Week 13: Organized Crime Control In Practice: Criminal Law And Enforcement Agencies in Canada

Chapter Outline Introduction & overview OC laws & legislation OC enforcement in Canada: Responsibilities, jurisdictions, & agencies The theory & practice of OC enforcement: A critical analysis Future OC enforcement policy options Conclusion to part IV

Learning Objectives After reading this chapter, you should have an understanding of: The role of criminal laws in combatting OC How the legal concept of conspiracy is central to OC laws Laws & legislation in Canada relevant to OC control Selective laws that have been adopted in the U.S. to combat OC How Canadian criminal laws compare to those of the US The structure of OC enforcement in Canada, including responsibilities, jurisdictions, & agencies involved

Learning Objectives (cont.) Critiques of the traditional enforcement model Factors that make the goal of containing—let alone eradicating—OC so difficult The constraints placed on traditional enforcement strategies in free, democratic, common-law countries Critiques & weaknesses of OC enforcement in Canada Future OC enforcement policy options Pros & cons of legalization of recreational drugs

Laws and Legislation Conspiracy Laws Codified in both Canadian & American criminal law Section 465 of the Canadian Criminal Code (CCC) Definition: an agreement between two or more persons to commit a criminal act Conspiracy laws provide valuable tools for prosecuting OC offenders: targets multiple individuals targets upper echelons of OC groups

Laws and Legislation: United States Racketeer Influenced Corrupt Organizations (RICO) Act: Makes it unlawful to acquire, operate or receive income from an enterprise through a “pattern” of racketeering activity Pattern: at least two criminal offences in a 10-year period Conviction under RICO results in penalties on top of those for the predicate offence (sentences served consecutively) Up to 20 years & $250,000 fine Allows the government or a citizen to file a civil suit requesting a court to forfeit assets, order sanctions, or provide injunctive relief against anyone involved in a "pattern of racketeering” RICO criticized for being used too indiscriminately (against those not involved in OC)

Laws and Legislation: Canada Some Relevant CCC offences: Travel document offences (counterfeiting, fraudulent use of passports – Sections 57/58) Weapons trafficking (Sections 99 to 101) Corruption of government officials (Sections 118 to 125) Illegal gaming & betting (Sections 201 to 209) Prostitution-related offences (Sections 210 to 213) Extortion (Section 346) Criminal interest rate (Section 347) Forgery (Sections 366 to 378) Fraud (Sections 380 to 396) Product piracy (Sections 406 to 414) Counterfeit money (Section 448 to 462) Possession of POC /Money laundering (Sections 462.31 to 462.5)

Laws and Legislation: Canada CCC Section 467.1 (Participation in a Criminal Organization) Creates definition of “criminal organization” in the CCC Creates an indictable offence for: participating in activities in a criminal organization recruitment of members by a criminal organization commission of an offence for a criminal organization Instructing the commission of offence for a criminal organization Conviction for any of the above results in sentence(s) in addition to sentence for predicate offence (served consecutively) Sentences for S. 467 offences as much as 14 years

Laws and Legislation: Canada Controlled Drugs and Substances Act Lays out offences for the possession, use, manufacture, importation, & trafficking of prohibited & controlled drugs Proscribes certain powers to a peace officer to carry out duties to enforce the statute such as search, seizure, & detention. Includes proceeds of crime & money laundering offences Allows police to seize/restrain cash & other assets deemed to be the proceeds of drug offences Allows police & agents to commit criminal acts during undercover operations (e.g., selling, buying, transporting drugs)

Laws and Legislation: Canada Immigration and Refugee Protection Act Addresses illegal immigration: human smuggling & trafficking & illegal use of official travel documents Creates a new offence for human smuggling & trafficking, Penalties: fines of up to $1 million & life in prison Creates new offence for the possession & laundering of proceeds from immigration offences Bars access to Canada to offenders, security risks, organizers of criminal operations, or violators of human rights

Laws and Legislation: Canada Income Tax Act – Offenders penalized for not paying taxes on (illegal) revenue Customs Act – covers the smuggling of contraband & drugs into Canada Competition Act includes offences related to deceptive telemarketing allows the Crown to seize & forfeit any proceeds from the commission of telemarketing offences  

Laws and Legislation: Canada Proceeds of Crime (Money Laundering) & Terrorist Financing Act Mandates financial institutions, casinos, currency exchange businesses, & others financial intermediaries to report: 1) large volume cash transactions or 2) any suspicious transaction (regardless of amount) Cash above $10,000 crossing the Canadian border must be reported to Canada Customs Establishes a Financial Intelligence Unit - Financial Transactions & Reports Analysis Centre of Canada (FINTRAC) - to receive, analyze, and disseminate reported information

Laws and Legislation: Canada Witness Protection Program Act - Establishes national program to protect witness Extradition Act – Provides legal framework to deport individual to face charges in another country Mutual Legal Assistance in Criminal Matters Act – Empowers Canadian courts to issue orders to police to gather evidence requested by another country including search warrants, to locate a person, & to enforce orders of seizure & confiscation  

Canadian Agencies: RCMP De facto lead agency in investigating OC in Canada Border Enforcement - Enforces customs & immigration laws within Canada & along the unofficial border entry points Commercial Crime – Investigates fraud, theft, breach of trust, secret commissions, fed. government fraud, corruption, computer & telecommunications crimes, securities fraud, & counterfeiting. Drug Enforcement - Emphasis on large scale organized drug manufacturing, import, export, & trafficking

Canadian Agencies: RCMP (cont.) Immigration, Passport & Citizenship Enforcement – Investigates immigration & passport offences Financial Crime Enforcement – Investigates proceeds of crime & other financial crime offences Criminal Intelligence Directorate - Centralizes & coordinate the RCMP’s criminal intelligence function Technical Services - Provides technical & human resources for electronic & physical (including aerial) surveillance International Operations - Provides direction & assistance to Canadian law enforcement agencies to detect & prevent international offences that may affect Canada includes RCMP Liaison Officers posted in other countries

Canadian Agencies: CBSA Canada Border Services Agency Main OC enforcement: detect & interdict prohibited & restricted goods at official ports of entry Key enforcement functions: examinations risk assessments & targeting intelligence collection, analysis & dissemination security screenings (of individuals) Investigations CBSA does not have the powers to lay criminal charges any potential criminal cases are referred to the RCMP

Canadian Agencies: FINTRAC Financial Transactions & Reports Analysis Centre of Canada “Financial Intelligence Unit” Central repository for information about (potential) money laundering activities across Canada Receives & analyzes cash & suspicious transaction reports Creates & disseminates intelligence information to law enforcement agencies Monitors the compliance of private-sector financial intermediaries with transaction reporting laws & regulations

Canadian Agencies: CISC Criminal Intelligence Service Canada Made up of Canadian law enforcement agencies Mandate: facilitate exchange of criminal intelligence info Automated Criminal Intelligence Information System (ACIIS) includes data on OC groups & their activities National database & toll-free hotline for information on OMGs

Canadian Agencies Provincial Governments Most provincial enforcement agencies are part of inter-agency Combined Forces Special Enforcement Units OPP operates the Biker Enforcement Unit Some provinces operate their own provincial law enforcement agencies targeting OC & gangs: OC Agency of B.C. Alberta Law Enforcement Response Teams

The Theory and Practice of OC Enforcement: A Critical Analysis Society will never eradicate OC due to its inherent characteristics: the continuing nature & resilience of organized criminal conspiracies no shortage of emergent criminal groups highly attractive profit potential there will always be a demand for illegal goods & services

The Theory and Practice of OC Enforcement: A Critical Analysis Critiques of the Criminal Justice Enforcement Model Hampered by failed strategies (e.g., head-hunting or king pin) Career criminals not easily deterred Over-emphasis on supply reduction & not on demand reduction Fails to address root causes of problem (e.g., criminogenic risk factors or demand for illegal drugs) Enforcement is primarily reactive Insufficient emphasis on proactive, preventative approaches Inability to anticipate emerging trends & developments in organized & transnational crime

The Theory and Practice of OC Enforcement: A Critical Analysis Critiques of OC Enforcement in Canada Reluctance to recognize the existence of OC in Canada when it was proliferating Enforcement is fractionalized; lack of co-operation, coordination, & information-sharing among criminal justice agencies Inadequate laws & legislation Too much focus on illegal commodities, services & individual offenders, at the expense of criminal organizations Absence of a long-term, strategic national plan Insufficient resources RCMP members transferred to national security duties Limited # of Crown prosecutors has led to serious charges being stayed Insufficient use of regulatory, civil, & administrative sanctions

The Theory and Practice of OC Enforcement: A Critical Analysis Unavoidable Constraints that Limit the Effectiveness of OC Enforcement Constitutional constraints (Charter of Rights & Freedoms) Jurisdictional limitations Resource constraints

Future Policy Options Four broad options: Increase OC enforcement resources Expand the authority of OC law enforcement, (tougher, more intrusive laws) Shift resources toward more preventative approaches Decrease opportunities for OC and limit black markets (decriminalization & legalization)  

Prohibition vs. Legalization Arguments in favour of drug legalization: Decrease the size of illegal markets Would diminish OC control over manufacture & distribution of drugs (decrease in violence, corruption, etc.) Taxes from the sale of legal drugs could be applied toward more socially productive ventures (e.g., health care) Drug enforcement resources could be shifted to other areas of crime control (or to demand reduction & treatment) Better regulation of drugs & drug use, leading to decreased overdoses Slow the spread of infectious diseases  

Prohibition vs. Legalization Arguments Against Drug Legalization Immoral to legalize such destructive vices Will lead to an increase in drug use & abuse, especially among young people (due to wider availability) Increased use & addictions lead to more negative effects on society Does not guarantee that black markets will be eliminated Will not eradicate OC May force criminal organizations to engage in more predatory crimes to make up for lost income  

Conclusion to Part IV War against OC & drug trafficking has effectively been lost OC enforcement is couched in less ambitious terms: “control,” “harm reduction,” or “containment.” Yet even these more modest goals have not been achieved The fentanyl epidemic is a cogent example this Control is undermined by OC’s symbiotic relationship with society Governments help create OC & black markets through criminalization Black markets & OC are sustained by the consuming public  

Conclusion to Part IV Federal marijuana legalization policy should be assessed as to whether it achieves the objective of reducing black markets & OC involvement If successful, such policies should be considered for other illegal drugs Although this will not in itself eradicate OC There needs to be a rethinking of how to control OC Must entail a scientific approach that includes a better understanding of the causes, nature, scope, & impact of the problem in Canada Policies that do not work or create undue harm must be abandoned