three criminal organization offences
prior to this bill: the commission of an offence for a criminal
organization; participation in the activities of a criminal organization;
instructing the commission of an offence for a criminal organization; and
now, recruitment of members by a criminal organization to facilitate or
commit an indictable offence.
Then, of course, we've had the Safe Streets and
Communities Act, the Tackling Violent Crime Act, stiffening of penalties,
serving consecutive sentences and so on. There are many others.
Do you feel the government is getting there in
making our communities safer? If you agree, are there other areas that we
should be contemplating?
Mr. Stamatakis: What I would say is this: I
think the legislation you are referring to is a step in the right direction.
In my view, a big part of making communities safer is our messaging around
crime and what we say about crime as a society.
I think for a long time in this country,
frankly, we've dropped the ball. As a society, I think we've created this
environment where it's no big deal if you get engaged in these activities
that have a real consequence for the victims, and they have a real
consequence for communities in terms of quality of life and impact on the
economic activity in the community. I think the legislation is a step in the
Where I think we still have a long ways to go
is, in my view, again from a front-line policing perspective, the police
have lots of tools in the toolbox; where we're constantly frustrated is once
we get into the criminal justice system in terms of the prosecutorial piece,
as I alluded to in my comments, these are sophisticated groups in many ways.
Technology has had a huge impact. The investigations are quite difficult and
complex. We have decisions like Stinchcombe, which create these
extremely onerous disclosure obligations. We end up then being in these
criminal prosecutions where it becomes all about the disclosure as opposed
to the evidence you have that these criminal offences have occurred.
I think on the legislative front, I support
this government's approach. I think we have a long ways to go in terms of
getting to the outcomes.
The other piece I alluded to in my comments is
that there needs to be an investment that goes along with creating the
legislative tools, and there also has to be a balance. I also believe that,
along with good legislation that gives the police the tools to enforce
Canada's laws, there has to be an emphasis on how we prevent people from
becoming involved in lifestyles where they're committing some pretty serious
and horrendous criminal offences. So it's a balance.
In my opinion, as a front-line police officer
for about 25 years, the pendulum has swung way too far one way, where it was
almost like a free-for-all in our communities across this country, to now
coming back a bit, but we have to get that balance right moving forward.
Senator Batters: Mr. Stamatakis, thanks
very much for participating in our committee hearing today. It's nice to see
First of all, I want to confirm with you, it
sounds like from what you're saying that it's your experience — which is a
considerable amount of experience — that the current section that is in
place today is not being used; is that correct?
Mr. Stamatakis: I don't know that it's not
being used. In my view, it's quite broad, and it becomes very challenging
then, as a police officer, to utilize that provision to then make the
argument or satisfy the elements that are necessary to be satisfied in order
to prove that the offence occurred; whereas a bill like Bill C-394 very much
narrows the definition of the activity, which then makes it easier to build
the case to satisfy the elements that you need to satisfy in order to prove
that the offence occurred.
Senator Batters: Right. One of your
colleagues from Manitoba, George VanMackelbergh, was before our committee
yesterday, and he indicated that, in his experience, he could only remember
a handful of charges dealing with that particular section that currently
exists, and that's in Winnipeg, where they have a considerable problem.
You wouldn't say that your experience, seeing
these issues from a pan-Canadian perspective, has been different from that,
Mr. Stamatakis: No. It's not a widely used
provision. Maybe I'm not being clear.
The problem with many Criminal Code provisions,
not just that one, is because they're difficult and police officers have
capacity issues, particularly in Winnipeg with lots of crime, you're going
to go where you think you're going to be most likely to succeed. If you're
starting to try to build the evidence to support a charge on a provision in
the Criminal Code that's very broad and difficult to prove and there's going
to be lots of resistance from the Crown, you're not going to commit the
resources to that. I agree with my colleague that it's not a widely used
provision across the country.
Senator Batters: Okay. You were being
clear; I just wanted to probe that a little bit.
Also, I noticed earlier Senator Joyal was
speaking about the issue of cyberbullying. I hope that with his comments
today, we may look forward to his support when our government brings forward
that particular piece of legislation to our committee. Thank you very much.
Senator Rivest: In terms of street gangs,
under the provisions of the Criminal Code, there is no doubt that the
traditional activities of police officers are absolutely necessary.
An experiment was done in the north end of
Montreal, in the Saint-Michel neighbourhood, where there were actually some
very serious problems with street gangs and youth recruitment. However, the
borough mayor, Ms. Samson, with the help of police authorities, changed the
traditional work of police officers — their suppression and law enforcement
work — and got them involved more in community and social action. You also
talked about the need for more balanced efforts from police and community
As a police officer with first-hand experience
in these issues, what is your general observation of these activities and
the effectiveness of community action, and what is the proportion, so to
speak, in terms of public safety effectiveness, between legal or law
enforcement suppression action and community action? What is effective?
Mr. Stamatakis: You're talking about one
type of activity. Let me just say at the outset that I completely support
that kind of approach. I think there has to be a balance. There has to be a
blending of both approaches. I don't think it can just be about enforcement.
On the other hand, it can't just be about
focusing on crime prevention. You're talking about two different types of
activities; one is very proactive and the other is reactive. You're reacting
to the offence that occurred, and we have a legal, moral and ethical
obligation to respond when those serious offences occur.
On the other hand, it's as important to engage
in these proactive activities, which are based on social interventions,
positive activities. But those are critically important activities that are
longer term commitments in terms of affecting outcomes. I don't think you're
ever going to see one or the other.
Police will always have to enforce the law and
take strong enforcement action, but at the same time, we need to engage with
our community in a much different environment where it's not about enforcing
the law and arresting people. It's a more positive interaction. I think it's
a blend of both. I don't think the proactive activities can be successful
without making sure that you have the right tools in place so that when
there is a criminal offence, there's a strong enforcement response as well.
The Chair: A question about how you catch
someone recruiting. What does the investigation look like? This bill amends
section 196 of the Criminal Code with respect to notification of the subject
of a wiretap, and it will now allow a judge to extend the period for up to
three years if he's satisfied the investigation is in relation to listed
offences in the code that involve a criminal organization.
I'm curious: Is there sort of a standard
template for this kind of investigation, and how important are wiretaps? Are
they a big part of a prosecution?
Mr. Stamatakis: It depends on what kind of
criminal organization you're dealing with. The more sophisticated and
organized the wiretaps become, the bigger part of the investigative
technique that you're going to use.
We use a lot of communications through social
media, Facebook. That has been a new opportunity that has become available
to the police as it has become more prolific in terms of utilization. There
are a variety of means.
Often the person who has been recruited will
initiate an investigation, because they will make disclosures about how they
got involved in the gang lifestyle. We get a lot of information from people
who get involved and have a change of heart. Usually they lose a friend or
loved one and it causes them to reflect on the kinds of activities in which
I couldn't tell you there's a template that we
use every single time. I think police officers in this country are quite
creative. They take advantage of whatever opportunity comes their way in any
particular investigation. Now, with technology, we have lots of new sources
of evidence that we can rely on when we're trying to prove these criminal
Senator Plett: Tom, you mentioned in your
remarks — George did yesterday, and others have — that one of the ways of
recruiting is parents are recruiting their own children into gangs; uncles
are recruiting nephews and nieces into gangs. Can you talk a little more
about that and tell us how big of an issue that is versus the regular type
of recruitment, where somebody is recruiting strangers? How much of this is
Mr. Stamatakis: I couldn't give you a
specific number, but it's extensive. I'm not sure I would focus just on
parental, but certainly family-based recruitment is quite common. It's
common in our outlaw motorcycle gang groups. It's very common in some of our
gang crime groups that involve a particular ethnic group, where it's not
only like an organized crime family, but it's a family that's involved in
the organized crime group, where you have cousins and uncles and even female
and male. It's quite prevalent in terms of gang crime activity, in
particular, organized crime groups for sure.
Senator Baker: Just a quick question
relating to a question from the chair concerning 196 of the Criminal Code
and tapping someone's telephone. If you're investigating a normal criminal
offence, say murder, say any serious trafficking offence, say drugs, you
couldn't get a wiretap unless you had exhausted other means of
investigation. There's a requirement in the code. All of a sudden, for this
particular offence we're talking about, it says you need not conduct
sufficient other investigative methods. You get the wiretap almost
automatically under this section of the Criminal Code.
Do you think that's necessary in the
investigation of the offences that we're talking about here today?
Mr. Stamatakis: I think the issue with this
particular offence is around the urgency of it. Why I think it is
appropriate to create provisions that would allow for those kinds of
investigative tools to be acquired quickly is there's some urgency around
this. We have to engage in a six-month or year-long investigation to
establish that there's some recruiting activity occurring. By that time,
that kid is recruited, he's well on his way to committing offences, and
particularly because of the kinds of activities that a lot of these gangs
are engaged in, a lot of these kids get killed. They're shot; they're
executed by rival gang members, by their own gang members at different
times. I think there will still be a requirement to establish to a judge
that it's appropriate for him or her to authorize the activity, and as long
as there's that measure in place, I think it's totally appropriate.
The Chair: Thank you, Mr. Stamatakis. We
always appreciate your contribution to our deliberations.
Members, we'll recess briefly before hearing
from our next witnesses.
Our second panel of witnesses today is composed
of representatives from the RCMP. We have Guy Pilon, Chief Superintendent,
Criminal Intelligence Service Canada; and Ken Lamontagne, Director,
Strategic Intelligence Analysis, Criminal Intelligence Service Canada.
Chief Superintendent, I believe you have an
opening statement. Please proceed.
Guy Pilon, Chief Superintendent, Criminal
Intelligence Service Canada, Royal Canadian Mounted Police: Good
morning, Mr. Chair. Thank you for allowing me this opportunity to provide
you with an overview of Criminal Intelligence Service Canada and the role it
plays within the greater Canadian law enforcement community. I will also
take this opportunity to provide you with a brief overview of organized
crime in Canada, which I hope will be helpful in your discussions.
Although I'm sitting in front of you wearing an
RCMP uniform, I would like to mention that, in my role as the Director
General, I represent the larger law enforcement community and not solely the
I would like to start by explaining the CISC
structure and the role it plays in support of law enforcement efforts
against organized crime. CISC was established in 1970 as one of the National
Police Services to improve the sharing and distribution of criminal
intelligence to police services in Canada. Today, it is composed of nearly
400 law enforcement agencies from across Canada, and it is responsible for
the production of criminal intelligence and the sharing of criminal
information among its member agencies. Its structure is composed of a
central bureau located in Ottawa and provincial bureaus in 10 of our
Although the RCMP is the steward of CISC, it is
governed by a national executive committee composed of senior law
enforcement officials from municipal, provincial and federal law enforcement
Sharing information is crucial to our success
in combatting the multi-jurisdictional nature of organized crime. As you are
more than aware, organized crime groups are not confined by boundaries. CISC
shares intelligence mainly through our two flagship documents, the CISC’s
National Threat Assessment on Organized and Serious Crime in Canada,
which provides the law enforcement community with analysis of the network of
organized crime groups operating in Canada, and the National Criminal
Intelligence Estimate on Organized and Serious Crime, which focuses on
providing a thorough understanding of how organized crime groups operate in
each criminal market within Canada and the enabling factors that allow them
to be successful.
The information used in these assessments is
obtained from our provincial bureaus through an integrated threat assessment
process. Since 2012, all of our bureaus have contributed to the process,
allowing us to produce the most accurate and comprehensive analysis of
current and future criminal marketplace developments.
Similarly, in partnership with our bureaus, we
established in 2013 new common threat measurement criteria and business
rules, which all bureaus are implementing. This will enable better
intelligence gathering when planning for and assessing threats related to
Canadian organized crime, ensure a consistent approach, nationally, to
assessing organized crime and also facilitate comparisons between provinces.
Eight threat criteria — violence, corruption,
scope, criminal links, business ties, cohesion, sophistication and
involvement in criminal markets — are used to rank organized crime groups.
The distinct weighting of each criterion to rank the groups is applied to
reflect local, provincial or national disparities and client need.
In 2011, the CISC National Executive Committee
adopted the Canadian Law Enforcement Strategy, which embodies the
partnership between the functions of intelligence and operations across all
law enforcement jurisdictions. To support the strategy, CISC's National
Threat Assessment on Organized and Serious Crime in Canada is used by
police services across Canada to prioritize investigations and operations
into organized crime, which has real operational and financial benefit,
ensures that efforts are focused on the highest priorities and that this
focus is consistent and understood across the country.
Unity of effort through this integrated
approach achieves an effective and proactive response to organized crime and
threats to public safety in Canada. Effectively, this approach
operationalized provincial and national threat assessments, making them
instrumental to operational decision-making and prioritization processes at
all levels of policing.
In short, these products improve the
integration of information and intelligence, which serves to enhance our
understanding and targeting of organized crime and allows us to make more
I would like to discuss some noteworthy trends
with respect to organized crime in Canada. At the outset, I should note that
there has been some variation in how we calculate the number of organized
crime groups. Of greatest importance, I think, is that police forces across
Canada have broadened their approach to organized crime to include not only
tightly knit groups but also more loosely associated, ethnically diverse,
integrated criminal networks.
A total of 672 organized crime groups were
reported in 2013. Fourteen groups were assessed at high level. They are
predominantly located in the Lower Mainland, B.C., the Greater Toronto Area
and Montreal. These groups likely gravitate to major metropolitan areas for
ease of access to markets, ports and other criminal networks. Thirty per
cent of these groups are involved in multiple types of criminal activity and
are increasingly operating on a network-style basis.
The Canadian Hells Angels continue to be the
most powerful and interconnected criminal network in the country. Its 36
chapters are linked to hundreds of organized crime groups and several
hundred businesses. Overall, Canadian organized crime groups are associated
with 917 private sector businesses concentrated in food, transportation,
construction, and finance sectors. Canadian-based organized crime groups
continue to import illicit drugs from the United States, Mexico, China,
India and several South American, Middle Eastern and Southeast Asian
countries, and export from Canada notably to the U.S., Australia and Japan.
Several international organized crime groups have collaborative links with
Canadian organized crime groups. In particular, Mexican cartels have
reported links to several high-level threat groups for the purpose of
Although CISC does not specifically address
youth recruitment, we have noted the following trends: Gang violence
continues to be a feature of the organized crime landscape in the Lower
Mainland of B.C., throughout the Prairies, in the Greater Toronto Area and
Montreal and remains a top priority for public safety officials. Gangs in
these areas have large pools of young men and increasingly young women to
fill their ranks. Aboriginal gangs tend to be more violent in nature than
other gangs with typically more shootings and acts of violence. Membership
tends to be slightly younger than other groups, and involvement of minors is
Organized crime has evolved into a global
threat confronting every country in the world. As the world becomes more
interconnected, Canadian organized crime continues to pose a threat to the
quality of life in Canada and to expand internationally. In order to adapt,
law enforcement and government agencies have developed more collaborative
approaches to dealing with those individuals and groups. CISC will remain a
united force in this effort.
I thank you again and look forward to answering
The Chair: We will begin with deputy chair
of the committee, Senator Baker.
Senator Baker: Thank you, for your
testimony before the committee.
Senator Dagenais is on our committee. He worked
for many years in the police force in the province of Quebec. He's very
familiar with the source material police have available to them when they're
investigating a crime.
We know there is the Canadian Police
Information Centre and we know there are some other sources that a police
officer can sit down with when he's doing sworn information to obtain
concerning an offence under this bill. When he or she is doing the sworn
information to obtain, I notice they do check with CPIC and other provincial
sources to spell out in certain paragraphs additional information to support
What would be your department's identification?
It's not CPIC but what is called?
Mr. Pilon: Our department has a national
data bank on organized crime. We are the only national data bank available
to all law enforcement facilities in Canada. It is called ASIS and is being
used effectively across the country by many law enforcement agencies to
support investigative needs.
Senator Baker: I've seen the letters many
times, and you are operating very effectively.
Having looked at this proposed legislation, do
you see anything we can change in any way that would make it of more benefit
to you? You didn't make reference specifically to the bill. I presume
Senator Plett will ask if you support the bill so I will ask you first. Do
you support it and do you see any other things that perhaps we can do?
Mr. Pilon: Well, it is not within my
purview to support or not support the bill. Definitely I think things are
working well with the national strategy in place to combat organized crime.
I think we have the structures in place to bring together law enforcement
and that it's adequate for us to continue our fight against organized crime.
Senator Baker: Thank you.
Senator Plett: Let me ask that question in
a different way: Do you think this is a good bill?
Mr. Pilon: Although I won't comment on the
bill, I can say that any tool that is tabled or the government will bring to
help us fight organized crime and reduce the number of new members entering
organized crime will be welcomed by the law enforcement community.
Senator Plett: Thank you, I appreciate
You spoke in your statement about 672 organized
crime groups, so I will ask a few questions. I know the chair will cut me
off if I don't do them all at once. Maybe you can address them.
Of the 672 organized crime groups, how many
would be considered gangs? Obviously the mob or Mafia might not be
considered a gang. How many would be considered gangs? You spoke about
Aboriginal and ethnic groups, how many of these gangs would be ethnic? Do
the Hells Angels, in your opinion, recruit young people? I read about them
and think it's not the easiest organization to get into. Are they out there
recruiting young people?
Mr. Pilon: I will start with the last part
of your question. I would say that definitely the Hells Angels, like any
other organized group, will need to recruit on a regular basis new members
for various reasons, whether people are incarcerated or whether they wish to
isolate themselves from prosecution.
Senator Plett: Would that be children?
Mr. Pilon: I don't have specific
information that would suggest children, but the Hells Angels have specific
rules within their recruitment process. To become a Hells Angel you have to
be 21 years old. That would preclude recruitment directly. As you are aware,
numerous puppet clubs support organized crime groups that work with these
individuals and that would not preclude recruitment within those groups.
What was the first part of your question?
Senator Plett: How many of the 672 are
gangs and how many are ethnic gangs?
Mr. Pilon: With regard to gang and the
definition, CISC has chosen not to define "organized crime groups" with that
specific designation for various reasons. It becomes complicated to separate
organized crime groups from gangs. We also believe that it would have been
problematic with the organized crime legislation already in place; so we
chose not to define them in such a way. They are basically lumped into one
definition of "organized crime."
Senator Plett: And ethnic?
Mr. Pilon: We don't specify ethnic origins.
Senator Plett: But you did Aboriginal.
Mr. Pilon: Yes, but we don't have specific
statistics on that. We were trying to describe the situation particular to
youth. We have no statistics to support that. It basically comes from
reports we receive from our law enforcement community. There is a reality
prevalent in Manitoba specifically with regard to Aboriginal youth and the
problems they have with law enforcement at this time.
Senator Dagenais: Thank you to our two
witnesses. Mr. Pilon, in your presentation, you have often said that your
information comes from documents such as the national threat assessment on
serious and organized crime. You have also mentioned the national criminal
intelligence estimates and the threat assessment criteria.
Have you calculated the number of minors
recruited by criminal organizations? If you heard my question to the
previous witness, I said that minors are often recruited because they
receive lighter sentences, which encourages criminal organizations to make
them commit violent crimes. Have you calculated the number of minors who may
have been recruited?
Mr. Pilon: We do not have those statistics.
After reviewing a different approach to crime, we have established eight
assessment criteria, which I mentioned in my initial remarks. Some of those
criteria pertain to young people. For instance, one of them is violence,
which can in fact include aspects related to youth. If we look at group
cohesion, the focus is on family ties, ties with various groups within the
organization, and so on. We therefore might look at youth at that level.
However, we have not made that distinction specifically for youth. Since we
are currently assessing groups that pose the most serious threat in Canada
at a high level, there are clearly far fewer concerns about young people at
this level of crime. If we consider youth, I think we look at groups that
support crime in a more significant way than these groups.
Senator Dagenais: Thank you, Mr. Pilon.
Senator McIntyre: Thank you, gentlemen, for
As Senator Plett mentioned in a question to a
previous witness this morning, mandatory minimum sentences have a long
tradition in Canada. For example, Bill C-2 calls for a mandatory minimum
sentence for serious gun crimes involving organized crime; Bill C-14, in
2009, drive-by shootings; and Bill C-10, the Safe Streets and Communities
Act, also calls for mandatory minimum sentences for drug crimes committed
for the benefit of, at the direction of or in association with a criminal
This bill also calls for a mandatory minimum
sentence, mandatory five years, minimum sentence is, I understand, six
months. Not everyone in this country agrees with mandatory minimum
However, bearing in mind the fact that we're
dealing with something serious, we're dealing with organized crime, are you
in agreement with me that this type of offence really calls for a mandatory
Mr. Pilon: Again, I won't comment
specifically on the legislation, but I do agree that crimes that face our
youth are the most important to us, and we should look at ensuring that we
have every available measure in place to combat that situation.
Senator McIntyre: As I understand, Toronto
City Council has approved this bill.
Mr. Pilon: I'm unaware, sir.
Senator McIntyre: Mr. Lamontagne, do you
wish to add?
Ken Lamontagne, Director, Strategic
Intelligence Analysis, Criminal Intelligence Service Canada, Royal Canadian
Mounted Police: My comments would mimic those of my colleague.
Senator Rivest: There was a passage in your
text — and I say this with all due respect — that annoyed me a little. I do
not like to hear people personalize cases, the way you said that Aboriginal
gangs tend to be more violent in nature than other gangs, with typically
more shootings and acts of violence. I am sure that police services combat
organized crime in the same way for all the groups, be they Aboriginal,
white, black or any other groups. I think it is a little imprudent, and
certainly inappropriate, to single out Aboriginal people.
Mr. Pilon: I appreciate your comment, and I
thank you. Yes, it is always tricky. We were trying to highlight a problem
specific to this province, knowing that the committee was looking for
information on youth participation in criminal activities.
Senator Frum: Both you and our previous
witness made reference to the growing number of female recruits. Could you
tell us more about that and why you see a growth in female participation?
Are the recruiting techniques the same? What is the general age range of the
Mr. Pilon: We don't have specific
information or statistics with regard to the number of females entering
criminal activities, but as part of my work I sit on operational committees.
We also have 10 different bureaus that we sit with and discuss issues around
criminality and that has been observed.
This will also vary in what type of activities
female members will enter into. More and more, we see financial crimes. We
see that as a venue that is maybe more open, like any other type of
profession today that is better represented by both sexes. This has also
been seen in the criminal world.
If we look specifically at traditional
organized crime, we have seen at times female members taking a leadership
role when the husband was being detained. They would take a role that, in
the past, we weren't seeing. I think it's nothing more than the evolution
and reality of the world today.
Senator McInnis: Thank you for coming.
We all know that there are organized groups out
there with the prime motive to commit criminal activity. I must say I was
quite surprised and shocked at the number of groups there are in the
country. Of course they are, as we've been told over the last day or so,
very sophisticated and knowledgeable groups.
When bringing them to justice, you have to
garner the evidence for conviction, and law enforcement must use every tool
available to them to accomplish this. Of course we always hear — as well we
should — about the Charter and privacy rights, and they always have to be
Could you comment on the value of tools such as
electronic surveillance, possible income tax disclosure, witness protection
guarantee, DNA samples in bringing criminals to justice?
Mr. Pilon: The one comment I could make is
that prosecuting cases is becoming more difficult. Obviously, the more tools
available to law enforcement to advance the prosecution's case are very
useful. When we look at serious organized crime, like most of our membership
is investigating, definitely we need those sophisticated tools to ensure we
are able to obtain the information and evidence required.
Also, these groups are very insulated from
investigation, often, and therefore these types of tools are required to
ensure that we have the capacity to obtain the evidence required.
Senator McInnis: CISC is an independent
group in many respects. You must be out there at times saying, "I wish we
had this piece of legislation or law." Do you ever lobby?
Mr. Pilon: No, we don't. We are not that
independent. Although I independently represent the rest of the community,
we are quite integrated within law enforcement. More and more now we work
with different prioritization committees in various police forces that are
looking at investigations.
We sit on many national committees where we
work with law enforcement and a law-application function. I don't see us
From my point of view, my responsibility is
with regard to criminal intelligence and its sharing. I believe we have the
structures in place to do that effectively now. I don't see a need to lobby
Senator McInnis: Oh, really?
The Chair: I have a question related to
what I asked Mr. Stamatakis about investigative techniques. I referenced
wiretaps and he indicated that social media has become a big investigative
tool in terms of trying to track down recruiters. In response to a question
from Senator Plett with respect to ethnicity, you indicated that you don't
define these groups by ethnic origin. I'm curious, in terms of
investigations, about challenges, aside from the fact that you don't define
them in that way. But you have to try and cope with organizations. I know
certainly in Toronto we've seen shootings in Chinatown with the gangs, and
we know in the marijuana business frequently Vietnamese gangs are active in
that area of endeavour.
I know you don't keep statistics, but I am
curious about your investigative techniques when dealing with different
ethnic groups. If the gangs are composed of that one ethnic community and
they speak a language that has to be a challenge for you. How do you cope
with those kinds of challenges?
Mr. Pilon: That's somewhat out of my realm
of responsibility, but I do sit on operational tables and see the challenges
that are there. What we see is that there is a quite a partnership happening
between many criminal organizations today, so there is a mix of ethnicities
when we are investigating these types of crimes or organized crime groups.
We need all the tools, and we are always
challenged with finding a person who can speak the language, interpreters
who can translate this, and the need for the various investigative tools,
such as undercover operators, who will have the proper ethnic background to
infiltrate these groups. These are always challenges but where we are
succeeding, I think, is by law enforcement coming together and putting all
of our resources together, and nationally we do that. I have not seen an
investigation where we were not able to find the proper undercover operator
or translators required to effectively complete the task.
The Chair: With reference to not keeping
statistics, along these lines, I know that was always a big issue in Toronto
for many years; keeping crime statistics. I'm curious if keeping statistics,
with respect to this issue, would help in terms of policy development on how
you meet these challenges that you have to face and the limitations on your
ability to cope with them. And also the government and other areas where
policies could be impacted by having facts on the table rather than an
indication that, yes, we're dealing with this effectively.
Mr. Pilon: Absolutely, it's always
something to be considered within the scope of the assessment. We are using
eight criteria now. The advantage of these eight criteria is that they can
be applied differently in different venues. The weight that we give to
different criteria — we have a national weight obviously — will generally
bring very serious organized crime groups at the highest level because
nationally we want to focus on these groups. But municipally and
provincially, the same tool can be used with different criteria integrated.
This will allow law enforcement agencies at various levels, should they feel
a need to focus on a specific issue, to modify the tool to fit their needs
or the perceived needs of their community at that time.
The Chair: We have some time for additional
Senator Baker: I have a couple of quick
I agree with Senator McInnis that the numbers
are just staggering, and we appreciate you giving us those numbers. You say
there are 672 organized criminal organizations operative in Canada. You also
mentioned the number of 947 businesses in Canada that were affected by
these. Am I drawing the right conclusion here? We have 672. That's over 60
per province if it were per province, and it would be about 100 businesses
involved in each province in Canada in organized crime.
Am I reading correctly what you've just told
Mr. Pilon: Yes, senator. You are reading
this correctly, but let me give some precision to that. The 672 has been a
fairly consistent number over the years.
Senator Baker: First time I heard it.
Mr. Pilon: It has been reported. It
fluctuates from year to year, obviously, with different groups being
arrested and other groups coming into the market. You also have to be
mindful that we're looking at the Criminal Code definition when we look at
this, so three individuals who are involved in a criminal activity on a
permanent basis basically —
Senator Baker: Committing indictable
offences and getting a return completes the definition of criminal
organization; you know that. So you're saying there are 672 of those
organizations in Canada today.
Mr. Pilon: That's right, senator. That's
the first part of your question. The other one you mentioned was the various
businesses that are involved. Maybe I will let Mr. Lamontagne explain that
from when he was part of the study that looked at that issue.
Senator Baker: How did he come to that
Mr. Lamontagne: As part of our collection
process. So the way it operates now is that with the various provinces we
have a common collection process and collate the same type of information.
When you see eight threat criteria, one ties to business. We try to identify
which businesses are being exploited, abused or misused by organized crime
groups. From 2013, we identified 917 of those businesses, so that's
essentially how we are operating at this point.
Senator Baker: In your computer that the
police officers can access at any time in their vehicles or in their
offices, they can actually look at names and numbers of conclusions that
you've drawn from your analysis across Canada — this business or that
business organization is involved in some sort of criminal organization —
and that in fact you have 672 organizations and here they are, listed on the
computer for police officers to access when swearing information.
Mr. Pilon: Technically, that's correct, but
in reality it is not a system that provides you a return like CPIC, which
would be that precise. It is more a system that has resumés of
investigation, so it needs a bit of analysis. The names of those companies
are definitely there.
The other precision I would like to make with
regard to the names is that we have to remember that if you look at Hells
Angels, they might own bars in the province but those are businesses. So
it's not necessarily businesses that are not involved in organized crime
that we make these links to. It can happen. People could be working in a
different type of company and if we feel that link is significant then we
would highlight it.
Senator Baker: My final question is this:
Do you have an agreement with Revenue Canada whereby you have access to
Revenue Canada files concerning business operations in order to arrive at
your analysis of whether or not there is some suspected criminality?
Mr. Pilon: At the present time we don't
rely on that type of data and we don't have access for various reasons.
Senator Baker: How do you get the material?
Mr. Pilon: We don't.
Senator Baker: You don't because you're
just collecting information, right?
Senator Plett: I have one question here.
In your statement you say gang violence
continues to be a feature of the organized crime landscape in the Lower
Mainland of B.C., throughout the Prairies, greater Toronto and Montreal.
Am I to understand that we don't have serious
problems in the rest of the country? That's a small portion of the country,
although certainly I know Manitoba is a huge problem. How about Quebec City?
How about Atlantic Canada, some of the other areas in Ontario?
Mr. Pilon: Senator, you're absolutely
right. Unfortunately, the problem is much larger than that. I was trying to
highlight that in those specific cities, the problem is greater in scope for
us. When we look at the 14 groups we have that we define as the major
organized crime groups in this country, they are represented mostly in those
cities, and you can understand the reason why. I have a whole list that I
could go through today, but you obviously understand that this problem is
across the country. The Hells Angels are across this country. They're
increasing in numbers. Their public clubs are increasing every year. This is
a problem we need to continue to focus on nationally and gather intelligence
so that the law enforcement community can counter these types of activities.
Senator Plett: The Hells Angels have been
designated a criminal organization, correct?
Mr. Pilon: They have been in particular
cases across the country, but I'm aware of provincial legislation in
Manitoba now that has defined them as such.
The Chair: Thank you, gentlemen. We
appreciate you taking the time out of your busy schedules to join us today
and help us in our consideration of this legislation.
For our final panel today on Bill C-394, I'd
like to introduce, from the Aboriginal Legal Services of Toronto, Christa
Big Canoe, Legal Advocacy Director; and representing the Criminal Lawyers'
Association, Michael Spratt.
I believe you both have opening statements.
Michael Spratt, Representative, Criminal
Lawyers' Association: I'd like to thank the committee for the invitation
today. My name is Michael Spratt, and I represent the Criminal Lawyers'
Association, which is a non-profit organization founded in 1971. We're
currently composed of over 1,000 criminal defence lawyers, many of whom
practice in Ontario, but some of whom practice in other jurisdictions across
I'll try to be brief in my opening comments,
but the CLA has been routinely consulted and invited by various
parliamentary committees such as this one to share our views on proposed
legislation pertaining to issues in criminal and constitutional law.
Briefly, the CLA supports legislation that's necessary, modest, fair,
constitutional and supported by the evidence.
Part of the reason we're so grateful to be
invited to committees such as this is that the detailed study and evaluation
that all legislation, but especially criminal legislation, receives in the
Senate is an immeasurable benefit to us all, and I thank you for that.
Having said that, the Criminal Lawyers'
Association has some concerns with this proposed legislation, concerns that,
in our opinion, merit some serious consideration. I'd like to briefly touch
on three different aspects.
The first is the necessity of the legislation;
the second is some legal issues pertaining to the drafting of this specific
legislation; and the third should come as no surprise to the use of
mandatory minimum sentences in the legislation.
Quite simply, dealing with necessity, Bill
C-394 is not necessary. The conduct captured in this proposed legislation is
already captured in other sections of the Criminal Code, specifically
section 467.11. It is already an offence to recruit an individual into a
criminal organization, and that's already found in the Criminal Code.
This section adds, through Bill C-394, needless
complexity to the Criminal Code. As I will point out, it can result in some
other legal issues that would merit consideration.
From coast to coast we see this with respect to
criminal organizations. Recruitment is a defining feature found in most of
the cases that deal with section 467.11. If you look at the case law, if you
just search this section, plus recruitment, you will see that recruitment
and the consideration of recruitment is a defining feature in the
consideration, the conviction and the sentencing of people who are charged
and found guilty of being involved in a criminal organization. This measure
addresses a problem which doesn't exist, and in doing so, there are some
legal nuances or legal issues that arise.
The first issue the committee has already
considered, and that is the need to make one additional consequential
amendment to the Criminal Code. Section 196.1(5)(a) of the Criminal
Code, would need to be amended. There are other sections of the code that
are amended through this bill, and I think that's one that perhaps has been
missed, but it's an amendment that would need to take place as well. The
bottom line is this new provision might actually make the offence more
difficult to prove than it already is.
You'll note that in section 467.11(2), there's
a list of factors that the prosecution need not prove. It's not necessary
for the prosecution to prove in order to have someone convicted of that
section. That section does, in my opinion, include recruitment.
The current bill lists none of those provisions
as being unnecessary to prove, and the courts will ultimately determine if
they are or not. As we all know, Parliament and the legislature doesn't
speak in vain, and it will be a significant factor that those unnecessary
factors are included in one section and are not included in this section.
Moving very briefly to the last point and that
is mandatory minimum sentences. I won't repeat the CLA's position with
respect to mandatory minimum sentences in detail. It's a submission we've
made numerous times at this committee specifically.
It is suffice to say that there is little or no
evidence that mandatory minimums deter crime. There is little or no evidence
that mandatory minimum sentences are effective in deterring crime or
protecting the public. We do know that mandatory minimum sentences limit
judicial discretion, which indeed has been an issue that the Supreme Court
of Canada has considered recently and affirmed the importance of.
There has been some talk with respect to this
bill about the extensive consultations that have occurred. Sadly, it seems
that there have been no consultations with respect to the mandatory minimum
sentence issue. In fact, the sponsor of the bill, when asked that question,
is there any study that can be pointed to, any experience that supports
views on mandatory minimum sentences, any experiences in other jurisdictions
that support the theory of the sponsor of mandatory minimum sentence, the
answer was: I don't have a study; I can't back that up; no, absolutely not.
This is important. There should be study, and
there should be evidence that underpins changes to the Criminal Code. This
is a problem that's especially acute in this piece of legislation. This
mandatory minimum sentence has the potential of disproportionately impacting
youthful offenders over the age of 18. Given the broad combination of a
criminal organization, that is, three or more people working together to
commit a criminal enterprise, there are reasonable hypotheticals that would
call into question the constitutionality and utility of mandatory minimum
sentences. I will give you a brief example of that before I cede the floor.
Criminal organizations don't just mean Hells
Angels; they do not mean gangs as we sometimes hear. It's not just "The
Sopranos." Imagine three 18-year-old individuals who are adults in their
last year of high school. They are trafficking in pirated software,
distributing pirated software, committing theft. By definition, they may be
a criminal organization. They recruit, so to speak, a 17-year-old friend,
classmate of theirs, to set up a website to help with that. They have now
committed an offence, which would be captured under the mandatory minimum
sentence in this bill. A judge would have no discretion on how to deal with
those offenders, maybe otherwise pro-social, first-time offenders with no
criminal background that are engaged in a somewhat minor offence, when we're
looking at the grand scheme of offences. This is a hypothetical that's
possible; it's a hypothetical that may arise, and it demonstrates the
potential constitutional infirmity of this specific mandatory minimum
Again, without a study into the utility, the
cost, the scope of application, it's our submission that it would be unwise
to proceed with mandatory minimum sentences in this case.
Christa Big Canoe, Legal Advocacy Director,
Aboriginal Legal Services of Toronto:
[The witness spoke in her native language]
I'm Christa Big Canoe, the Legal Advocacy
[The witness spoke in her native language]
— which translates into "All those who seek the
truth." I have provided the clerk — I apologize — only today with a brief.
We received the invitation with less than a week's notice, so we tried to
put together a comprehensive brief for your review. In the brief there are
also two appendices. The first appendix is a bibliography, so where there's
a citation to either cases or resources in this area, they're included in
appendix A. Appendix B actually includes an entire article, because it
specifically addresses youthful involvement in gangs as it relates to
I would like to start with the submission that
the bill has an admirable aim in terms of its desire to protect children,
but Aboriginal Legal Services of Toronto believes that the bill will not
reduce or prevent Aboriginal criminal organizations from recruiting new
members and will likely create more environmental opportunities in penal
institutions that will foster increased recruitment of gang memberships.
Again, this speaks to not necessarily young offenders but youthful adults
who would be captured by the legislation if it's passed.
These submissions contained in the package only
highlight major concerns. We've noted where we concur with other submissions
made by other parties. We also concur largely with what Mr. Spratt has
presented orally to you today.
Our major concerns include three main
components. The first is the impact mandatory minimum sentences have on
Aboriginal offenders and Aboriginal communities. The second is the impact
consecutive custody treatment and delay of parole will have on Aboriginal
offenders in communities. The third, similar to what Mr. Spratt was just
discussing, is that meaningful prevention strategies and the harm that
passing the bill will create has a connection to resources and good
research. The bill before the Senate, I would argue, does not.
In the brief, I draw your attention to pages 2
to 5, where I list a number of facts and statistics mostly compiled from the
government and Juristat that speaks to what we know. Briefly, without
getting into great detail, things we know about Aboriginal offenders within
the penal system are that they're overrepresented, not only as sentenced
individuals but also as those waiting in remand.
A lot of the studies and statistics before you
in this brief or otherwise don't actually capture the true number of people
in both provincial and federal facilities. The incarceration rate for
Aboriginal adults in Canada is estimated to be 10 times higher than the
incarceration rate of non-Aboriginals. In 2010-11, 41 per cent of females
and 25 per cent of males in sentenced custody, both provincially and
federally, were Aboriginal.
To say there's a crisis of overrepresentation
of Aboriginal people within Canada's justice system or penal system is an
understatement. The court in Ipeelee in 2012 said if it was a crisis
at the time of the decision of Gladue, what is it now?
Recognizing that a mandatory minimum will have
a completely adverse effect, particularly on those Aboriginal offenders who
find themselves before the court, I think is an important one that the
committee must consider.
What else do we know? We know that the impact
of mandatory minimum sentences is harmful to Aboriginal offenders because
those who are incarcerated in the penitentiary system realistically don't
get rehabilitation while they serve their time. In fact, they generally come
out worse than before. There are a number of studies and there are citations
within this brief that speak to the fact that incarceration actually
increases the recruitment of Aboriginal individuals who are held in custody.
I apologize that I wasn't here for the last
speakers, CISC or the RCMP, but some of their own reports speak to the fact
that incarceration and federal custody are actually conducive environments
for Aboriginal gangs to recruit and to increase affiliation. This is
something that must be considered if you're going to contemplate putting
into place mandatory minimums and then compound it by having the sentences
not be concurrent but consecutive.
An individual who comes before the justice
system — and historically, an Aboriginal individual who comes before the
justice system receives a harsher or longer sentence — will be convicted or
plead to more of the charges, even if there are more than one on the
information, and they will be convicted. In this bill, the need to
consecutively sentence individuals will increase the duration if there is
more than one mandatory minimum. What we know of those, for example, that
are in custody is that the longer they're in, the higher the chance or risk
that they will become gang affiliated.
The problem is when they're released. Whether
we see something as a serious criminal offence, the time isn't immeasurable
in custody. What happens when they're released is they go back to the
communities they came from, often as a better criminal.
One of the points I also want to raise is
around the implications and principles of Gladue, what the court has
said in Ipeelee, and what we must consider when we talk about
judicial discretion. Section 718.2(e) is a provision that Gladue
explains to us, which requires the court to consider the circumstances of
the Aboriginal offender before the court. Mandatory minimums remove that
My colleague used a scenario or what's known as
a reasonable probability. I was going to do the same. I won't now, but if
you took the same scenario and replaced it with Aboriginal youthful adults,
you would see the likelihood is it wouldn't be just another kid but probably
a family member or a relative within their community. Maybe it wouldn't be
pirating electronics; maybe it would be some other crime.
Essentially, though, the result for the
Aboriginal individual will likely be longer custody, and what we know is
they will stay closer to warrant expiry, that they won't have access to the
same programs within the facilities, both provincial and federal, because
they will be seen as a higher risk by virtue of their Aboriginality. This is
problematic when you consider the Aboriginal gang problem that's occurring,
but the catalyst is often right through the institutions that are supposed
to be protecting or providing public safety.
This brief also touches on the fact that the
high-risk factors for Aboriginal youth are different or slightly different
than for other groups, and they include continued institutionalization. A
lot of people don't like to hear it, but I'd be remiss if I didn't touch on
the residential school impact to family and the Sixties Scoop because these
are all things that layer and build and change the perspective. Then we talk
about Aboriginal communities and some of the poverty or lack of
opportunities they have. These are all things that we know actually help
prevent any involvement in gangs.
I'm almost out of time. I just want to touch on
one other point in terms of the third point. What I really want to highlight
is what works and what doesn't work.
The reports as they relate to Aboriginal
offenders, particularly youthful Aboriginal offenders, clearly say what
doesn't work is incarceration. It doesn't work to stop gang affiliation.
Historically in Canada, gang suppression strategies have won out over
evidence-based treatment and prevention. Unfortunately, scarce resources
have been spent on get-tough approaches, where young gang members are
incarcerated at huge financial costs. Program models are male-oriented, and
the unique needs of young women or Aboriginal people are not met through
The brief touches on and talks about the need
to look at and fund resources. The recommendations we are making are cited
on page 12 in relation to why it's important to think specifically about the
impact that this bill will have on Aboriginal people, communities and
offenders. It's not only offenders; it affects an entire community and it
affects numbers of youth. It's important to consider and contemplate the
consequences beyond the one offender.
Our recommendations, therefore, are that this
bill should not pass as it's contrary to section 718.2(e) of the
Criminal Code and vulnerable to constitutional challenge. Second, if the
bill is passed, the mandatory minimum punishment of imprisonment be removed
and the consecutive custody requirements be removed. Finally, that resources
and research be dedicated to impactful prevention and strategies for youth
involvement in criminal organizations.
The government completed a report that actually
talks about what is successful, what works and what doesn't. Smart
investments go a lot further in terms of minimizing the risk that young
people have, particularly Aboriginal young people, to become involved in
I think it's important to recognize that we
don't need more prisons. From an Aboriginal perspective, it's often seen
that Aboriginal people are being warehoused, and they're often the most
vulnerable to a system that has historically and arguably contemporarily
treated them unjustly and unfairly. It won't just compound the crisis of
overrepresentation; it will worsen it.
The Chair: Thank you. We will begin the
questions with the committee's deputy chair, Senator Baker.
Senator Baker: Thank you to both witnesses
for very excellent presentations.
My first question is to Mr. Spratt. He has
pointed out an element in this bill that has to be changed. He identified it
as, I believe, 196.151. He said the committee has already recognized this
error in this legislation. I would like for him to comment on that after I
ask my question.
With private members' bills from the House of
Commons, I have noticed recently a very successful procedure was included in
Bill C-489, an Act to amend the Criminal Code and the Corrections and
Conditional Release Act (restrictions on offenders). You will recall, Mr.
Spratt, you were called before the committee in the House of Commons. It was
a very successful procedure they initiated, because they had you and I think
somebody prior to you point out where you believed the errors were. Then the
committee had a short recess and went into clause by clause. Then, behold —
they made some of the changes you suggested in your recommendations. So when
we pick up this bill now in the Senate, I can see that those major errors
have been corrected.
But let's look at this bill for a second.
You've identified one thing that needs to be corrected. The House of
Commons, also, I might point out to you — I don't know if you are aware of
it — but when you look at clause 9 of this bill. When you look at new
section 467.111, the House of Commons heard testimony — the same testimony
we heard — that said you must insert the word "coerces" to go along with
"recruits, solicits, encourages and invites."
The witnesses we and the House of Commons heard
said the coercion is done with very young people coerced into gangs and
coerced while they are in the gangs. But the amendment put forward in the
House of Commons does not cover those people under the age of 18 at all.
It's put in under "solicits, encourages, coerces or invites a person." Then,
in the next paragraph: "in the case where the person recruited, solicited,
encouraged or invited is under 18 years of age" without the word "coerced."
That is a major error. That was admitted by the cabinet minister from the
Province of Manitoba, who appeared before this committee yesterday by video
One further thing, and then I'll let you
answer. When you recited Criminal Code sections 467.11, 467.12 and 467.13 —
these are three separate charges under this clause — the first one says
"knowingly . . . participates" in an indictable-offence-committing criminal
organization. Then "knowingly instructs" is in section 467.13 — the same
criminal organization with the qualifying elements, but "knowingly" is
nowhere in this section.
So it distinguishes itself, and the
constitutionality of the provision may be visited because of that.
Could you explain why you said that we need to
amend this bill, first, to include a section dealing with a paragraph
Mr. Spratt: Section 196 deals with the
written notice and deals with intercepts. You can see already if you look at
paragraph 196.1(5)(a), specifically, that it already includes in that
section the three sections you have mentioned.
Senator Baker: Yes.
Mr. Spratt: So it would be important for
completeness, especially in terms of subsection (5), which is a "despite"
clause, that this section be included, as well.
The oversight you spoke of with not using the
word "coerce" in dealing with the youth portion — and I can only assume it
is missing the consequential amendment in 196 — speaks to not only the
complexity of Criminal Code but sort of how unadvisable it can be to tinker
with something that already works. This works as it is.
When we look at, for example, the coerce
section, where you might want to have "coerce" the most, especially given
now that we are talking about Internet safety, privacy and information
that's publicly accessible, the coercion of young people is perhaps most
important. You could imagine that you get some information on a young person
through Facebook, the Internet or through something they posted, the real
danger is that such could be used to coerce them to do something they
wouldn't do otherwise. Certainly, that should be in that section.
But the point is that we need not have this
debate. We need not risk making mistakes; we need not risk having a
provision that is too narrow and different without those factors that the
Crown need not have to prove. We need not have a section that is ripe for
constitutional attack — and new sections invite constitutional scrutiny. We
need not have all those problems, because the solution is already in the
Criminal Code; it's already there, applied and mentioned in all the cases
that deal with criminal organization. Just search "criminal organization and
recruit" on CanLII, Quicklaw and Carswell, and you'll see they all come up
with reference to this, quoting the minister at the time saying the intent
of Parliament is made clear.
Senator Baker: She did so before this
Mr. Spratt: So don't open up the can of
worms; leave it closed. This works perfectly well. Complexity should be
Senator Plett: I wish we had an hour and
half this afternoon instead of the short time we have. Mr. Spratt, let me
open with this, and you don't even have to answer the question, but I'll ask
it anyway: Do you ever find yourself on the same side of an issue as the law
enforcement officers? It seems that every time we have a bill here, you're
on one side and they're on the other. Why is that?
Mr. Spratt: I don't view it "sides," so to
speak. I'm not a member of a political party; I do my work in court. I
follow the evidence, and it so happens that, sadly, recently, the evidence
has not supported the measures that we've seen. I was here before this
committee on the bill that came out of the Tse case, dealing with
emergency intercepts. You'll recall that one of the things I said then was
that it's a pleasure to actually be here and agree with measures. I think I
was even quoted in some debates.
So I do agree with things. Unfortunately, in
that case, the bill was initially found to be deficient. After it went to
the Supreme Court, the Supreme Court said it was deficient. Then there was
some legislation based on evidence. So I was agreeing with the Supreme Court
at the time but also with the government at the time.
Therefore, I do agree with law enforcement
quite a bit. I agree that recruitment into a criminal organization should be
criminalized and discouraged, and I'm thankful it is already in the Criminal
Senator Plett: Mandatory minimums have been
around for a long time; this government did not initiate them. They have
been there for crimes that are particularly heinous and offensive. Aside
from the fact that this law doesn't have to be here, because it is somewhere
else — obviously law enforcement doesn't agree with you. Justice Canada
doesn't agree with you. We need to have this law.
But aside from that, let's talk about the
mandatory minimums and what this bill seeks to do. I would say this to both
of you: You've made a great case for Aboriginals in that they are
overrepresented in prisons and so on, but I would think that, because of
that overrepresentation, this bill does more for Aboriginals than it does
for everybody else, if that overrepresentation is there. This seeks to help
all young people, not just certain segments of our society — all young
people, certainly including Aboriginals.
We had Minister Swan and Mr. VanMackelbergh.
Today, we've had Mr. Stamatakis talking about mandatory minimums. They say
they do work in ensuring a guaranteed consequence for action.
So I would rather prefer that people are
recruiting gang members in prison than on the schoolyard. If someone is
going to be out there recruiting, let's have them recruit in prison, not on
the schoolyards. That's what this bill is speaking to.
I would like to hear your comments. I know you
will do this from a legal perspective, but in your heart of hearts, this
bill speaks to helping children, to punishing adults, and we need to draw a
line somewhere — 18, 17. The law says you are an adult at 18 and you are a
child till then, so the definition of that is set out and we have to draw
the line somewhere.
I would like to have your comments on that and
whether, with a heinous, offensive crime such as recruiting Aboriginal
youth, people should not face a mandatory minimum sentence.
Ms. Big Canoe: Thank you, Senator Plett. I
would like to speak to the fact that in the scenario you've given me, and
you've stated clearly you prefer to see recruitment occur in custodial
facilities than to youth, I would submit maybe that's where it starts. Maybe
that's where expansion of affiliation starts. It's when the offenders go
back to the communities that recruitment of youth occurs.
I know you say there is a line drawn, but
arguably an 18-year-old exposed to this law is, quite frankly, youthful and
falls within the parameters of what is known as youthful gangs. Most gangs
have an age range between 12 and 24, with some members in their 30s.
Quite frankly, I don't see the difference. If
anything, it perpetuates a legacy that's happening and is treated more
violently. When you have over-crowded provincial and federal institutions,
which we currently have, taking into account remanded as well as sentenced
offenders, it provides opportunity. When someone is sitting in remand they
are in dead time, which means no programming is put in place. It gives them
an awful lot of time, while sitting in custody, to be meeting with people
and affiliating with people they would never have had exposure to in the
They come back to communities, not making the
communities safer but now having a network that once didn't exist. The
longer they're exposed to that, the larger their network gets. Frankly, I
don't distinguish between whether it happens in the community or it happens
in prison. The way that wildfire spreads, this is the way
Aboriginal-specific gangs spread.
It is Aboriginal-specific because most
Aboriginal people who affiliate with gangs only affiliate with Aboriginal
gangs. It's a small number that joins other gangs, such as biker gangs.
Senator Plett: If the bill read that if
you're 25 years old and you recruit a child and we had a grace period from
18 to 24, would you support the bill?
Ms. Big Canoe: Why is it necessary?
Senator Plett: I agree, it shouldn't be
necessary, because I like it at 18. But you've made the point that somebody
18 recruiting a 17-year-old, it's too close. They're 17 one day, the next
day they're 18, and now it's a criminal offence and they'll get six months
in jail. If we gave them the grace of 18 to 25, does the bill become better?
Ms. Big Canoe: No, it doesn't become
better. Again, you're putting in reasonable probability of different
The fact is, the way our judicial system
already works is a judge has that discretion, particularly as it relates to
718.2(e) and what is to be taken into account when you have an
Aboriginal offender before you. It would be up to the judge's discretion to
determine the most fit and appropriate sentence for that offender. That
judge would then have to, applying Gladue principles, take into
consideration, on a case-by-case basis, those factors. Whether it's a
25-year-old recruiting a 17-year-old or if it's a 19-year-old recruiting a
12-year-old, that information would arguably be before the judge. The judge
is in the best circumstance, the local judges on the ground, the prosecutors
and the police on the ground, are in the best circumstance to determine how
and what is important.
Senator Plett: Just like what we're doing.
Senator Rivest: First, I would like to
point out that I share your concerns about minimum sentences in terms of
their effectiveness, their sustainability and their impact on certain
crimes. The current government uses minimum sentences automatically. In my
view, you do not punish a crime, you punish an individual who committed a
crime under a set of circumstances that must be taken into consideration by
the judge. Using minimum sentences flies in the face of the Criminal Code,
which judges individuals and provides a great deal of discretion to judges.
However, if the current government is systematically or almost
systematically applying minimum sentences, is that consistent with the
Canadian Charter of Rights and Freedoms? Is it possible to challenge certain
types of crimes in court? Can the constitutionality of a minimum sentence be
Mr. Spratt: The starting point is this:
Minimum sentences, in some circumstances, have been found to be
constitutional. The starting point is that other governments in the past
have brought in minimum sentences.
As I told my kids yesterday, just because your
sister did something that's wrong and gets punished for it doesn't mean that
you should do something that's wrong and get punished for it.
We know the Supreme Court passed judgment on
the constitutionality of specific minimum sentences and found them to be
unconstitutional. That determination is geared by reasonable hypotheticals.
There are reasonable hypotheticals, given the breadth of the criminal
organization legislation, that could lead to constitutional problems with
the application of this minimum sentence.
What is important to note is that there is no
criminological evidence and no expert evidence that shows that minimum
sentences deter people from committing crime or make the community safer.
What we do know is that minimum sentences are
good at putting people in jail and punishing people. The problem is that
sometimes that punishment is too harsh. The problem is that sometimes, as in
this case, as Ms. Big Canoe said, incarceration can actually make things
worse because people are released eventually. It's the lack of reliance on
expert evidence, as it relates to minimum sentences, that can lead to
constitutional problems, and that's what we've been seeing as of late.
The most striking comment I read in the
testimony when this was at committee before the House of Commons was a
member of the government said, in relation to experts, that experts were
what they called folks with good, old-fashioned common sense. That is not
what an expert is.
What I can tell you, in terms of good,
old-fashioned common sense, is that anyone committing a crime — especially
any youth committing a criminal organization crime — doesn't pick up a
Criminal Code, read through it and say, "Wow, there's a minimum sentence.
I'm not going to go ahead with this." Good, old-fashioned common sense is
good for telling us one thing: it tells us that that's not what happens.
That's what experts tell us, too. It doesn't deter; it makes things worse.
Given the reasonable hypotheticals presented
today, that's what leads to constitutional infirmity here, and this is very
ripe for challenge.
Senator McIntyre: Thank you both for your
As you know, the bill covers a lot of ground:
criminal organization recruitment, clause 9; electronic surveillance,
clauses 2 to 6; disclosure of income tax information of criminal
organizations, clause 7; sentences to be served consecutively, clause 10;
witness protection, clause 12; DNA samples, clause 13; judicial interim
release, clause 14; and, finally, parole, clauses 15 and 16.
I don't intend to review with you each clause.
I think you have made it very clear that this bill is not necessary and
therefore it should not become law. Apart from the fact that it's not
necessary and should not become law, and apart from the issues raised by
Senator Baker regarding coercion, is there anything in this bill that you
see in a positive light, assuming it becomes law?
Mr. Spratt: I think the intent of the bill
is definitely positive. That is a positive feature. It doesn't detract from
the points I've made.
Of the other consequential amendments in here,
the meat is clearly clause 9, the new offence. The other clauses are
necessary to make sure that what is currently on the books would apply to
the new provision. I suppose that strengthens my point that this may not be
necessary. If you have to amend everything else to bring this into line,
it's already there in the other sections.
It's positive that someone has done a search of
the Criminal Code and found where to insert the proper things. That's
positive. Other than the intent and the detailed amendments of all the other
sections to make everything make sense, there's nothing entirely positive,
because it lacks utility to some extent.
Senator McIntyre: Don't you think that the
legislation brings clarity in terms of the other three serious offences
regarding organized crime — 467.11, 467.12, and 467.13?
Mr. Spratt: In some respects, it does bring
clarity. You can bring clarity either through that or through other public
statements because there's one area in which it's crystal clear that this
applies, and that's in the courts where it will actually apply. To the
extent that clarity is needed, I think that can be done in other respects
that don't bring the same problems that might be brought with this bill.
Senator McIntyre: Ms. Big Canoe, do you
wish to add anything?
Ms. Big Canoe: I would agree that the
intent or the objective is obviously a positive one. I just believe there
are better means to go about it. If I'm being completely frank as a
litigator who practices, the best part of this bill is that it is so
vulnerable to constitutional challenge from an Aboriginal perspective,
specifically as it relates to Gladue and Ipeelee principles.
If it is passed, then there's this opportunity. So that should be viewed as
a weakness of the bill that's particularly before you.
Senator McIntyre: You're looking at
mandatory minimum sentences as far as Aboriginals are concerned?
Ms. Big Canoe: As far as Aboriginals are
concerned. I would argue it would apply beyond Aboriginal individuals, but
particularly as it relates Aboriginals.
Senator McIntyre: As a Charter argument?
Ms. Big Canoe: As a Charter argument, yes.
It's something that's already working its way up through the courts. In
Ontario, it's before the Court of Appeal already, particularly as it relates
to Aboriginal offenders in recently passed legislation. I assume it will
work its way up to the Supreme Court, at which point, there is that
vulnerability. It's up to the court to determine the constitutionality. The
brief that I provided speaks to constitutionality or Charter-proofing any
legislation. That's an important consideration. Otherwise, it is actually a
waste of resources to litigate things that are costly, and the outcome, at
the end of the day, is going to be. It also puts people whose constitutional
rights may be being harmed somewhere like remand or convicted and waiting
for an appeal process to come up when, in fact, their rights have been
Senator Batters: First of all, Mr. Spratt,
I was very happy to be reminded of your support for the R. v.Tse
bill because that was actually a bill I sponsored. Given the fact that you
were finding yourself in the unusual position of being in favour of a piece
of government legislation, I'm proud to say that I helped to see that that
came into law.
Dealing with the hypothetical that you talked
about earlier, you were speaking about three 18-year olds selling pirated
software and recruiting someone else. You also referred to a drafting issue
where you said that this particular bill's provisions don't include certain
provisions that are included in 467.11, which makes certain elements about
criminal organizations unnecessary for the Crown to prove. If you're correct
on that, wouldn't the fact that those elements are going to be required to
be proven mean that, in the hypothetical situation you're talking about, it
would be very difficult to prove that those particular individuals would be
part of a criminal organization?
Mr. Spratt: No, that's just one
hypothetical. You could think of another offence committed by young people
in an organized way.
Senator Batters: Let's deal with that one.
Mr. Spratt: Currently, under the provision,
whether this provision exists or not, those individuals could be deemed to
be a criminal organization, given that there are more than three people and
that they meet the other definition.
But, under the new section, it actually may be,
in some respects, sometimes harder to prove that the recruitment was
actually an offence because, if you look under the legislation —
Senator Batters: In your hypothetical,
wouldn't that be a good thing?
Mr. Spratt: It would be a good thing for me
as a criminal defence lawyer. It would be a good thing for my clients. It
would be an incredibly bad thing when you're looking at, perhaps, more
Senator Batters: Right, but we're talking
about that particular one.
Mr. Spratt: It may save those specific
offenders, but you may have someone who is dealing crack cocaine in schools
and recruits someone and is also not captured by the new legislation. So
it's not a positive thing. That uncertainty and ambiguity is not positive.
Again, in the provision as it currently exists, it's made clear that the
prosecution need not necessarily prove that the organization actually
benefited. That's not an essential element. That may not need to be proven
under the new legislation as well, but I query why it is absent there. For
what purpose? It doesn't connect with what's there already. I don't see,
logically, why it's not there. It can raise problems in that it can make it
easier for people who commit serious offences to be found not guilty or
harder for them to be prosecuted, but it doesn't preclude, at all, unjust
applications of mandatory minimum sentences for some of the less serious
hypotheticals that you can imagine.
Senator Batters: I'd like to move on to Ms.
I'm from Saskatchewan, and Aboriginal gangs are
a major problem there. I would contend that the provisions of this bill will
really help Saskatchewan's large Aboriginal youth population, thousands of
whom, right now, are being targeted for gang recruitment in Saskatchewan.
What I would say to you is that, instead of focusing on those adult
Aboriginals who are using unscrupulous criminal tactics, horrible things
we've heard about here, to recruit vulnerable Aboriginal youth, why not
focus on the really positive effect this bill will have for so many
thousands of vulnerable Aboriginal youth all across Canada? I'm specifically
thinking, today, of the ones in Saskatchewan.
Ms. Big Canoe: Thank you, Senator Batters.
The perception may not be so accurate. You're absolutely correct that the
largest number of Aboriginal-affiliated gangs are in Saskatchewan.
Saskatchewan also happens to have the largest Aboriginal inmate population,
at both the federal and provincial levels. Upwards of 80 per cent of the
offenders who are serving or in remand are Aboriginal. The brief I provided
touches on some research around the institutionalization of Aboriginal
people through child apprehension. There are a number of factors that
actually distinguish and make Aboriginal gangs and Aboriginal youths’
involvement with gangs very different, and one of those is the continued
institutionalization. One perspective, for example, is that it perpetuates
things similar to residential schools and the Sixties Scoop — child
apprehension. We are currently apprehending Aboriginal children at a higher
rate than we did during the height of residential schools, and these are all
factors that actually direct youth into gangs because they have issues of
lacking parenting, good resources, educational opportunities, job
opportunities. A gang, all of a sudden, becomes very appealing and
Saskatchewan is a good example. In communities where a number of people are
institutionalized or penalized and go into custody, where is the deterrence
in a mandatory minimum sentence when most of your cousins and relatives and
friends and a large number of your youth and young adults are in custody?
There is no deterrent value. I really struggle to try to find a positive
aspect. I think what would be more positive would be to remove the mandatory
minimum. Put the research in place. Do what we know works, which Public
Safety Canada has already done at least one report on, and start putting
those preventative strategies into place. That would be a better use of
taxpayers' money than simply warehousing Aboriginal people because that's
what we're still doing; we're warehousing Aboriginal people.
Senator Frum: I've heard you say that you
think the intent of the bill is positive and that you think that recruitment
of youth to criminal organizations should be criminalized. I understand your
argument that you think it's already covered, so let's put that to one side
for a minute.
If you believe it should be criminalized but
also believe a six-month penalty is too harsh, I'm having difficulty
understanding your idea of criminalizing a crime as serious as recruiting a
child into a life of crime. You do think it's a crime. You think it should
be criminalized. I think you said that six months is too harsh a punishment.
You say it won't achieve rehabilitation; it won't bring deterrence. There's
no evidence for that. Okay. Putting that aside, we're left with the
punishment itself and societal sanction, and six months is too much for you.
Mr. Spratt: No. I wouldn't want to be heard
to say that in all cases six months is too harsh a sentence. Clearly, six
months would be grossly inappropriate in many cases. The problem with
minimum sentences, when you look at the research, the empirical evidence of
it, is that there can be reasonable hypotheticals in which a judge, acting
judicially in exercising their discretion, would impose less than six
The hypothetical I gave you was an individual
with no criminal record engaged in a non-violent crime who is youthful,
pro-social, lots of support, going to university and committing a more minor
crime than we normally think of when we think of criminal organizations. A
six-month sentence in that case, I would submit, would be unfair and
ultimately would be ruled unconstitutional. Clearly, if you're recruiting
young children to deal crack cocaine in the schoolyard for the benefit of a
criminal organization because you're greedy and you're a drug dealer and the
member of an urban gang, clearly six months is completely appropriate. In
fact, more would be completely appropriate.
Senator Frum: And would be allowable.
Mr. Spratt: And would be allowable.
But the fact is that there's no evidence on
these low sentences. Show me a case where someone has been recruited into a
serious, violent urban gang or an organized motorcycle gang and the courts
don't give them a serious sentence. Show me that. I don't think you can show
me that, because the courts apply the discretion they're given. These are
viewed as aggravating factors. In 90 to 97 per cent of cases, something
substantially more than six months is required. But where the courts strike
down these offences, whether gun crimes or other mandatory minimum
sentences, is where there's a reasonable hypothetical that could arise or
that does arise where that sentence would be unfair, overly harsh and
unconstitutional. Gun crimes are some of the most serious crimes we see, yet
those minimum sentences were struck down not because courts give lenient
sentences to people who traffic or deal or use guns but because there can be
examples, which we might not be able to think of right now around this
table, of reasonable hypotheticals that can arise because the combinations
of offender and offence type, those permutations and combinations, are
almost infinite. If some of those permutations and combinations, that
reasonable hypothetical, would mean that six months is unfair, the judge
says I would give a suspended sentence or one, two or four months, but I
can't. That's where laws get struck down as unconstitutional. That's how we
end up at the Supreme Court. Ultimately, that leads to perhaps this section
not applying the way it should.
It would be different if there were a stack of
cases where courts were handing out inappropriate sentences. Sometimes we
hear arguments that it's occurring, but I haven't heard that argument with
respect to recruiting people for criminal organizations. That's why
mandatory minimum sentences, quite frankly, are pretty offensive to the
Senator Frum: We heard from our police
witnesses that there's not a lot of prosecution. It's not a crime that's
currently prosecuted. One thing that legislators try to achieve when they
change the Criminal Code like this is to put an emphasis on the type of
crime that society finds repugnant, and they want to see an emphasis placed
Mr. Spratt: Do it in a constitutional way
that doesn't cause problems. Have the prosecutors apply the law
appropriately. There aren't a lot of cases dealing with recruiting and
criminal organizations where somebody is prosecuted for recruiting someone.
Most of the cases involve recruitment and then all of the other criminal
acts as well. There are cases where recruitment is a key factor across the
country in these prosecutions and in the case law, but there are ways to
achieve. We can all agree that recruitment into serious criminal
organizations should be dealt with seriously and that six months probably
isn't the most appropriate. I'd like us to be able to agree on as well, if
we sit down and look at the evidence dispassionately, the fact that
criminologists and the evidence don't support mandatory minimum sentences to
protect the public, to deter. If they want to be used for other means to
denounce or punish, that's fine, but they don't deter.
Senator Frum: That is fine. Punishment can
be fine, too.
Mr. Spratt: If it's the position that this
law is to punish and it does not deter, it will not prevent crime. It will
send people to jail.
Senator Frum: It's not necessarily that,
but I'm saying you and I could agree that it will punish; and I believe it
will deter. I know we're not going to agree on that.
Mr. Spratt: We won't because when I say it
won't deter, my basis is not just on a belief or as was said below based on
good, old-fashioned common sense but rather on the evidence. You can say
yes, this law will be very good at punishing and deterring but it does so
Senator Frum: Again, we heard that one of
the reasons criminal gangs recruit young people is that they're well aware
of what's in that Criminal Code. They know if they commit the crime, they
will get a harsh sentence, but if they get a 15-year-old to do it, the kid
won't. They are perfectly well aware of what's in the Criminal Code. I do
believe it will deter them.
Mr. Spratt: I hope that belief is shown in
The Chair: We're not going to continue this
back and forth debate. It's had more than adequate time.
I have one quick question for Ms. Big Canoe.
You referenced the Gladue principle a couple of times. I'm curious:
In terms of mandatory minimums and your opposition to them and the impact
they have on the Aboriginal community, are there any mandatory minimums in
the Criminal Code that you can agree with that you think are appropriate?
Ms. Big Canoe: You're putting me on the
spot a little, Senator Runciman. I would say that, in principle, no, because
we take systemic approaches to systemic problems. When we address in
litigation or get involved in a test case, it's always around some of the
systemic issues. Gladue and Ipeelee have clearly set out that
the judge must take judicial notice of the colonial legacy and the harms.
Part and parcel of that are mandatory minimums. Why? Because mandatory
minimums have impacted or affected Aboriginal offenders more adversely than
others because they're often coupled with multiple charges, over policing,
lack of support, lack of resources, and a colonial legacy. That’s the short
The Chair: I understand that, but I'm
thinking of repeat drunk driving and murder. You express sort of a blanket
rejection of mandatory minimums.
Ms. Big Canoe: For the most heinous crimes
where there's mandatory minimum, I'd have to agree with my colleague. There
are certain things that absolutely require accountability to the victims,
the community or the offenders. Mandatory minimums that we see crop up in
the current legislative environment are for 90 days, four months and six
months. They're not the same. If I could just say that the small, short,
sharp ones bear no empirical evidence that they're doing anything —
established practices of the code. We always start from a presumption of
innocence when we represent an individual and that's kind of what criminal
defence lawyers tend to do.
The Chair: Thank you both for your
contribution to our deliberations. We much appreciate your time and your
Members, in two weeks, on May 28, we will
continue with Bill C-394. We will hear from police representatives and legal
organizations. We have invited again the sponsor of the bill, Mr. Gill. The
clerk will send out notices once the witnesses and times have been
confirmed. I suspect most of you know that Bill C-23 is now in the chamber
and will be our next order of business when we complete Bill C-394.