Is It Illegal to Be in a Gang or Criminal Organisation in Canada?

It is not a crime in and of itself to simply be a member of a gang or criminal organisation. However, participating in the activities of a criminal organisation, recruiting members, committing offences on its behalf, or instructing others to commit crimes on its behalf are all serious criminal offences under the Criminal Code.

If proven by the Crown, involvement with a criminal organisation has significant implications for the accused in relation to the commission of other criminal offences, often resulting in enhanced penalties and more serious charges.

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What Is a Criminal Organisation Under Canadian Law?

Section 467.1(1) of the Criminal Code defines a criminal organisation as a group, however organised, that:

• Is composed of three or more persons in or outside Canada, AND
• 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

The definition specifically excludes a group of persons that forms randomly for the immediate commission of a single offence.

What Is a “Serious Offence”?

A serious offence means an indictable offence under the Criminal Code or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence prescribed by regulation.

What Does “Facilitation” Mean?

For the purposes of criminal organisation offences, facilitation of an offence does not require knowledge of a particular offence being facilitated, or that an offence actually be committed. This broad definition means that general assistance to a criminal organisation can be prosecuted even without proof of involvement in a specific crime.

How Does the Crown Prove a Criminal Organisation Exists?

In the prosecution of certain offences, the Crown must establish that the accused is a member of a criminal organisation by presenting evidence. This must be established on a case-by-case basis.

Factors Courts Consider

Courts consider various factors when determining whether a group constitutes a criminal organisation:

• Rules between the members
• Defined roles and structure
• Communication between the participants
• Actual or pending material benefit to the parties
• An organisational structure that promotes the commission of offences

While courts acknowledge that criminal organisations have no incentive to be formally organised, “some form of structure and degree of continuity are required.”

Evidence of Participation

In determining whether you have participated in or contributed to any activity of a criminal organisation, the court will consider factors such as whether you:

• Used a name, word, symbol, or other representation that identifies or is associated with the criminal organisation
• Frequently associated with persons who constitute the criminal organisation
• Received any benefit from the criminal organisation
• Repeatedly engaged in activities at the instruction of persons who constitute the criminal organisation

It is not necessary for the Crown to prove that the criminal organisation actually committed an indictable offence or that you enhanced the ability of the criminal organisation to commit an indictable offence. It also does not matter if you knew the identity of all persons in the criminal organisation.

What Are the Specific Criminal Organisation Offences?

The Criminal Code contains several offences specifically related to criminal organisations, each with different penalties.

Participation in a Criminal Organisation (Section 467.11)

Section 467.11 makes it a crime to participate in or contribute to any activity of a criminal organisation for the purpose of enhancing the ability of the criminal organisation to facilitate or commit an indictable offence.

Penalties:

• Hybrid offence (can be prosecuted as indictable or summary conviction)
• Maximum: 5 years imprisonment (indictable)
• Lesser penalties for summary conviction

Recruitment of Members (Section 467.111)

Section 467.111 makes it a crime to recruit, solicit, encourage, coerce, or invite a person to join a criminal organisation.

Penalties:

• Always an indictable offence
• If the recruited person is under 18: Maximum 5 years, minimum 6 months imprisonment
• If the recruited person is 18 or older: Maximum 5 years, no minimum

Commission of Offence for a Criminal Organisation (Section 467.12)

Section 467.12 makes it a crime to commit an indictable offence at the direction of, or in association with, a criminal organisation.

Penalties:

• Always an indictable offence
• Maximum: 14 years imprisonment

Instructing Commission of Offence (Section 467.13)

Section 467.13 makes it a crime for someone who is part of a criminal organisation to instruct, directly or indirectly, any person to commit an offence for the benefit of, at the direction of, or in association with the criminal organisation.

Penalties:

• Always an indictable offence
• Maximum: Life imprisonment

This is the most serious criminal organisation offence, reflecting the gravity of directing others to commit crimes on behalf of an organisation.

What Other Offences Are Affected by Criminal Organisation Involvement?

Several other Criminal Code offences are modified or enhanced when committed in connection with a criminal organisation:

Offences With Enhanced Penalties

• Conspiracy (Section 465): Penalties may be enhanced when the conspiracy involves a criminal organisation.
• Counselling (Section 22): Criminal liability for counselling offences may be affected
• Accessory After the Fact (Section 23): Consequences are more severe when helping members of criminal organisations.
• Possessing Explosives for a Criminal Organization (Section 82(2)): Creates a specific offence with enhanced penalties
• Intimidating the Justice System and Journalists (Section 423.1): Criminal organisation involvement is an aggravating factor

Sentencing Implications

Beyond specific offences, involvement with a criminal organisation can serve as an aggravating factor at sentencing for virtually any offence. Courts take a dim view of organised crime activity and will often impose harsher sentences when there is evidence of involvement in a criminal organisation.

What Types of Groups Are Considered Criminal Organisations?

Most international organised crime groups are active within Canada. Examples include:

• Outlaw motorcycle gangs
• Street gangs
• Drug trafficking networks
• Human trafficking rings
• Various domestic criminal groups

The key factors are not the type of group but whether it meets the legal definition: three or more people, with a main purpose of committing serious offences for material benefit, and having some form of structure and continuity.

Are Most Organised Crime Charges Indictable Offences?

Yes. While the charge of participating in a criminal organisation (Section 467.11) can be dealt with as either a summary offence or an indictable offence, the more serious charges are always indictable:

• Recruiting members (Section 467.111): Always indictable
• Committing an offence for the organisation (Section 467.12): Always indictable
• Instructing commission of offence (Section 467.13): Always indictable

The classification as indictable means these charges are treated as serious criminal matters, with the possibility of jury trials and more severe penalties.

What Defences Are Available for Organised Crime Charges?

Defences to criminal organisation charges depend on the specific facts of each case, but may include:

• Challenging whether the group meets the legal definition of a criminal organisation
• Disputing the accused’s knowledge of the organisation’s criminal purposes
• Questioning whether the accused’s activities constituted “participation” in the legal sense
• Challenging the evidence of association or benefit
• Charter arguments regarding search and seizure or other investigative methods

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Have You Been Charged With a Criminal Organisation Offence?

Criminal organisation charges are extremely serious, with penalties ranging from months in jail to life imprisonment. These cases are often complex, involving extensive police investigations, wiretap evidence, and multiple co-accused.

Pyzer Criminal Lawyers has over two decades of experience defending clients facing serious criminal charges throughout Toronto and the GTA. We understand the complexities of organised crime prosecutions and will work to protect your rights. Contact us at (416) 658-1818 for a free, confidential consultation to discuss your case.