R. v. Howe, 2016 NSSC 267

SUPREME COURT OF Nova Scotia Citation: R. v. Howe , 2016 NSSC 267 Date: 20161026 Docket: CRH No. 441632 Registry: Halifax Between: Her Majesty the Queen v. Duayne Jamie Howe, Patrick Michael James, and David John Pearce Restriction on Publication:

Section 486.5 Judge: The Honourable Justice Peter Rosinski Heard: May 25, 2016 in Halifax, Nova Scotia Final Written Submissions: May 25, 2016 Counsel: Glen Scheuer, for the Crown Patrick Atherton for the Defendant, Duayne Jamie Howe Trevor McGuigan for the Defendant, Patrick Michael James Patrick MacEwen for the Defendant, David John Pearce By the Court: Introduction [ 1 ] The defendants herein are alleged members of a criminal organization, the Bacchus Motorcycle Club. At their trial, the Crown will be asking the court to find as a fact, and declare, that the Bacchus Motorcycle Club is a criminal organization contrary to

Section 467.12 of the Criminal Code . The Crown intends to produce evidence from which the court may directly or indirectly conclude that the Bacchus Motorcycle Club is a criminal organization, and that each of the defendants are members of that criminal organization. The Bacchus Motorcycle Club will be suggested to be a criminal organization in part based on the regalia its members wear, including a so- called “three patch” motorcycle clothing patch.

Such “three patch” combinations generally are considered to refer to: a top patch containing the name of the motorcycle club – in this case, “Bacchus MC”; a middle insignia or logo – in this case, a head bearing an early period Greek armoured helmet; and reference to a territory – in this case “Nova Scotia”. [ 2 ] The Crown will suggest that a “three patch” motorcycle clothing patch is seen by criminal organizations to be a representation of their exclusive authority within that subculture over the territory in question; and that they will vigilantly guard against any purported encroachment on their territory, including any person or group purporting to wear a “three patch” motorcycle patch claiming “Nova Scotia” as its territory. [ 3 ] R.M. was led to believe that in order to have any form of designation of “Motorcycle Club” on a patch, combined with “Nova Scotia”, visibly shown on motorcycle clothing or otherwise in Nova Scotia, he would have to obtain permission from the largest “Motorcycle Club” in Nova Scotia.

His own internet research and contact with others at the time suggested that this was the Bacchus Motorcycle Club. [ 4 ] R.M. initially approached Patrick James in 2012, because he believed he was the Sergeant-at-Arms, and as such, the proper representative of the Bacchus Motorcycle Club from whom he could obtain permission to start his own recreational “motorcycle club” with several friends – including, he thought, a “three patch” unique to his own recreational club. [ 5 ] From approximately January to September 2012, R.M. had direct communications with Mr. James, who presented himself as,

and dressed as if he was, associated with the Bacchus Motorcycle Club. The Crown will argue that Mr. James’s communications with R.M. were made “wrongfully and without lawful authority for the purpose of compelling R.M. to abstain from starting a motorcycle club and participating in motorcycle events, which R.M. had a lawful right to do, intimidate R.M., contrary to Section 423 (1) of the Criminal Code ”. [ 6 ] I am being asked by the Crown, to rule as admissible at the trial of the defendants, similar evidence of Mr.

James’s communications with S.H., who like R.M., is also a recreational motorcycle enthusiast. [ 7 ] During the period June 21 – 23, 2012, Mr. James allegedly communicated through Facebook with S.H. In 2011, S.H. designed and produced his own personalized “three patch” combination that he had sewn onto his motorcycle clothing. On the back, he had in writing “Wolverines MC”, then a logo representation of a wolverine, and thereunder “Nova Scotia”. In Facebook communications, it is alleged that Mr.

James actively dissuaded S.H. from wearing such a “three patch” combination on his motorcycle clothing, and from publicly making pictures thereof available. Consequently, S.H. removed his personal profile Facebook photo of him wearing his own personalized “three patch” combination. He also removed the three parts of his patch from his motorcycle clothing. [ 8 ] The Crown says that Mr. James’s communications with S.H. are relevant to Mr. James’s communications with R.M. – they concern the same time-period and same subject matter. I conclude that the anticipated evidence of S.H. is provisionally admissible.

If the evidence at trial approximates what I have available to me at present, then the evidence of the S.H. is provisionally admissible, subject to the defendants being given the opportunity to object to the evidence by either reiterating their present position, or refocussing the court’s attention otherwise regarding the admissibility thereof, should the evidence not approximate what I have available to me at present, or if it is significantly different.

Background [1] 2 As alleged members of the Bacchus Motorcycle Club, the defendants are charged with committing offences in relation to R.M. under Sections 264.1(1)(a), 264(2), 346 and 423 for the benefit of, at the direction of, or in association with a criminal organization contrary to

Section 467.12 of the Criminal Code . The offences are alleged between January 1, 2012 and September 15, 2012, and are set for trial between November 21, 2016 and December 8, 2016.

The allegations are as follows: All three defendants are "full patch" members of the Bacchus Motorcycle Club, which is a criminal organization; R.M. is a simple motorcycle enthusiast; he intended, with some friends of his, to establish a recreational motorcycle club in the area of Halifax County, Nova Scotia; he decided that the club should have its own distinctive name, and logo; the name and logo, and "Nova Scotia" [referred to as a "three patch" motorcycle club] would then be sewn onto the jackets of the club's members; before doing so, he searched the Internet, and became convinced that he should first seek the approval of the most prominent motorcycle club in the area; consequently he sought out the approval of the Bacchus Motorcycle Club; he had ongoing communications and personal meetings with Patrick James, who held himself out as the representative of the Bacchus Motorcycle Club for such purposes; Mr.

James persuaded him that he could not have a motorcycle club with a "three patch" design as it would be seen as a provocation and sign of disrespect by existing "three patch" motorcycle clubs in Nova Scotia (including the Bacchus Motorcycle Club); over a lengthy period of time and discussions, Mr.

James, sometime in July -- August 2012, approved of R.M.'s proposal to have a "one patch" [the placing on the back of their leather jackets a single patch with the words -- "The Brotherhood"] motorcycle club associated with The Brotherhood Motorcycle Club from Montréal; to formalize their association with The Brotherhood, between August 24 and 26, 2012, R.M. and friends travelled to Montréal for a short vacation; on their return, while at the airport on August 26, one of his club members received a phone call from a neighbour that there were five members of the Bacchus Motorcycle Club at his house looking for him; shortly thereafter, R.M. received a number of text messages in close succession from Patrick James - "was hoping to run into you today.

If I don't hear from you, I will just pop in your office tomorrow" - and "in Montréal by chance?" - and - "will see you as soon as you get back. Don't waste your dollars on any souvenirs" - and "saw you three came out of the closet on Facebook"; Patrick James visited R.M. at his office the next day dressed in his Bacchus Motorcycle Club leather vest and regalia [the so-called "cut" and "colours"]; Mr. James was very upset and told R.M. in part - "What the fuck were you thinking? Do you think you could get away with something like that?

I fucking told you that you are not having a fucking patch. [R.M. interjected Patrick James: you told me no three-piece -- you told me that the Brotherhood name was okay] I fucking told you that you were not to have a fucking Montréal Brotherhood patch down here and you went ahead and fucking did it. We were driving around the whole weekend looking for you because of that picture that went on Facebook, you guys getting patched over in Montréal... because those were coming off your back... you fucking disrespected us.

You more or less or might as well have told us to go fuck ourselves by putting those patches on your back"; Mr. James offered R.M. a way to appease the Bacchus Motorcycle Club -- immediately R.M. was to have photographs taken of their patches and clothing being cut up, and the Montréal club is to put a notice on Facebook that it has no

chapter in Halifax; on August 28, 2012, R.M. sent the pictures of their clothing/patches being cut up, by email to Patrick James at BacchusHfxPat@eastlink.ca; he simultaneously also sent Mr. James a link to the expected Facebook announcement, which had not yet been posted; R.M. had discussions with his own club members and they decided they should have their cut-to-pieces vests/patches personally turned over to Patrick James; another member of R.M.'s club delivered the remnants of their vests to Mr.

James who was in the company of four or five members of the Darksiders Motorcycle Club; while that appeared to appease the members of the Bacchus Motorcycle Club, about two weeks later, in the evening of September 14, 2012, R.M. and a number of other individual recreational motorcycle enthusiasts attended a charity event; after a while R.M. and others with him noticed six members of the Bacchus Motorcycle Club wearing their regalia; Mr. Howe and Mr. Pearce were among them and in close proximity to R.M., at which point Mr.

Howe angrily said to him - "I'm telling you right fucking now, get on your fucking bike and get the fuck out of here. You're not fucking welcome here. The only reason why we don't kick the living shit out of you right fucking now is because there's too many fucking people around. You're not welcome at any fucking biking event in Nova Scotia... I'm telling you to get the fuck out of here right now or you're going to get the shit kicked out of you... What makes you think you can fucking disrespect us and then show your fucking face around here?... Oh, getting the fucking patch from Montréal?

You didn't fucking disrespect us?... You go fucking say your hellos, put your money in, and get on your bike and get the fuck out of here, and we don't want to see you anywheres at any events in Nova Scotia. You are fucking done." 5 R.M. and his wife and friends were very shaken by what had taken place. R.M. decided to call RCMP Constable Susan Camus, in an

effort to understand how best to deal with the situation. By 11:00 a.m. on September 15, 2012, he received a call back from RCMP Sgt. Stephen MacQueen, who was with the CFIU [Combined Forces Intelligence Unit] which was an association between the RCMP and the Halifax Regional Police intended to gather intelligence regarding organized crime activities in Nova Scotia. He arranged to meet R.M. at his house that evening to discuss his options. Sgt. MacQueen and then - Cpl. David Astephen met with R.M. and family between 9:30 and 11:30 p.m. Sgt.

MacQueen made brief notes after his arrival at home that evening; he also made relevant notes during the day at the detachment on September 16, 2012 -- [Exhibit VD2-- 1]; Sgt. MacQueen also made relevant notes in a supplementary occurrence report on September 20, 2012 -- [Exhibit VD2-2]; Cpl.

Astephen made brief notes shortly after the end of the September 15, 2012 meeting and those in relation to September 16th were made contemporaneously with the events of that day -- [Exhibit VD2-3], he also authored a General Report on September 24, 2012, summarizing the events of September 15-16, 2012 [Exhibit VD2-4]. 6 On September 16, 2012, between 2:30 p.m. and 4:30 p.m., R.M. gave his audiotaped statement to then Cpl.

Astephen at the RCMP detachment in Lower Sackville. 7 On September 20, 2012, search warrants were executed and arrests effected. 8 At trial, it is anticipated that the Crown will also lead expert evidence, in an effort to establish that the Bacchus Motorcycle Club is a criminal organization, and was so at the time of these offences, and that Mssrs. Howe, Pearce and James were then acting for the organization. [From 2016 NSSC 151 ] Positions of the Crown and Defendants [ 9 ] In this context, the Crown has made application for an evidentiary ruling regarding the proposed evidence of S.H.

It characterizes the evidence of S.H. as “extrinsic act/character evidence” relevant directly to Mr. James, and indirectly to the other defendants. The relevance is said to be “to the essential elements of establishing that the Bacchus Motorcycle Club is a criminal organization as defined in

Section 467.1 of the Criminal Code , and that the offences in question were committed for the benefit of, at the direction of, or in association with that criminal organization.” [ 10 ] The Crown argues that the probative value of this evidence outweighs its prejudicial effect upon the fair trial rights of the defendants, and particularly Mr. James. The defendants, speaking with one voice, take no issue with the law cited by the Crown. They presented no written submission, but argued that the probative value of the evidence is greatly outweighed by the prejudice to the fair trial rights of Mr.

James and the defendants generally, and it should therefore be ruled inadmissible. The proposed evidence of S.H. [ 11 ] S.H., in his preliminary inquiry transcript [Exhibit VD3– 1], testified in part that: He bought a Harley Davidson motorcycle in 2009/2010.

S.H. was not interested in joining a recreational motorcycle club, but was repeatedly asked by enthusiasts in the area to join their club. “I was not interested in joining a club, so I kept telling them “no”, and they were persistent, so I said “well I’ll make up a fictitious patch and a fictitious motorcycle club and put it on my vest and then they won’t bug me about joining their motorcycle club. So that’s what I did.

I came up with the idea of “Wolverines” and I put on “Nova Scotia” because I live in Nova Scotia and I am proud of Nova Scotia the province I live in, and the picture in the middle there I sort of borrowed that concept from another company so that’s not entirely my design [a Wolverine depiction]. And I come up with this fictitious motorcycle club and I guess I shouldn’t have…”. He had a picture taken from the back, while wearing his unique motorcycle jacket with the three-piece patch on the back. He made it his profile picture on his Facebook page.

In about December 2011, a couple of members of the Darksiders [motorcycle club] “told me that I couldn’t wear that patch. I showed them a picture of it, and they said: You can’t wear that patch. There is already a club in Nova Scotia that has that, has “Nova Scotia” on it, so you have to take that off. And in the spring of 2012 as well – I think it was about April or May – a couple of them sort of reinforced that idea that I couldn’t wear that and they told me I had to take the “Nova Scotia” part off of it and the “MC” part off as well. So I don’t think I wore it on my bike. I just had it for a profile picture.

It looks good.… at that time we had a bit of a conversation on my property, in front of my barn, and at that time I think I told them that if they saw me wearing the patch, they should take it off. And I wasn’t really afraid of them taking it off, because I never wore it.… In June, I got a message….around the end of June 2012 – from a Pat James, on my Facebook private message site,… He was kind of concerned about, I guess this back patch… So I blocked him. And got in touch with the RCMP to see what this was all about.

At that point in time, the RCMP gave me a bit of counselling as to how to handle this, and they suggested that I unblock him and carry on the conversation to try to smooth it over, because I didn’t want to run into any trouble over a fictitious motorcycle patch and motorcycle club.

So I unblocked and we carried on a bit of conversation over the course of, I think a couple of days, then we stopped the course of the conversation.… Well, it was about the motorcycle patch with the “Wolverines” on it and “Nova Scotia” and “MC”, and Patrick at the time filled me in on the protocol of who can and who can’t [wear] motorcycle patches: if you don’t have a motorcycle club, you can’t put “MC” on there, and things like that...

I did have a concern when he told me to take the picture down off my Facebook site and when he told me to remove the certain things from my vest that I had sewed on I thought he must’ve been… I was wondering exactly why, what, what kind of authority that he carried that he could make such demands of that, like that of somebody. [ 12 ] Tendered as Exhibit No. 7 at the preliminary inquiry, and found during a search of Patrick James’s residence in September 2012, was a photocopy of S.H.’s Facebook page profile picture (as mentioned in his testimony showing the back of his three-piece patch motorcycle jacket) – (undated) in handwriting on the 8.5 x 11 page containing the 5 x 7 photograph, it reads: S…H… (asshole) [underlined] works at… He has been warned and says he doesn’t have to ask anybody anything.

[13] Tendered as Exhibit 6 at the preliminary inquiry hearing are three photocopied pages of Facebook communications between“Pat James” and S.H. between June 22, 2012 and June 23, 2012. In part, they read: PJ – the MC on your patch indicates that you have a clubhouse. Let me know the clubhouse address otherwise; I will pop in yourhome/work address whenever I’m close. Later. SH – Hi Pat. I do not have a clubhouse or a club. Is this some kind of a joke? I know some of the guys in some of the local clubs, but I donot want to join a club.

Thanks for asking. [after the initial contact on June 21, SH sought out RCMP advice as to what he should do- they advised unblocking Pat James and tryingto smooth over the matter] PJ – It is not a joking matter. Your profile photo shows a patch [Wolverines] with the Nova Scotia bottom Rocker. Is this you – if not –who? SH – It is me… Why? I’m afraid I do not understand where you are going with this. Did I somehow break some unwritten code ofconduct here? If I did just let me know.… I don’t wear my patch when I am riding … And I don’t belong to any of the clubs.

PJ – This is exactly what you have done and lot of people are/would/will be extremely insulted by that photo/vest. Patches likeyou are carelessly wearing [three-piece MC] are earned through a lot of time, blood and sweat. Those that have put in the effortfor the right to wear such a patch [three-piece MC] will not react favourably to such a slap in the face. From what you have toldme I would assume that you did not have any bad intentions [merely ignorance of patch protocols].

Now that you have been informedotherwise, I suggest that you remove the bottom rocker [Nova Scotia] and MC patches as they indicate a lot more than you areaware. Please also remove the photo from your Facebook as it can only prove to cause bad feelings [some may feel it

an act ofprovocation]. Thanks in advance for your anticipated cooperation. SH – Thank you for filling me in on this protocol. I have never been in any bike clubs and do not know the “ins and outs” of theunwritten?? rules of the road.… PJ -Thank you for taking down the photo. No need to block me. I will not be harassing you. I just wanted to educate you to thepatch protocol as some can be very extreme when dealing with such infractions and there is no need for incident if no disrespectwas intended.

Please just send a short reply to confirm that the requested alterations to the vest [removal of Nova Scotia and MCpatches] have been carried out and your assurance that nobody will see it again as it previously was and there will be no need forme to contact you in the future… Thanks. SH – I just put my Harley Eagle patch on my vest. I don’t need to have a patch on my back to show I like to bike. Being ignorant aboutthings is not always a bad thing… PJ – Exactly [BTW… I was not using ignorance as an insult… just a lack of knowledge on the subject]. Thank you for the quickresponse to my recommendations.

Good riding to you.” Analysis [14] In the preceding paragraphs, I have outlined in some detail the nature of the allegations herein. In light of those, it is nextappropriate to set out the constituent elements of the offences charged against Patrick James in particular, as it is his conduct that formsthe basis of the charges between January 1 and September 15, 2012, whereas Mssrs. Pearce and Howe are only directly implicated in theincident (threats made in person) involving R.M. on September 14, 2012.

The offences charged and the relevant law [15] The offences charged herein and the essential (mens rea and actus reus) elements thereof are: 1. Uttering threats to cause [serious] bodily harm to R.M. or his family -

Section 264.1(1); see R. v. McCraw (SCC), [1991] 3 S.C.R. 72; R. v. Clemente (SCC), [1994] 2 SCR 758; R. v. O’Brien, 2013 SCC 2; R. v. McRae, 2013SCC 68: • The conduct viz. uttering threats to cause [serious] bodily harm to R.M. or his family; • Would a reasonable person, fully aware of the circumstances in which the words were uttered or conveyed, perceive them to be athreat of [serious] bodily harm? • That the defendants’ intent was for the words, spoken or conveyed, to intimidate or to be taken seriously 2.

Extortion of R.M. – [“without reasonable justification or excuse commit extortion of a person known as R.M.”] – Section346; see R. v. Davis (SCC), [1999] 3 S.C.R. 759; R. v. Natarelli and Volpe, (SCC), [1967] S.C.R 539;R. v. Alexander (2005) (ON CA), 206 CCC (3d) 233 (CA) , leave to appeal denied [2005] SCCA No 526; and R. v.Barros, 2011 SCC 51, per Binnie J.: 53 Extortion requires the Crown to establish beyond a reasonable doubt (

i) that the accused has induced or attempted to inducesomeone to do something or to cause something to be done; (ii) that the accused has used threats, accusations, menaces or violence; (iii)that he or she has done so with the intention of obtaining something by the use of threats; and (iv) that either the use of the threats or the

making of the demand for the thing sought to be obtained was without reasonable justification or excuse: see R. v. Natarelli, (SCC), [1967] S.C.R. 539; D. Watt, Watt's Manual of Criminal Jury Instructions (2005). 54 Of particular pertinence in Natarelli is the instruction by Cartwright J. (later Chief Justice), speaking for the Court, that "one itemin the accused's course of conduct" is not to be isolated, but taken in the context of the "course of conduct considered in its entirety" (p.546).

Although Cartwright J. was speaking in relation to whether the conduct was "justifiable or excusable", his observation applies withequal force to all of the elements of the charge of extortion. 55 The need to view the conduct of the accused in its entirety and in context was further addressed by the Ontario Court of Appealin R. v. Alexander (2005), (ON CA), 206 C.C.C. (3d) 233, leave to appeal refused, [2005] S.C.C.A. No. 526; [2006]1 S.C.R. v. It was argued in that case that extortion was not made out because the "threats", however distasteful, were not themselvesunlawful.

Doherty J.A. commented: When an accused charged with extortion has used threats in an attempt to collect a legitimate debt, the trier of fact must consider allof the circumstances, including the nature of the threat and the nature of the demand, to determine whether the Crown has proved beyonda reasonable doubt that there was no reasonable justification or excuse for the threat. [para. 84] (See also R. v. Royz (2008), 2008 ONCA 584 , 248 O.A.C. 361.) 3.

Intimidation of R.M. - [“wrongfully and without lawful authority for the purpose of compelling R.M. to abstain fromstarting a motorcycle club and participating in motorcycle events, which R.M. had a lawful right to do, intimidate R.M.”] –

Section 423;see R. v. Basaraba, (1976), (MB CA), 24 CCC (2d) 296 (Man CA); R. v. Armstrong, 2012 BCCA 248 leave to appealdenied [2012] SCCA No 529, and R. v. Bergeron, 2015 BCCA 177 (albeit regarding s. 423.1); R. v. Branscombe (ONCA), [1956] OJ No. 374 (CA); R. v. Lenton [1947] OJ No 493 (CA); R. v. Tatton, 2015 SCC 33: • Wrongfully, and in the absence of lawful authority, by words or conduct that fall within the wording of Section 423(1) (a)- (g): a. Uses violence or threats of violence to that person or his or her spouse or common-law partner or children, or injures hisor her property; b.

Intimidates or attempts to intimidate that person or a relative of that person by threats of that in Canada or elsewhere,violence or other injury will be done to or punishment inflicted on him or her or a relative of his or hers, or that the property of any ofthem will be damaged; c. Persistently follows that person; d. Hides any tools, clothes or other property owned or used by that person, or deprives him or her of them or hinders him orher in the use of them; e. With one or more persons, follows that person, in a disorderly manner, on a highway; f.

Besets or watches the place where that person resides, works, carries on business or happens to be [also see Section 423(2)]; or g. Blocks or obstructs a highway: • The defendant(

s) intended to cause the words or conduct that fall within the wording of Section 423(1), and intended thewords or conduct for a prohibited purpose [“compelling another person to abstain from doing anything that he or she has the lawful rightto do, or to do anything that he or she has a lawful right to abstain from doing”]. 4. Criminal harassment of R.M. [threatening conduct causing R.M. to reasonably fear for his safety or the safety of hisfamily]– Section 264(2); see R. v. Kosikar (ON CA), [1999] OJ No.3569 (CA), leave to appeal denied [1999] SCCANo. 549; R. v.

Kohl [2009] OJ No.372 (CA), leave to appeal denied [2009] SCCA No. 130; R. v. Roode, 2016 SKCA 34; i. The defendants engaged in threatening conduct directed at R.M. and/or anymember of his family; ii. The threatening conduct caused R.M. to fear for his own, or family member’s,safety; iii. R.M. was criminally harassed; iv. The defendants knew, were reckless, or wilfully blind [R. v. Briscoe, 2010 SCC13, at paras 19-25] that the conduct amounted to criminal harassment; v. R.M.’s fear was reasonable in all the circumstances. 5. “Criminal organization” offence(s) [2] -

Section 467.12 Criminal Code • As an additional super-imposed essential element, it is separately alleged that each of the predicate offences werecommitted “for the benefit of, at the direction of, or in association with a criminal organization, to wit: the Bacchus Motorcycle Club”contrary to

Section 467.12 Criminal Code; see R. v. Venneri, 2012 SCC 33; R. v. Lindsay and Bonner (ON SC),[2005] O.J. No. 2870 (S.C.) affirmed 2009 ONCA 532; leave to appeal denied [2009] SCCC No. 540 and No. 541; and Sections 2

[“criminal organization”; “criminal organization offence”] and 467.1 – 467.14 Criminal Code. [16] The legislative provisions over time are attached as Appendix “A”. [17] Regarding the

Section 467.12 “criminal organization” related offence, the essential elements of that offence are: 1. During the period January 1 – September 15, 2012, proof beyond a reasonable doubt of the existence of a “criminalorganization” – being a group, however organized, that: a. Is composed of three or more persons in or outside Canada; b.

Has as one of its main purposes or main activities the facilitation or commission of one or more serious offences [meaning anindictable offence under the Criminal Code or other federal legislation for which the maximum punishment is imprisonment for fiveyears or more, or another offence that is prescribed by regulation] that, if committed, would likely result in the direct or indirect receiptof a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group [but does not include agroup of persons that form randomly for immediate commission of a single offence]. 2.

Proof beyond a reasonable doubt of the defendants’ commission of the predicate offence(s) [actus reus and mens rea] and thatthey each knowingly were involved with a criminal organization; and 3. Proof beyond a reasonable doubt of the required linkage with the criminal organization, whether pursuant to

Section 467.12, itbe as members (e.g. – R. v. Lindsay and Bonner, (ON SC), [2005] OJ No. 2870 (SC) ) or non-members of a criminalorganization - “commits an indictable offence… for the benefit of, at the direction of, or in association with, a criminal organization”(e.g. – R. v. Venneri, 2012 SCC 33); or

Section 467.11- “for the purpose of enhancing the ability of a criminal organization to facilitateor commit an indictable offence… knowingly, by act or omission, participates in or contributes to any activity of the criminalorganization”. [18] The Crown alleges in the case at bar that each of the defendants is a member of the Bacchus Motorcycle Club, a criminalorganization, and that they committed the predicate offences herein (Sections 264(2), 264.1, 346, and 423 Criminal Code), “for thebenefit of, at the direction of, or in association with” the Bacchus Motorcycle Club. [19] As Justice Fish commented for the unanimous court in R. v.

Venneri: 36 Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-mindedfelons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labour accordingly; fosteringtrust and loyalty within the organization; sharing customers, financial resources, and insider knowledge; and, in some circumstances,developing a reputation for violence.

A group that operates with even a minimal degree of organization over a period of time is bound tocapitalize on these advantages and acquire a level of sophistication and expertise that poses an enhanced threat to the surroundingcommunity. … 40 It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more personsthat pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to thisdetermination must be considered in applying the definition of "criminal organization" adopted by Parliament.

Groups of individuals thatoperate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime. 41 Courts must not limit the scope of the provision to the stereotypical model of organized crime -- that is, to the highly sophisticated,hierarchical and monopolistic model.

Some criminal entities that do not fit the conventional paradigm of organized crime maynonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme. … 53 The phrase "in association with" should be interpreted in accordance with its plain meaning and statutory context. It is accompaniedhere by the terms "at the direction of" and "for the benefit of". These phrases are not mutually exclusive. On the contrary, they have ashared purpose and will often overlap in their application. Their common objective is to suppress organized crime.

To this end, theyespecially target offences that are connected to the activities of criminal organizations and advance their interests. 54 Considered in this light, the phrase "in association with" captures offences that advance, at least to some degree, theinterests of a criminal organization -- even if they are neither directed by the organization nor committed primarily for its benefit. As noted by Miles Hastie: The phrase "in association with" should capture, like its siblings, an interest of the criminal organization in the predicate offence.

Theaccused need not carry out the predicate offence exclusively for the criminal organization: the accused may (and, as an organizationmember, will usually) entertain other selfish motives. But offences committed for wholly selfish purposes should not generate liability.On some level, the offence must only capture actions with and for the criminal organization. [Emphasis added; emphasis in originaldeleted; footnote omitted.] ("The Separate Offence of Committing a Crime 'In Association with' a Criminal Organization: Gang Symbols and Signs of ConstitutionalProblems" (2010), 14 Can. Crim. L.

Rev. 79, at p. 91) 55 The phrase "in association with" requires a connection between the predicate offence and the organization, as opposed tosimply an association between the accused and the organization: see R. v. Drecic, 2011 ONCA 118,276 O.A.C. 198, at para. 3. In R.v. Lindsay (2004), (ON SC), 70 O.R. (3d) 131 (S.C.J.), aff'd 2009 ONCA 532, 245 C.C.C. (3d) 301, the trial judge,

correctly in my view, interpreted the phrase "in association with" as follows: The phrase "in association with" is not impermissibly vague. The phrase is intended to apply to those persons who commit criminaloffences in linkage with a criminal organization, even though they are not formal members of the group. The Oxford EnglishDictionary (10th ed.) defines the phrase "associate oneself with" to mean, "allow oneself to be connected with or seen to be supportiveof".

The phrase "in association with" requires that the accused commit a criminal offence in connection with the criminal organization.Whether the particular connection is sufficient to satisfy the "in association with" requirement will be for a court to determine, based onthe facts of the case. [Emphasis added; para. 59.] 56 As mentioned earlier, an offender may commit an offence "in association with" a criminal organization of which theoffender is not a member.

Membership in an organization, however, remains a relevant factor in determining whether therequired nexus between the offence and the organization has been made out (see Drecic, at para. 3). 57 The Crown must also demonstrate that an accused knowingly dealt with a criminal organization. The stigma associated with theoffence requires that the accused have a subjective mens rea with respect to his or her association with the organization (see Lindsay,(2004 S.C.J.) at para. 64). [My emphasis added] [20] In R. v.

Drecic, 2011 ONCA 118, Moldaver J.A. (as he then was) stated for the court: 3 In our view, this appeal is largely fact driven. It does not raise any novel or unsettled points of law.

In particular, the existingjurisprudence from this and other courts establishes that the "in association with" requirement of s. 467.12(1) of the Code will bemade out so long as there is a connection or link between the underlying offence and the criminal organization in question.Contrary to the position put forward by the appellant, the criminal organization does not have to be "directly involved" in the underlyingoffence or play a "direct and integral role in it". The appellant fairly concedes that the following observation made by JusticeNordheimer in R. v. Bodenstein (unreported July 13, 2010 (Ont.

S.C.)) is an accurate statement of the law: In other words, if membership in the organization is part of the reason why the offence is undertaken or if membership in theorganization assists in the commission of the offence, then it can be fairly concluded the offence was undertaken in associationwith the organization. [My emphasis added] Why the evidence of S.H. is admissible [21] For evidence to be received by a court, it must be relevant, material, and admissible. [22] Proposed evidence is considered sufficiently relevant if, as a matter of logic and human experience, it tends to increase ordiminish the probability of a fact in issue – R. v.

Arp, (SCC), [1998] 3 S.C.R. 339, at para 38. [23] Evidence is material if it is directed at a matter in issue in the case. Materiality, a legal concept, is a measure of the relationshipbetween the proposition the evidence is offered to prove, and the issues in the case. [24] Admissibility is also a legal concept. Evidence that is relevant and material will be admissible, unless there is a legal rule[common law or statutory] that requires its exclusion – R. v.

FFB, (SCC), [1993] 1 S.C.R. 697, at para 23. [25] The Crown and defence herein agree that the evidence of S.H. is properly characterized as evidence of extrinsic misconduct. Use of the term “evidence of extrinsic misconduct” is understood as a reference to the conduct of an accused person. Generally, itencompasses alleged discreditable conduct by an accused which is arguably not admissible because it is evidence of similar acts, badcharacter evidence, or other evidence that carries with it the dangers described by Justice Cronk in R. v.

BD, 2016 ONCA 673: Improper Admission of Extrinsic Misconduct Evidence 31 The dangers associated with the admission in a criminal trial of evidence of extrinsic misconduct by the accused are well-established. As this court indicated in R. v.

J.A.T., 2012 ONCA 177, 288 C.C.C. (3d) 1, at para. 52: The inherent prejudicial effect of evidence of extrinsic misconduct can infect a jury's deliberative process in three main ways: i. the jury may assume, from its acceptance of the evidence of extrinsic misconduct, that an accused is a "bad person", thus likely to beguilty of the offences charged; ii. the jury may tend to punish the accused for the extrinsic misconduct by finding him or her guilty of the offences charged; and iii. the jury may become confused by the evidence of extrinsic misconduct, their attention deflected from the main purpose of the trial,the offences charged, and substitute their conclusion on the extrinsic misconduct for their verdict on the indictment they are trying.[Citations omitted.] 32 However, as J.A.T. also explains, at para. 51, not all evidence of an accused's extrinsic misconduct is inadmissible:

Evidence of an accused's extrinsic misconduct that shows only that she or he is the type of person likely to have committed an offencewith which she or he is charged is inadmissible ...

On the other hand, evidence that tends to show from extrinsic misconduct that anaccused is a person of bad character, but that is also relevant and material, falls outside the general exclusionary rule, providedits probative value exceeds its prejudicial effect. [Citations omitted.] 33 Thus, for example, evidence of extrinsic misconduct may be admitted as part of the narrative to provide context for the events atissue or to establish motive or animus, or to explain why alleged abuse occurred and went unreported due to a pattern of violent controlby the accused over others: J.A.T., at para. 54.

In all instances, however, the evidence in question "must be relevant to somematerial issue, other than propensity, and be more probative of that issue than prejudicial through impermissible propensityreasoning": J.A.T., at para. 54. 34 In R. v. L.B. (1997), (ON CA), 35 O.R. (3d) 35, at p. 43 (C.A.), leave to appeal refused, [1997] S.C.C.A. No.524, this court set out a four-part test for the admissibility of extrinsic misconduct evidence regarding an accused:

(1) Is the conduct, which forms the subject-matter of the proposed evidence, that of the accused?

(2) If so, is the proposed evidence relevant and material?

(3) If relevant and material, is the proposed evidence discreditable to the accused?

(4) If discreditable, does its probative value outweigh its prejudicial effect? [26] It is important to emphasize that, as Justice Doherty pointed out in R. v. WB (ON CA), [2000] O.J. No. 2184(CA): 96 Counsel's argument regarding the trial judge's failure to caution the jury against resort to propensity reasoning assumes thatpropensity reasoning could have no proper role in the jury's analysis of the evidence. I do not accept that assumption.

While a jury mustnever convict based on a finding that an accused engaged in misconduct other than that alleged, and must never convict based on anassessment that the accused is a bad person, there will be cases in which a more focussed form of propensity reasoning is entirelyappropriate. I think this was such a case. … 102 The criminal law's resistance to propensity reasoning is not, however, absolute. There will be situations in which theprobative force of propensity reasoning is so strong that it overcomes the potential prejudice and cannot be ignored if the truthof the allegation is to be determined.

The probative force of propensity reasoning reaches that level where the evidence, ifaccepted, suggests a strong disposition to do the very act alleged in the indictment. For example, if an accused is charged withassaulting his wife, evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible.Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general dispositionto act violently and commit assaults. The evidence suggests a strong disposition to do the very act in issue - assault his wife.

In suchcases, the jury is permitted to reason, assuming it accepts the evidence of the prior assaults, that the accused was disposed to actviolently towards his wife and that he had that disposition on the occasion in issue. The existence of the disposition is a piece ofcircumstantial evidence that may be considered in deciding whether the accused committed the alleged assault. 103 The admissibility of prior assaults as evidence that the accused assaulted the same person on the occasion in issue is wellestablished in the authorities: e.g. R. v. F. (D.S.) (1999), (ON CA), 132 C.C.C. (3d) 97 (Ont.

C.A.); McCormick onEvidence, supra, 665-66. While the authorities refer to the evidence as relevant to demonstrate motive or animus, these labels merelydescribe the disposition that is established by the discreditable conduct evidence.

They do not detract from the fact that the evidencederives its probative force through propensity reasoning…. … 105 In describing how propensity reasoning should be addressed in deciding whether the evidence was sufficiently probative tomerit its reception, Charron J.A. said, at pp. 504-505: Therefore, in assessing this aspect of the probative value of the evidence, it is important to circumscribe the meaning of disposition' orpropensity', much in the same way as the notion of prejudice described above.

The forbidden line of reasoning is that which leads to theconclusion that the accused committed the offence with which he is charged based, not on the strength of the evidence which has aconnection to the issues in the case, but rather, on the strength of the evidence that he is "a bad person" who would have a tendency tocommit this offence. Admittedly, the distinction may not always be an easy one to make.

But, given the potentially high prejudice inherent in evidence of thiskind, this requirement is meant to ensure that only evidence with a real connection to the case will be admitted as opposed to evidencethat merely adds to the risk of a wrongful conviction. ... 106 My colleague has captured the crucial issue to be addressed when determining whether discreditable conduct evidenceshould be admitted on the basis of propensity reasoning. Evidence which tends to show no more than a general disposition must bedistinguished from evidence which demonstrates a disposition to do the very thing alleged in the indictment.

If the evidence of thediscreditable conduct is such that it shows a strong disposition to do the very act alleged in the very circumstances alleged, then the evidence has a "real connection" to the very issue to be decided - did the accused commit the act:8 R. Delisle, "Similar Facts:Here We Go Again" (1999), 20 C.R. (5th) 38 at 41. The probative potential of propensity reasoning will be highest where thediscreditable conduct is temporally connected to the allegations in the indictment and involves repeated acts of the same kind

with the same complainant as those alleged in the indictment. [ 27 ] I will also reproduce here footnote no. 8 arising in para. 106: 8 Evidence of discreditable conduct which is sufficiently specific to permit the inference that the accused committed the act in question is akin to evidence of habit rather than evidence of character or disposition. As the authors of McCormick on Evidence, supra, at 686-87, indicate, "Character is a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance or peacefulness.

Habit, in the present context, is more specific. It denotes one's regular response to a repeated situation. If we speak of a character for care, we think of the person's tendency to act prudently in all the varying situations of life - in business, at home, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of responding to a particular kind of situation with a specific type of conduct." The authors note that evidence of habit is generally receivable.

It should be noted, however, that some American authorities would not extend the concept of habit to prior sexual conduct but would limit it to "semi-automatic acts”. [ 28 ] Notably, in the case at bar, the Crown wishes to rely upon not only the extrinsic misconduct evidence through the testimony of S.H., but also other extrinsic misconduct evidence (in part from Sgt. Stephen MacQueen), including the criminal records of the defendants, all of which evidence proposed Crown expert S/Sgt.

Leonard Isnor will want to rely upon in giving his opinion that the Bacchus Motorcycle Club is a “criminal organization”. [ 29 ] In its April 21, 2016 letter to the court the Crown noted: … The Crown will also be calling evidence of other extrinsic acts in relation to this matter through witnesses… [and] the criminal records of Bacchus members. From our discussion at the earlier pretrial conference, it is my understanding that the admissibility of this evidence is not an issue, although the defence will be challenging the evidence through cross-examination.

Accordingly, I have restricted my comments in the brief to the evidence of SH, although the comments to be made in respect of this evidence would be similar to that of Mr. H. [ 30 ] That concession by the defendants herein is appropriate. As Justice Mackenzie noted in R. v.

Terezakis , 2007 BCCA 384 , at para. 46 [3] : Criminal organization offences make evidence of general propensity and bad character probative that would otherwise be excluded as prejudicial. [ 31 ] Moreover, to reiterate, evidence of extrinsic misconduct [4] is permissible if its purpose goes beyond propensity or disposition to commit crime, which is prohibited because it may be used as “circumstantial proof of conduct; i.e. to allow an inference from the “similar facts” that the accused has the propensity or disposition to do the type of acts charged and is therefore guilty of the offence. [ 32 ] Therefore, it is appropriate at this juncture to focus only on the admissibility of the proposed testimony of S.H. [ 33 ] Succintly put, the Crown alleges that during January – September 2012, Mr.

James’s conduct in relation to both R.M. and S.H. reveals that he intervened in the lives of both these recreational motorcycle enthusiasts to ensure that they did not wear or display a “three patch” combination regarding their real or made-up “motorcycle clubs”. The Crown will argue that his conduct in relation to RM was criminal.

They say that his conduct in relation to SH is relevant, material and should be admissible in this trial involving RM, because it provides direct or indirect proof of “the essential elements of establishing that the Bacchus Motorcycle Club is a criminal organization as defined in s. 467.1 of the Criminal Code , and that the offences in question were committed for the benefit of, at the direction of, or in association with that criminal organization.” [ 34 ] I will presume that Mr.

James will be identified as the person who communicated through Facebook posts to S.H., and that those Facebook communications are admissible evidence at trial. [5] [ 35 ] Those communications included Mr. James stating: The MC on your patch indicates that you have a clubhouse. Let me know the clubhouse address, otherwise I will pop in your home/work address whenever I am close later. [SH –“… I do not have a clubhouse or a club.

Is this some kind of joke?”] It is not a joking matter… [SH – regarding his Facebook profile picture showing the back of his motorcycle jacket with the three patch combination thereon – “it is me, standing on my sundeck, looking back over my field. Why? I’m afraid I do not understand where you’re going with this. Did I somehow break some unwritten code of conduct here? ”] This is exactly what you have done and a lot of people are, would, will be extremely insulted by that photo/vest. Patches like you’re carelessly wearing, three-piece MC, are earned through a lot of time, blood and sweat.

Those that have put in the effort for the right to wear such a patch, three-piece MC, will not react favourably to such a slap in the face… I would assume that you did not have any bad intentions, merely ignorance of patch protocols. Now that you have been informed otherwise, I suggest that you remove the bottom rocker, Nova Scotia, and MC patches, as they indicate a lot more than you are aware. Please also remove

the photo from your Facebook, as it can only prove to cause bad feelings. Some may feel it is

an act of provocation. [SH takes down his Facebook profile picture and removes the three patch combination from his motorcycle jacket – and informs Mr. James] Thank you for taking down the photo. No need to block me. I will not be harassing you. I just wanted to educate you to the patch protocol , as some can be very extreme when dealing with such infractions, and there is no need for incidents if no disrespect was intended.

Please just send a short reply to confirm that the requested alterations to the vest, removal of Nova Scotia and MC patches, have been carried out and your assurance that nobody will see it again as it previously was, and there will be no need for me to contact you in future… ” [ 36 ] In the trial herein, the evidence is expected to show: that all three defendants are “full patch” members of the Bacchus Motorcycle Club- namely that they wear a three piece MC patch. Mr.

James told R.M. he could not have a three piece MC patch because it would be seen as a provocation and sign of disrespect by existing three patch motorcycle clubs in Nova Scotia. In 2012, the Bacchus Motorcycle Club was the only three piece patch MC in Nova Scotia, carrying a bottom rocker reading “Nova Scotia”. [ 37 ] When R.M. and his friends came back from Montréal after receiving, and posting photos of themselves wearing, a one patch MC from “The Brotherhood” group of recreational motorcycle enthusiasts, Mr.

James and other members of the Bacchus Motorcycle Club were already looking for R.M. and his fellow club members. Mr. James, dressed in his clearly visible Bacchus Motorcycle Club regalia, spoke in person with RM at his work office the next day. Mr. James was very upset. He said in part: “what the fuck were you thinking? Do you think you could get away with something like that? I fucking told you that you were not to have a fucking Montréal brotherhood patch down here, and you went ahead and fucking did it.

We were driving around the whole weekend looking for you because of that picture that went on Facebook, you guys getting patched over in Montréal… Because those [patches] were coming off your back… You fucking disrespected us”. [ 38 ] On September 14, 2012, R.M. and friends attended a motorcycle enthusiasts’ charity event. Many other people were present. RM noticed also present were six members of the Bacchus Motorcycle Club wearing their regalia. Mr. Howe and Pearce were among the six and wore the three-piece MC patch. Standing in close proximity to R.M. and his wife were Mssrs. Pearce and Howe. Mr.

Howe angrily said to R.M.: I’m telling you right fucking now, get on your fucking bike and get the fuck out of here. You’re not fucking welcome here. The only reason why we don’t kick the living shit out of you right fucking now is because there’s too many fucking people around. You’re not welcome at any fucking biking event in Nova Scotia… What makes you think you can fucking disrespect us?… We don’t want to see you anywheres at any events in Nova Scotia.

You are fucking done. [ 39 ] I understand that, if qualified to give expert opinion evidence, S/Sgt Isnor will likely testify that: criminal organizations such as motorcycle gangs (including the Bacchus Motorcycle Club) demonstrate their authority over a particular territory through the presence of clubhouses, and their wearing/display/use of a three-piece MC patch; specifically the “bottom rocker” or patch, sets out the territory they claim as their own within the criminal subculture; any encroachment, perceived or real, by other parties is seen as a threat to the authority of such motorcycle gangs to control the lucrative criminal conduct within that territory; only full members in such motorcycle gangs are entitled to wear the club regalia, and specifically a three piece MC patch. [ 40 ] Arguably, Mr.

James’s conduct in relation to S.H. is so similar to the circumstances of his conduct in relation to R.M., that it allows an inference regarding his habit or regular practice of responding to persons who would wear a three-piece MC patch, who are not approved of by him (and the Bacchus Motorcycle Club). Not only is the evidence of S.H. temporally connected, but it also shows a strong disposition to do the very act alleged against R.M. The evidence tends to suggest that Mr. James has an unusual interest in ensuring that persons not approved of by him, do not wear three-piece MC patches in Nova Scotia.

This is also confirmed by the Facebook profile photo of S.H. found at Mr. James’s residence, on which appear the words: “S.H….(asshole)…. He has been warned and says he doesn’t have to ask anybody anything”. [ 41 ] In conversation with S.H., Mr. James stated that wearing three-piece MC patches in Nova Scotia, would be “extremely” insulting to persons who have “earned, through a lot of time, blood and sweat… [those that have put in the effort] for the right to wear such a patch” and that those persons “will not react favourably to such a slap in the face”. Mr.

James refers to “patch protocol” and that S.H. had broken “some unwritten code of conduct”. [ 42 ] In conversation with R.M., Mr. James told him that he could not wear a three-piece MC patch because it would be seen as a provocation and sign of disrespect by existing three patch motorcycle clubs in Nova Scotia. The day after R.M. came back from Montréal, intending to wear a one patch MC (“The Brotherhood”), Mr. James angrily berated him because “do you think you could get away with something like that?

I fucking told you that you were not to have a fucking Montréal Brotherhood patch down here, and you went ahead and fucking did it…those patches were coming off your back…you fucking disrespected us.” [ 43 ] On September 14, 2012, Mr. Howe angrily said to R.M.: “the only reason we don’t kick the living shit out of you right fucking now because there’s too many fucking people around… What makes you think you can fucking disrespect us?... We don’t want to see you anywheres at any events in Nova Scotia. You are fucking done.” [ 44 ] The conduct of Mr.

James in relation to S.H. is relevant and material to whether the Bacchus Motorcycle Club is a criminal organization, and the defendants charged herein are not only members thereof, but whether they were acting in a criminal manner “for the benefit of, at the direction of, or in association with that criminal organization”. [ 45 ] The proposed evidence regarding S.H. is fairly characterized as extrinsic evidence of misconduct or discreditable conduct by

Mr. James. [ 46 ] I conclude that the probative value of the proposed evidence outweighs any prejudicial effect on the fair trial rights of Mr. James, and that this is also true in relation to Mssrs. Howe and Pearce. [ 47 ] The court is aware that the proposed evidence cannot specifically be used to conclude that: Mr. James is a person of bad character and therefore likely to be guilty of the offences charged; or that Mr.

James, therefore, deserves to be found guilty of the offences charged; and it must ensure that it does not become distracted or confused by the extrinsic evidence in rendering a just verdict on the charges before the court. Conclusion [ 48 ] I conclude, provisionally, that the evidence of S.H. is admissible at the trial of the defendants. Rosinski, J. APPENDIX A The legislative provisions over time Current to September 24, 2016 R.S.C. 1985, c. C-46, s. 467.1 [eff since June 19, 2014](Current Version) Criminal Code R.S.C. 1985, c. C-46

PART XIII ATTEMPTS - CONSPIRACIES - ACCESSORIES

SECTION 467.1

Definitions 467.1

(1) The following

definitions apply in this Act. "criminal organization" "criminal organization" means a group, however organized, that (

a) is composed of three or more persons in or outside Canada; and (

b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. "serious offence" "serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation. Facilitation

(2) For the purposes of this section,

section 467.11 and 467.111, facilitation of an offence does not require knowledge of a particular

offence the commission of which is facilitated, or that an offence actually be committed. Commission of offence

(3) In this

section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it. Regulations

(4) The Governor in Council may make regulations prescribing offences that are included in the definition "serious offence" in subsection (1). ** Editor's Table ** Provision Changed by In force Authority 467.1 1997 c23 s11 1997 May 2 SI/97-61 467.1 2001 c32 s27 2002 Jan 7 SI/2002-17 467.1 2014 c17 s8 2014 Jun 19 R.A./S.R. ***** S.C. 1997, c. 23, s. 11; S.C. 2001, c. 32, s. 27; S.C. 2014, c. 17, s. 8.

Current to September 24, 2016 R.S.C. 1985, c. C-46, s. 467.1 [eff January 7, 2002 to June 18, 2014](Past Version) Criminal Code R.S.C. 1985, c. C-46

PART XIII ATTEMPTS - CONSPIRACIES - ACCESSORIES

SECTION 467.1

Definitions 467.1

(1) The following

definitions apply in this Act. "criminal organization" "criminal organization" means a group, however organized, that (

a) is composed of three or more persons in or outside Canada; and (

b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence. "serious offence" "serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation. Facilitation

(2) For the purposes of this

section and

section 467.11, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed. Commission of offence

(3) In this

section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it. Regulations

(4) The Governor in Council may make regulations prescribing offences that are included in the definition "serious offence" in subsection (1). ** Editor's Table ** Provision Changed by In force Authority 467.1 1997 c23 s11 1997 May 2 SI/97-61 467.1 2001 c32 s27 2002 Jan 7 SI/2002-17 ***** S.C. 1997, c. 23, s. 11; S.C. 2001, c. 32, s. 27. Current to September 24, 2016 R.S.C. 1985, c. C-46, s. 467.1 [eff May 2, 1997 to January 6, 2002](Past Version) Criminal Code R.S.C. 1985, c. C-46

PART XIII ATTEMPTS - CONSPIRACIES - ACCESSORIES

SECTION 467.1 Participation in criminal organization 467.1

(1) Every one who (

a) participates in or substantially contributes to the activities of a criminal organization knowing that any or all of the members of the organization engage in or have, within the preceding five years, engaged in the commission of a series of indictable offences under this or any other Act of Parliament for each of which the maximum punishment is imprisonment for five years or more, and (

b) is a party to the commission of an indictable offence for the benefit of, at the direction of or in association with the criminal organization for which the maximum punishment is imprisonment for five years or more is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. Sentences to be served consecutively

(2) A sentence imposed on a person for an offence under subsection (1) shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under subsection (1). ** Editor's Table ** Provision Changed by In force Authority 467.1 1997 c23 s11 1997 May 2 SI/97-61 ***** S.C. 1997, c. 23, s. 11.

Current to September 24, 2016 R.S.C. 1985, c. C-46, s. 467.11 [eff since January 7, 2002](Current Version) Criminal Code R.S.C. 1985, c. C-46

PART XIII ATTEMPTS - CONSPIRACIES - ACCESSORIES

SECTION 467.11 Participation in activities of criminal organization 467.11

(1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that (

a) the criminal organization actually facilitated or committed an indictable offence; (

b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence; (

c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or (

d) the accused knew the identity of any of the persons who constitute the criminal organization. Factors

(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused (

a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization; (

b) frequently associates with any of the persons who constitute the criminal organization; (

c) receives any benefit from the criminal organization; or (

d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization. ** Editor's Table ** Provision Changed by In force Authority 467.11 2001 c32 s27 2002 Jan 7 SI/2002-17 ***** S.C. 2001, c. 32, s. 27. Current to September 24, 2016 R.S.C. 1985, c. C-46, s. 467.12 [eff since January 7, 2002](Current Version) Criminal Code R.S.C. 1985, c. C-46

PART XIII ATTEMPTS - CONSPIRACIES - ACCESSORIES

SECTION 467.12

Commission of offence for criminal organization 467.12

(1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years. Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization. ** Editor's Table ** Provision Changed by In force Authority 467.12 2001 c32 s27 2002 Jan 7 SI/2002-17 ***** S.C. 2001, c. 32, s. 27. Current to September 24, 2016 R.S.C. 1985, c. C-46, s. 467.13 [eff since January 7, 2002](Current Version) Criminal Code R.S.C. 1985, c. C-46

PART XIII ATTEMPTS - CONSPIRACIES - ACCESSORIES

SECTION 467.13 Instructing commission of offence for criminal organization 467.13

(1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life. Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that (

a) an offence other than the offence under subsection (1) was actually committed; (

b) the accused instructed a particular person to commit an offence; or (

c) the accused knew the identity of all of the persons who constitute the criminal organization. ** Editor's Table ** Provision Changed by In force Authority 467.13 2001 c32 s27 2002 Jan 7 SI/2002-17 ***** S.C. 2001, c. 32, s. 27.

Current to September 24, 2016 R.S.C. 1985, c. C-46, s. 467.14 [eff since June 19, 2014](Current Version) Criminal Code R.S.C. 1985, c. C-46

PART XIII ATTEMPTS - CONSPIRACIES - ACCESSORIES

SECTION 467.14 Sentences to be served consecutively 467.14 A sentence imposed on a person for an offence under

section 467.11, 467.111, 467.12 or 467.13 shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections. ** Editor's Table ** Provision Changed by In force Authority 467.14 2001 c32 s27 2002 Jan 7 SI/2002-17 467.14 2014 c17 s10 2014 Jun 19 R.A. ***** S.C. 2001, c. 32, s. 27; S.C. 2014, c. 17, s. 10. Current to September 24, 2016 R.S.C. 1985, c. C-46, s. 467.14 [eff January 7, 2002 to June 18, 2014](Past Version) Criminal Code R.S.C. 1985, c. C-46

PART XIII ATTEMPTS - CONSPIRACIES - ACCESSORIES

SECTION 467.14 Sentences to be served consecutively 467.14 A sentence imposed on a person for an offence under

section 467.11, 467.12 or 467.13 shall be served consecutively to any other punishment imposed on the person for an offence arising out of the same event or series of events and to any other sentence to which the person is subject at the time the sentence is imposed on the person for an offence under any of those sections. ** Editor's Table ** Provision Changed by In force Authority 467.14 2001 c32 s27 2002 Jan 7 SI/2002-17 ***** S.C. 2001, c. 32, s. 27.