ARCHIVED — Regulations Prescribing Certain Offences to be Serious Offences
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Vol. 144, No. 16 — August 4, 2010
SOR/2010-161 July 13, 2010
P.C. 2010-932 July 13, 2010
Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 467.1(4) (see footnote a) of the Criminal Code (see footnote b), hereby makes the annexed Regulations Prescribing Certain Offences to be Serious Offences.
REGULATIONS PRESCRIBING CERTAIN OFFENCES TO BE SERIOUS OFFENCES
1. The following offences under the Criminal Code are serious offences that are included in the definition “serious offence” in subsection 467.1(1) of that Act:
(a) keeping a common gaming or betting house (subsection 201(1) and paragraph 201(2)(b));
(b) betting, pool-selling and book-making (section 202);
(c) committing offences in relation to lotteries and games of chance (section 206);
(d) cheating while playing a game or in holding the stakes for a game or in betting (section 209); and
(e) keeping a common bawdy-house (subsection 210(1) and paragraph 210(2)(c)).
2. The following offences under the Controlled Drugs and Substances Act are serious offences that are included in the definition “serious offence” in subsection 467.1(1) of the Criminal Code:
(a) trafficking in any substance included in Schedule IV (paragraph 5(3)(c));
(b) trafficking in any substance included in Schedule II in an amount that does not exceed the amount set out for that substance in Schedule VII (subsection 5(4));
(c) importing or exporting any substance included in Schedule IV or V (paragraph 6(3)(c)); and
(d) producing any substance included in Schedule IV (paragraph 7(2)(d)).
COMING INTO FORCE
3. These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue and objectives
The Regulations Prescribing Certain Offences to be Serious Offences will provide more flexibility in responding to the threats posed by organized crime groups. A “serious offence” is defined in the Criminal Code to mean an indictable offence under any Act of Parliament for which the maximum punishment is at least five years’ imprisonment or another offence that is prescribed by regulation. The Regulations will make a number of criminal offences “serious offences” for the purposes of the organized crime provisions.
Organized crime is known to include a wide range of criminal activity. Some of these criminal acts do not always meet the definition of serious offence because they are not punishable by five years or more. This may prevent these groups from being labelled as “criminal organizations” in the Criminal Code. This, in turn, precludes the police and prosecutors from using the various provisions in the Criminal Code that are specifically targeted at organized crime, including the organized crime offences and provisions dealing with wiretaps, the granting of bail, seizing proceeds of crime, parole eligibility and sentencing considerations. The Regulations will address this by designating 11 specific offences addressing gambling, prostitution and drug activity as “serious offences.”
Description and rationale
Organized crime garners wide-spread attention from the public, law enforcement, Parliamentarians and provincial legislators. Criminal Intelligence Service Canada (CISC, 2009) estimates that 750 organized crime groups operate across Canada. There are a number of crimes that are foundational and highly lucrative for organized crime. These include drug trafficking, money laundering and the illicit movement of firearms, tobacco, human beings and vehicles. New technologies provide criminal organizations with new ways to engage in crime, including financial crime and identity-related offences. Organized crime is also known to be engaged in a variety of other criminal acts including prostitution-related offences, gambling offences and counterfeiting. Regardless of the activity or the level of sophistication of the enterprise, all organized crime groups pose serious threats to Canadian society.
The Government has introduced and passed legislation targeting organized crime. For example, Bill C-14, An Act to amend the Criminal Code (organized crime and protection of justice system participants), S.C. 2009, c. 22, received Royal Assent on June 23, 2009. Amongst other things, Bill C-14 amended the Criminal Code to make all gang murders automatically first degree murder and to create a new offence targeting drive-by and other reckless shootings. Bill C-14 came into force on October 2, 2009.
In 2009, the House of Commons Standing Committee on Justice and Human Rights commenced two separate studies on organized crime. The first is assessing the general state of organized crime in Canada while the second is exploring the specific issue of declaring certain groups to be criminal organizations. This work is ongoing.
The Criminal Code includes numerous provisions dealing specifically with organized crime. Section 467.1(1) of the Criminal Code defines “criminal organization” to mean 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.
Subsection 467.1(4) of the Criminal Code empowers the Government to respond to the changing activities of organized crime groups by allowing the Governor in Council to make regulations prescribing offences, which are punishable by less than five years’ imprisonment, to be “serious offences” for the purpose of the criminal organization provisions.
The Regulations will make 11 criminal offences “serious offences” for the purposes of the organized crime provisions. Doing so will enable law enforcement and prosecutors handling investigations and prosecutions related to these 11 offences to rely upon, in appropriate cases, the various tools contained in the Criminal Code that specifically respond to organized crime activities.
The Regulations do not create a new offence and therefore the cost implications associated with these changes are expected to be minimal. The types of crimes incorporated into the Regulations include activities traditionally associated with organized crime, such as certain prostitution-related, gambling and drug offences. By expanding the definition of “serious offence” to include these types of offences, the Regulations will more accurately reflect the full range of conduct engaged in by organized crime. More generally, having recourse to the organized crime provisions enables police and prosecutors to respond in a manner that is proportionate to the increased threat to public safety that occurs when organized crime engages in criminal acts.
Expanding the availability of the criminal organization provisions creates the possibility that individuals may be subjected to longer periods of incarceration because it makes the use of the criminal organization offences possible.
The ability to enact a serious offence regulation was first made available in 2002 through the coming into force of Bill C-24, An Act to amend the Criminal Code (organized crime and law enforcement), S.C. 2001, c. 32. In 2003, the Uniform Law Conference of Canada (ULCC) endorsed a recommendation that a “serious offence” regulation be developed in collaboration with the provinces and territories. The ULCC Criminal Division brings together prosecutors and other lawyers from federal, provincial and territorial governments, defence counsel and judges to consider amendments to criminal laws. The delegates make recommendations for changes to federal criminal legislation based on identified deficiencies, defects or gaps in the existing law.
The development of the proposed Regulations has, most recently, been informed by discussions with the provinces and territories through meetings of the Coordinating Committee of Senior Officials (CCSO) — Criminal Justice. The CCSO is the primary vehicle for collaboration amongst federal, provincial and territorial (FPT) officials on criminal justice issues. The CCSO operates at a plenary level with a number of working groups established under the main plenary table whose mandates are based on specific issues.
The CCSO Working Group on Organized Crime considered the proposed list of offences at their December 2008 and November 2009 meetings. This working group is comprised of senior justice officials with expertise in criminal law generally and organized crime in particular. Law enforcement representatives are also members of the working group. The Regulations incorporate the working group’s comments.
All FPT ministers responsible for Justice endorsed the development of a serious offence regulation at their 2007 meeting.
Implementation, enforcement and service standards
The administration of justice in Canada is a shared responsibility. While the federal government is responsible for the development of the criminal law, the enforcement of most criminal offences in Canada falls under the responsibility of the provinces and territories. Justice Canada officials sought the views of their provincial and territorial counterparts, as well as the Public Prosecution Service of Canada, regarding the coming into force of the Regulations. Justice Canada officials will also monitor the effects of the Regulations.
Criminal Law Policy Section
284 Wellington Street
S.C. 2001, c. 32, s. 27
R.S., c. C-46
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