It is not a crime in and of itself to be a member of a gang or criminal organization.
However, if proven by the Crown, participation in a criminal organization has implications for the accused in relation to the commission of some other criminal offences.
For the prosecution of certain criminal offences, it is required that the Crown prove that there is a criminal organization and that the accused is a member.
A criminal organization is defined in section 467.1(1) of the Criminal Code:
467.1 (1) criminal organization means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.
It does not include a group of persons that forms randomly for the immediate commission of a single offence. (organisation criminelle)
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. (infraction grave)
(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.
Marginal note: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.
(4) The Governor in Council may make regulations prescribing offences that are included in the definition “serious offence” in subsection (1).
For the prosecution of certain offences the Crown must establish that the accused is in a criminal organization by presenting evidence. It must be established on a case-by-case basis.
Factors to consider whether the group is a criminal organization include:
rules between the men,
defined roles and structure,
communication between the participants,
actual or pending material benefit to the parties,
an organizational structure that promotes the commission of offences.
While the courts acknowledge that criminal organizations have no incentive to be formally organized, it is necessary that the Crown demonstrate "some form of structure and degree of continuity are required".
The following criminal offences require there is a criminal organization:
Enhancing a criminal organization section 467.11
Committing for the benefit of a criminal organization section 467.12
Instruct the commission of an offence for a criminal organization section 467.13
Others are modified by the existence of a criminal organization:
Conspiracy section 465
Counselling section 22)
Accessory after the fact section 23
Possessing explosives for a criminal organization section 82(2)
Intimidating the justice system and journalists section 423.1
If you have been charged with a crime in relation to being a member of a criminal organization, or any other criminal offence contact Kostman and Pyzer, Barristers today for advice!