Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

I.          Introduction

[1]                This appeal is from a declaration quashing count 1 of an indictment charging the respondent, Anthony Terezakis, with the criminal organization offence of "instruction".  The learned trial judge concluded that the charging section, s. 467.13 of the Criminal Code, was constitutionally vague and overbroad because of difficulties with the meaning of "criminal organization", a term defined by s. 467.1(1) and linked to essential elements of the offence.  Her reasons may be found at 2005 BCSC 1727.

II.         Overview

[2]                The Crown alleged that Mr. Terezakis was the leader of a criminal organization involved in drug trafficking.  He was charged with others on a multi-count indictment.  He was solely charged under s. 467.13 (the "instruction offence") by count 1, which reads:

Being one of the persons constituting a criminal organization whose members included any three or more of the following persons: [then follows a list of 21 names or pseudonyms] and other persons unknown did, between the 4th day of February, 2002 and the 7th day of August, 2003, at or near the Cities of Vancouver, Surrey, Coquitlam, Abbotsford and places elsewhere in the Province of British Columbia, knowingly instruct directly or indirectly any person including any member of that criminal organization, to commit the indictable offences of trafficking in the controlled substances of cocaine and diacetylmorphine (heroin) contrary to section 5(1) of the Controlled Drugs and Substances Act  for the benefit of the said criminal organization contrary to section 467.13 of the Criminal Code of Canada.

[3]                The indictment also charged Mr. Terezakis jointly or solely for various offences on 15 other counts, including conspiracy to traffic in cocaine and heroin, trafficking in cocaine and heroin, assaults and related offences, and unlawful confinement.

[4]                The constitutional challenge to s. 467.13 and s. 467.1 was heard by the trial judge by agreement on a pre-trial motion.  Following her ruling quashing count 1, Mr. Terezakis entered guilty pleas to the charge of conspiracy and the two counts charging him with trafficking in cocaine and heroin.  The charges against his co-accused were severed.  The Crown proceeded against Mr. Terezakis on the remaining counts and he was convicted by a jury on three counts of assault with a weapon and eight counts of assault.  He received a total sentence of eleven-and-a-half years' incarceration.  His co-accused is still awaiting trial.

III.        The Text of the Impugned Sections 467.1 and 467.13

[5]                A criminal organization is defined by s. 467.1. It reads:

467.(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.

(4)        The Governor in Council may make regulations prescribing offences that are included in the definition "serious offence" in subsection (1).

[6]                The instructing offence section reads;

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.

[7]                The text of two other related criminal organization offences, s. 467.11 and s. 467.12 is attached as an appendix to these reasons.  All of these provisions were enacted by An Act to amend the Criminal Code (organized crime and law enforcement), S.C. 2001, c. 32, s. 27 ("Bill C-24").

IV.        The Legislative Background of Criminal Organization Offences

[8]                Before considering whether these statutory provisions conform to the Charter of Rights and Freedoms, this Court has to carry out the task of interpreting their meaning and scope.  To do that, the courts have adopted a comprehensive statutory construction approach known as the "modern principle".  R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 highlights its applicability to the offence-creating provisions of the Criminal Code.  The approach is succinctly described in Re Application Under s. 83.28 of the Criminal Code, [2004] 2 S.C.R. 248 at para. 34, 2004 SCC 42:

The modern principle of statutory interpretation requires that the words of the legislation be read "in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. This is the prevailing and preferred approach to statutory interpretation: see, e.g., Rizzo & Rizzo Shoes Ltd., Re , [1998] 1 S.C.R. 27 (S.C.C.), at para. 21; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2 (S.C.C.), at para. 33; Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42 (S.C.C.), at para. 26. The modern approach recognizes the multi-faceted nature of statutory interpretation. Textual considerations must be read in concert with legislative intent and established legal norms.

Thus, the language, the context, the history and the purpose of the criminal organization provisions must be considered in order for their meaning to be appreciated.

[9]                The 2001 amendments replaced the offence of participation in a criminal organization, created by 1997 amendments to the Code (S.C. 1997, c.23; "Bill C-95").  That offence was found to be inadequate and too easily avoided.  Three new offences of escalating culpability were created: participation in the activities of a criminal organization for the purpose of enhancing its ability to commit offences (the "participation offence" - s. 467.11); committing an offence for the benefit of a criminal organization (the "commission offence" - s. 467.12); and the instructing offence in s. 467.13 above.  These new offences were linked to the definition of criminal organization in s. 467.1(1).  The participation offence carries a maximum penalty of five years' imprisonment, the commission offence 14 years' imprisonment, and the instructing offence life imprisonment. 

[10]            Special rules apply to investigation and sentencing in criminal organization cases.  Wiretap authorizations for criminal organization offences may be valid for up to one year (s.186.1) and the applicant is not required to establish investigative necessity to obtain an authorization (s. 186(1.1)).  A sentence imposed for a criminal organization offence must be consecutive to any other punishment (s. 467.14) and special parole ineligibility limits apply (s. 743.6(1.2)). An accused charged with a criminal organization offence faces a reverse onus on any bail application (s. 515(6)(a)).

[11]            The definition of a criminal organization presents a particular drafting challenge because illegal enterprises mutate and operate outside the law.  Bill C-24 was a response to shortcomings identified in the 1997 criminal organization offence.  Criminal groups were able to reorganize to avoid the requirement in the earlier offence that the group include at least one person who had committed a series of indictable offences in the preceding five years punishable by imprisonment of five years or more.  The 2001 amendments were intended to provide a more flexible definition of criminal organization and replace the single offence with three offences aimed at a wider range of activity associated with organized crime.  While continuing to identify the entity as a "criminal organization" the definition in s. 467.1 puts the emphasis on flexibility in the description of the organization as a group, "however organized."

[12]            The group must be composed of three or more persons, in or outside Canada, and is limited by the definitional qualifications that follow.  It must have as one of its main purposes or main activities, the facilitation or commission of one or more serious offences, defined as an indictable offence with a maximum punishment of five years or more.  The serious offences must, if committed, likely result in a direct or indirect "material benefit" by the group or any of its constituent persons.  The submissions of the Attorneys General of Canada and British Columbia (and count 1 of the indictment) refer to the persons composing the group as "members" of the group but the word "members" is not found in the sections.

[13]            "Facilitation" is further defined to avoid linkage to any particular offence or actual commission of an offence.  A "group of persons that forms randomly" is excluded from the scope of "criminal organization".  Unlike the other two criminal organization offences, the instructing offence requires proof that the accused is one of the persons who constitute a criminal organization, although the prosecution is not required to prove that the accused knew all of the others who constitute the organization.  The accused must "knowingly instruct" another person to commit an offence.  The instruction may be given directly or indirectly and the prosecution is not required to prove that the accused instructed any particular person to commit the offence or that the offence was actually committed.  The instructed offence may be an offence under any federal statute in contrast to the predicate offences under the other two organization offence sections, which are limited to indictable offences.

[14]            The instructing offence carries the maximum penalty of the three criminal organization offences implying that Parliament considered it to be the most culpable offence.  The Minister of Justice, Anne McLellan, speaking to the bill before the House of Commons, described the instructing offence as dealing "specifically with leaders in criminal organizations."  She added:

Leaders of criminal organizations pose a unique threat to society.  Operationally they threaten us through their enhanced experience and skills.  Motivationally they threaten us through their constant encouragement of potential and existing criminal organization members.  Accordingly in the Bill we have moved aggressively to identify, target and punish those within criminal organizations, whether or not formally designated as leaders, who knowingly instruct others to commit any offence, indictable or otherwise, under any Act of Parliament for the benefit of, at the direction of, or in association with a criminal organization.

[15]            The identification of leaders of criminal organizations as the intended target of the instruction offence suggests that it is the instructing person's connection to the criminal organization that warrants the greater maximum sanction for this offence.  It is the instruction that is the offence rather than the predicate offence instructed, which may be any federal offence and need not be actually committed. The delineation of the instructing person's necessary link to the group becomes a critical aspect of the instruction offence.

V.         The Trial Judge's Reasons

a.         The interpretation of "criminal organization" as defined

[16]            The reasons of the learned trial judge hinge on her view of the meaning of "group" in the definition of criminal organization.  She concluded that the area of risk inherent in "group, however organized" was essentially unconstrained and consequently "so vague as to constitute no meaningful guidance at all".  Alternatively, she concluded that if it was not vague, it was "almost boundless" and overbroad.  There are three critical aspects of her analysis.  First, she concluded that the word "group" was an entirely neutral term with an inherently broad meaning.  The addition of "however organized" served to exclude random groupings and classifications based on personal characteristics but otherwise had "a potentially vast field of application".

[17]            She then considered the requirement in s. 467.1(1)(b) that the group "has as one of its main purposes or main activities the facilitation or commission of one or more serious offences…" with emphasis on the underlined words.  She accepted that a main purpose was an effective limiting aspect of a group, because the purpose in large part describes or identifies the group and all members are likely to be aware of that purpose.  However, she concluded that the same could not be said of a "main activity" which is stated disjunctively in the definition.  In her view: "A group may engage in a main activity unrelated to the characterizing purpose or feature of the group."  Thus a group that exists because of a feature completely unrelated to crime may nonetheless have as one of its main activities serious crime as described in s. 467.1(1)(b).  She therefore decided that: "The fact that a group has a serious offence purpose or activity as described in s. 467.1(1)(b) does not cast any light on the boundaries of membership of the "group"."  It followed in her view that a person could be a member of a group and unaware that one of its main activities was serious crime.

[18]            The trial judge distinguished R. v. Lindsay (2004), 182 C.C.C. (3d) 301 (Ont. S.C.J.), which had considered the interpretation of criminal organization in the context of upholding the constitutionality of the s. 467.12 commission offence, on the ground that for the commission offence it was not necessary to determine the precise boundaries of the relationship between the accused and the criminal organization.

b.         The Instruction Offence

[19]            The trial judge then addressed the limiting elements of the instruction offence in s. 467.13, having found an ambit of "persons who constitute a criminal organization" that is very broad and extends to persons who may be unaware that the organization has a main serious purpose or activity.   She accepted that a person who "knowingly instructs" the commission of an offence must be in a position of authority but she rejected the submission of counsel for the Attorneys General that the person giving the instruction necessarily must be a member of the criminal organization and aware of that fact.  In her view, the instructing person's position of authority may be unrelated to the group and the person may commit an offence in close connection with the criminal organization without being a member of the group.  She noted that the instructed offence does not have to be a serious offence and extends to any offence under a federal statute.

[20]            In the result she concluded that neither the s. 467.1(1) definition of "criminal organization" itself nor the context of its use in s. 467.13 circumscribe the boundless possible versions of a "group, however organized" which may be a criminal organization.  It followed, in her view, that the s. 467.13 knowing instruction offence was constitutionally vague and overbroad.

[21]            Counsel for the Attorneys General challenge all the key elements of the trial judge's analysis. 

VI.        The Authorities re Vagueness and Overbreadth

[22]            The principles underlying the tests for constitutional vagueness and overbreadth have been enunciated by the Supreme Court of Canada and are not in question.  The issues involve the application of those principles to the impugned sections.

[23]            The test for vagueness was aptly summarized by Gonthier J. in R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 624.  A law is unconstitutionally vague if it does not provide an adequate basis for legal debate so that its meaning can be determined by reasoned analysis applying legal criteria.  He expanded on the context of the analysis in R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031 at para. 47.  It is not to be determined as an abstract proposition.  The analysis must consider the purpose and subject matter of the law, societal values, related legislative provisions and prior judicial interpretations.

[24]            As McLachlin C.J.C. explained in Canadian Foundation for Children, Youth and the Law v. Attorney General of Canada, [2004] 1 S.C.R. 76, at para. 16, a vague law prevents a citizen from realizing when he or she is entering an area of risk for criminal sanction. It makes it difficult for the authorities to determine if a crime has been committed and may give too much discretion to law enforcement officials.

[25]            The core application of the instruction offence to persons in positions of leadership in criminal organizations is relatively uncontroversial.  It is at the periphery that difficulties arise, and vagueness and overbreadth questions become interrelated.  This aspect has been described as a proportionality analysis, directed to whether a law, even if it is not vague, applies in a proportionate manner to a particular fact situation: see Canadian Pacific at paras. 80-82.  It is at this stage of the analysis that reasonable hypothetical fact situations can be of assistance.

[26]            The intervenor British Columbia Civil Liberties Association emphasized that constitutional scrutiny requires that the criminal law sufficiently delineate an area of risk to allow for substantive notice to citizens.  This requirement and its rationale was forcefully expressed by Lamer J. (as he then was) in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) ("the Prostitution Reference"), [1990] 1 S.C.R. 1123, at 1152:

It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards…. This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law.

The criminal organization provisions must meet that standard of rigorous constitutional scrutiny. 

[27]            With this background, I turn to the issues arising from the trial judge's analysis.

VII.       The Composition of a Criminal Organization

[28]            The trial judge recognized that the reference to a criminal organization as a group, however organized, required some form of organization but she concluded that the description gave essentially no guidance as to the limits of such an organization.  In her view there is no requirement that those who constitute the group share a crime-related or any common objective.  She contrasted the Code wording with the comparable provisions of the United Nations Convention against Transnational Organized Crime ("UNTOC") which influenced the 2001 amendments.  Canada was one of the original UNTOC signatories in December 2000 and it ratified UNTOC on 13 May 2002.

[29]            Article 2 of UNTOC contains a definition of "organized criminal group" that is similar to the definition of criminal organization in s. 467.1.  The material part of Article 2 reads:

Article 2

For the purposes of this Convention:

(a)        "Organized criminal group" shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;

(b)        "Serious crime" shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty;

(c)        "Structured group" shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure.

[30]            Article 5 outlines the offences contemplated by the Convention:

Article 5

Criminalization of participation in an organized criminal group

1.         Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:

(a)        Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:

(i)         Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;

(ii)        Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:

a.         Criminal activities of the organized criminal group;

b.         Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;

(b)        Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.

[31]            UNTOC's "structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences…" is replaced by s. 467.1 with "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…" [Emphasis added.]  The trial judge observed: "There could be no suggestion on the language of the UN definition that the criminal organization is larger than those within it who commit or subscribe to the group's serious crime purpose or activity."  I agree with that observation but I think it is also capable of application to the s. 467.1 definition.   

[32]            The trial judge concluded that the disjunctive inclusion of main activities in the s. 467.1 definition is problematic because it could extend those within the group to those who may share an innocent main purpose but who do not share the facilitation or commission of a main criminal activity, and indeed may be unaware of that criminal activity.  Mr. Nathanson, for the respondent, put forward a hypothetical example that may assist in exploring this aspect of the issue.  A baseball team is organized to play baseball.  All of the infielders on the team grow marijuana and discuss it regularly at practices.  The outfielders on the team have no involvement in drugs whatsoever.  An outfielder instructs a batboy to drive to a field where a game is to be held and drop off the team equipment, knowing that the batboy is prohibited from driving (a s. 467.13 predicate offence under s. 259(4) of the Code).  Whether the outfielder has committed the instruction offence under s. 467.13 depends in part on whether he is one of the persons "who constitute a criminal organization".  Mr. Nathanson's submission, and presumably the trial judge's view is that the group is the baseball team.  That overlooks the functional character of the group intended to be caught by the definition.  In my view, that group must be limited to the infielders who share the common activity and it excludes the outfielders who share neither that purpose nor activity.  The fact that both the infielders and the outfielders are members of a team that plays baseball does not make the team the group in these circumstances.  The team's purpose and activity is baseball not the facilitation or commission of a serious offence.

[33]            While the difference between a more or less formal organizational structure and a functional group may require careful analytical distinction, "however organized" in my view is intended to identify the group connected to the criminal purpose or activity.  It does not include persons who are not functionally connected to that criminal purpose or activity, irrespective of their links to organizations with legitimate purposes and activities that include persons in the criminal group.  Consequently I do not think that the trial judge's examples (at paras. 111 and 112 of her reasons) of a martial arts teacher who gives lessons to gang members and the customer of a marijuana café could be included in the group that constitutes a criminal organization.  They may be aware of a criminal purpose or activity by the group but they are not part of it.

[34]            The underlying reality is that criminal organizations have no incentive to conform to any formal structure recognized in law, in part because the law will not assist in enforcing illegal obligations or transactions.  That requires a flexible definition that is capable of capturing criminal organizations in all their protean forms.  The Code provisions are a response to that reality. Nonetheless, the persons who constitute "the group, however organized" cannot be interpreted so broadly as to ensnare those who do not share its criminal objectives.  

[35]            The importance of the required link to the organization in the instruction offence is apparent from a comparison of the instruction offence with the participation and commission offences. Those offences do not require that the accused be part of the group that constitutes the criminal organization.  It is sufficient for the participation offence that the accused person, with the requisite knowledge, participates in activities that enhance the ability of the organization to commit or facilitate an indictable offence.  Similarly, the commission offence only requires that the indictable offence committed have a link to the criminal organization; the person committing the offence does not have to be otherwise connected to the organization.

[36]            A narrower interpretation of the instructing person's requisite link to the criminal organization is reinforced by the internal structure of s. 467.13 which shifts the balance of culpability to the instruction from the predicate offence instructed. The instruction is an offence even if the predicate offence instructed is not committed. In addition, the instructed predicate offence extends to any offence under a federal statute in contrast to the less serious participation and commission offences which both limit their predicate offences to indictable offences.  

[37]            The scheme of the 2001 amendments created tiered offences of escalating culpability.  The instructing offence was intended to be the most serious of the three criminal organization offences, implicit from the maximum penalty of life imprisonment.  According to Minister McLellan's statement, it was aimed at leaders of criminal organizations.   A wide interpretation of the instructing person's link to the criminal organization could overlap the participation and commission offences and amplify the scope for prosecutorial discretion.  Such a discretion would be inconsistent with the clear and explicit legislative standards that the criminal law requires: see the Prostitution Reference, supra; R. v. Hufsky, [1998] 1 S.C.R. 621; R. v. Kelly, [1992] 2 S.C.R. 170.  Proportionality requires that the boundaries between the three offences be capable of reasonable delineation.  Where alternative interpretations are possible, an interpretation that is consistent with clear standards should be preferred.

[38]            All counsel resisted a close analogy between criminal organization offences and a conspiracy offence, notwithstanding that Mr. Terezakis now has pleaded guilty to the conspiracy count of the indictment that covers most of the same ground as the criminal organization alleged in count 1.  It may be that the criminal organization offences were crafted intentionally to avoid the necessity of proving an agreement between conspirators and other technicalities that have encrusted that branch of the criminal law.  Nonetheless, I think that the reference to an organized group necessarily implies a purpose or activity that is shared by those who form the group.  With respect, I think that it overstrains the wording to extend it to persons who may share an innocent purpose but who are unaware of and do not share the main purpose or activity of facilitation or commission of serious offences.  Where a criminal group shelters under the umbrella of a legitimate entity, the criminal organization must be limited to those persons associated by their criminal purpose or activity.  The definition is functional in terms of shared purpose or activity and not necessarily co-extensive with any formal structure.  While UNTOC refers to a structured group, structure is defined in terms that do not require "formally defined roles for its members, continuity of its membership or a developed structure."  I do not think that the differences between UNTOC and the Code on this point are significant.

[39]            In my view, the trial judge erred in interpreting main activities to extend the definition of criminal organization to include persons who are part of a group without a main criminal purpose and have no common involvement with others in the group in a main criminal activity. As I read the definition the persons who compose the group must share a main purpose or activity that involves the facilitation or commission of serious offences.  A person who does not share such a purpose or activity is not part of the group.

VIII.      The meaning of "knowingly instructs" 

[40]            The Attorney General of Canada submits that the knowing instruction offence is limited to those who knowingly are members of criminal organizations and instruct others to commit offences for their organizations.  "Knowingly instructs" imparts a subjective element of mens rea; the instructing person must know that he is part of the group and exercising the authority of the group for the group.  The importance of the element of subjective knowledge is emphasized by Professor Freedman in a comprehensive article that compares the criminal organization offences with UNTOC and the Racketeer Influenced and Corrupt Organizations Act ("RICO") in the United States: see David Freedman, The New Law of Criminal Organizations in Canada (2006), 85 C.B.R. 172 at 217. This implies that the group of persons who constitute the criminal organization is intended to have a narrower ambit than those who may participate in its activities as members or adherents, however loosely defined.

[41]            In my view, the correct interpretation of the knowledge requirement is captured by the passage from the suggested jury charge submitted by the Attorney General of British Columbia as follows:

You also must be satisfied beyond a reasonable doubt that the accused knows that the characteristics of the group [are] that of a criminal organization.  In other words the accused must have knowledge that he is part of a group, with at least two others, that he knows has as one of its main purposes or main activities the facilitation or commission of one or more serious offences (indictable offences with a maximum punishment of 5 years or more) that, if committed or facilitated, 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.

[42]            The trial judge observed that the authority exercised in the instruction by a "person who knowingly instructs, directly or indirectly, any person to commit an offence…" did not have to emanate from the position of the instructing person in the criminal organization.  She was concerned that the instruction offence could be committed by a person who was not aware that he or she was one of the persons who constitute the criminal organization.  In reaching that conclusion, she noted that the instructed person could be "any person", unconnected to the organization, implying in her view a broader scope to the s. 467.13 instruction offence. The trial judge's concern is met once it is determined that the instruction offence requires subjective knowledge that the instructing person is part of the criminal organization. That knowledge plus the fact that the instructed offence must be connected to the criminal organization avoids the risk of an overbroad ambit to the offence and I do not think that the fact that the source of the instructing person's authority may be outside the criminal organization is problematic. 

[43]            Interpreted as above, I am satisfied that the impugned provisions are capable of reasonable delineation and they are not constitutionally vague or overbroad.

IX.        Freedom of Association

[44]            Mr. Terezakis submits that the impugned provisions offend the right to freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms.  The trial judge did not find it necessary to address this submission as she found s. 467.13 unconstitutionally vague and overbroad.  Mr. Terezakis contends that the inclusion of groups within the definition of criminal organization that "has as one of its main purposes or main activities the facilitation or commission of one or more serious offences" offends the right to freedom of association.  He contends that because all persons who constitute a criminal organization under this definition need not engage in criminal activity or share a criminal purpose, the freedom of association of those law-abiding persons is violated.  This submission does not recognize that the definition of criminal organization, standing alone, does not create an offence.  As discussed above, the instruction offence requires that the instructing person must have knowledge of a main criminal purpose or main criminal activity when instructing the commission of an offence connected to the organization.  This requirement gives an accused fair notice that he or she is at risk.  Similarly, both the participation offence (s. 467.11) and the commission offence (s. 467.12) require knowledge of a connection between the organization and criminal activity that goes beyond mere innocent association with the organization.  In my view, the offences are sufficiently circumscribed that innocent persons untainted by criminality are not caught in the web of criminal organization offences.  It follows that the right to freedom of association is not infringed: see R v. Carrier, [2001] R.J.Q. 628, [2001] J.Q. no 224 (S.C.) (Q.L.), at paras. 26-33 with reference to the pre-amendment s. 467.1.

X.         The Trial Process Issue

[45]            Mr. Terezakis submits that an accused's right to a fair trial will be impaired by bad character evidence, otherwise inadmissible, of past criminal behaviour by the accused and his associates introduced to prove the accused's connection with a criminal organization.  He contends that a jury instruction limiting the use that can be made of such evidence would be inadequate to remove the prejudice of guilt by association resulting from such evidence.

[46]            Criminal organization offences make evidence of general propensity and bad character probative that would otherwise be excluded as prejudicial.  No doubt such evidence will present challenges for jury instruction in trials of criminal organization offences.  The balance between probative value and prejudice was discussed in depth by Binnie J. in the context of similar fact evidence in R. v. Handy, [2002] 2 S.C.R. 908 at paras. 31-55 and later considered by Major J. in R. v. Perrier, [2004] 3 S.C.R. 228 at paras. 31-34 in the context of an identity issue.  While the concern about unfair prejudice is real, I am not persuaded that it is so compelling as to preclude a fair trial and fatally compromise the constitutional legitimacy of the criminal organization offences.  The Attorney General of British Columbia accepts that a trial judge retains a residual discretion to exclude evidence where the prejudicial effect outweighs its probative value and the scope for the exercise of this discretion may be more extensive in the context of criminal organization offences. The fair trial submission was not strongly pressed in argument by counsel for Mr. Terezakis and if the issue is to be revisited in a later case, in my view, it would be helpful to do so in the context of particular facts.

XI.        Conclusion

[47]            In the result, I have concluded that the instruction offence is not constitutionally flawed.  I would allow the appeal and vacate the order quashing count 1 of the indictment.

“The Honourable Mr. Justice Mackenzie”

Reasons for Judgment of the Honourable Mr. Justice Chiasson:

[48]            I have had the privilege of reading a draft of the reasons for judgment of Mr. Justice Mackenzie.  I agree with his conclusion that s. 467.13 of the Criminal Code, R.S.C. 1985, c. C-46, is not constitutionally flawed, but I conclude that ss. 467.1 and 467.13 apply more broadly than my colleague considers.

[49]            Mr. Justice Mackenzie concludes that for a person to be in a criminal organization, he or she must share the group's criminal objectives.  I would not impose such a limitation in the threshold constitutional definition of the impugned sections and do not consider it to be an essential element that the Crown must prove in a prosecution under s. 467.13.

The definition of "group"

[50]            My colleague has reviewed the law concerning vagueness and I do not repeat it.  In summary, the citizen needs to know that "an area of risk" or "a risk zone" of criminal sanction is at hand, but there is no need to predict with certainty whether such sanction will be applied (Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 234 D.L.R. (4th) 257; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36).  The issue also was addressed in R. v. Lindsay (2004), 70 O.R. (3d) 131, 182 C.C.C. (3d) 301 (S.C.J.), in which s. 467.1 was considered and held to be constitutional in the context of s. 467.12.  Subsequently, Lindsay and the trial judgment in this case were considered in R. v. Smith (2006), 280 Sask. R. 128, 2006 SKQB 132, in which the court adopted the reasoning in Lindsay without further analysis.

[51]            Also of concern is the potential for arbitrary or discriminatory application of a law.  This was addressed specifically by McLachlin C.J.C. in Canadian Foundation for Children.  She provided the following caution in para. 17:

Ad hoc discretionary decision making must be distinguished from appropriate judicial interpretation.  Judicial decisions may properly add precision to a statute.  Legislators can never foresee all the situations that may arise, and if they did, could not practically set them all out.  It is thus in the nature of our legal system that areas of uncertainty exist and that judges clarify and augment the law on a case-by-case basis.

[52]            These comments echo those of Gonthier J. in Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 in paras. 48 and 49:

The mediating role of the judiciary is of particular importance in those situations where practical difficulties prevent legislators from framing legislation in precise terms. . .

. . .

The use of broad and general terms in legislation may well be justified, and s. 7 [of the Charter of Rights and Freedoms] does not prevent the legislature from placing primary reliance on the mediating role of the judiciary to determine whether those terms apply in particular fact situations. . .

. . .

. . . a deferential approach should be taken in relation to legislative enactments with legitimate social policy objectives, in order to avoid impeding the state's ability to pursue and promote those objectives. . . .

[53]            In R. v. Heywood, [1994] 3 S.C.R. 761, 120 D.L.R. (4th) 348, Cory J. noted at 792, "[o]verbreadth and vagueness are different concepts, but are sometimes related in particular cases".  He noted "[o]verbreadth analysis looks at the means chosen by the state in relation to its purpose".  If means used by the state exceed what is necessary to accomplish the legislative objective, the law is overly broad.  Mr. Justice Cory added at 793:

In analyzing a statutory provision to determine if it is overbroad, a measure of deference must be paid to the means selected by the legislature.  While the courts have a constitutional duty to ensure that legislation conforms with the Charter, legislatures must have the power to make policy choices.  A court should not interfere with legislation merely because a judge might have chosen a different means of accomplishing the objective. . . .

[54]            Criminal organizations are a scourge.  As my colleague notes, they know no legal boundaries and accept no proper restraints.  The problem is not just Canadian as is evidenced by the United Nations Convention against Transnational Organized Crime, 15 November 2000, 40 I.L.M. 335 (entered into force 29 September 2003) ("UNTOC"), to which Canada is a signatory.  Parliament first addressed the problem of criminal organizations in 1997, but, as noted by Mackenzie J.A., the law was ineffective.  Criminal organizations merely re-ordered their affairs to escape the reach of the law.  The law's focus appears to have been on the individuals who comprised the criminal organization and their criminal activities. 

[55]            At the time the legislation under review was being considered by Parliament, it was clear that responding to the harm done by criminal organizations was a priority.  When moving second reading of Bill C-24 in the House of Commons on 23 April 2001, the Minister of Justice noted, "[i]n the Speech from the Throne, our government promised to take aggressive steps to combat organized crime."  The extent of the effect of the activities of criminal organizations was addressed by the Minister at a 21 November 2001 meeting of the Standing Senate Committee on Legal and Constitutional Affairs as follows:  ". . . the actions of organized criminals are felt across this country, in communities of all sizes and kinds.  This is not simply a big city problem.  Organized criminals are at the heart of serious social problems."

[56]            The target of the legislation under review is the criminal organization, not those who comprise the criminal organization.  Merely being in the group is not illegal.  The scheme of the legislation is to undermine mechanisms that support the criminal activities of criminal organizations.  The starting point in the constitutional analysis is the definition of "criminal organization" (s. 467.1).  This leads to criminal offences based on:  enhancing the ability of the criminal organization to conduct its illegal activities (s. 467.11); acting to commit crime to benefit the criminal organization (s. 467.12); instructing others to commit crimes for the benefit, or at the direction, of the criminal organization, or in association with it (s. 467.13).  Parliament has proceeded on the basis that if these three types of activities were constrained, the effectiveness of the criminal organization would be impaired. 

[57]            Constitutional consideration of the legislation must include the role played by the definition section, s. 467.1, and, in this case, its relationship with s. 467.13.  The target being criminal organizations and the crimes being activities that support those organizations, the citizen must appreciate that an area of risk of criminal sanction exists.

[58]            At the core of the risk is knowledge that a main purpose or activity of the group is the facilitation or commission of serious criminal offences.  Parliament has said very clearly that if a citizen were in a group of three or more persons that has some organization and the group has as a main purpose or activity the facilitation or commission of serious offences, the citizen is a member of a criminal organization.  There is nothing vague about this.  Parliament has not made it illegal to be a member of such a group, but Parliament has made it very clear that membership brings the citizen to the threshold of potential criminal sanction.

[59]            Section 467.1 reflects the fact that criminal organizations often blend their criminal operations with legitimate operations.  This is reflected in the words "one of its main purposes or activities".  This means that a person will be part of a criminal organization regardless whether the group has legitimate purposes or activities.  There is nothing in the language of s. 467 that states membership in the group requires the person to share in or support any particular purpose or activity of the group.  To read such a requirement into the section would be to alter the definition to say "three or more persons who share or support. . ."

[60]            In my view, in a prosecution for an offence under ss. 467.11, 467.12 or 467.13, the Crown would be obliged to establish that the accused had knowledge of the criminal main purpose or activity of the group.  Although it might be a reasonable inference from simply being part of the group, there is nothing in s. 467.1 that requires the Crown to establish that the accused shares, supports or even agrees with the criminal main purpose or activity.

[61]            Section 467.13 requires the Crown to prove that the accused "knowingly" instructed the commission of an offence.  In R. v. Jorgensen, [1995] 4 S.C.R. 55, 129 D.L.R. (4th) 510, the majority stated at para. 64:  "[i]t is a general rule of statutory construction that when the term 'knowingly' is used in a criminal statute, it applies to all elements of the actus reus".  The core elements of the actus reus under s. 467.13 are:  being a member of a criminal organization and instructing the commission of an offence linked to the criminal organization.

[62]            The requisite mens rea for a conviction under s. 467.13 is knowledge that the group, of which the accused is a part, has a criminal main purpose or activity and knowledge that the instructing offence is likely to benefit that group or at the direction of, or in association with the group.  There is nothing vague about this.  The ingredients are:

·         membership in a group, however organized;

·         knowledge that a main purpose or activity of the group is the facilitation or commission of serious crime;

·         knowledge that the crime likely would result in a direct or indirect benefit to the group or any person in the group;

·         as a member of the group, knowingly instructing another to commit a crime for the benefit of the group, at its direction or in association with the group.

[63]            Whether an accused's assertion that he or she did not share the main criminal purpose or subscribe to the main criminal activity of the group has relevance to conviction, is a matter that can be considered in the interpretation and application of the legislation on a case-by-case basis, but in my view, there is no doubt that the citizen knows the zone of risk and the implications of being part of such a group and instructing others to commit crimes for the benefit of, at the direction of, or in association with the group.

[64]            The trial judge concluded that the reach of s. 467.1 was greater than that of the definition of criminal organization in UNTOC.  Mr. Justice Mackenzie answered the concern of the judge by interpreting s. 467.1 as consonant with the definition of criminal organization in UNTOC, holding that a person who does not share the main criminal purpose or activity is not part of the group.  I would not so limit the scope of s. 467.1 and have no concern that the definition in the section may be more inclusive than that in UNTOC.

[65]            As noted, in my view, the target of Parliament is criminal organizations.  It is well recognized that criminal organizations may have legitimate, legal purposes and activities, but if a citizen who is part of a group knows that the group also has a main purpose or activity to facilitate or commit serious crime, the citizen knows that the group is within the definition of a criminal organization.  There is no need for the Crown to prove subjectively that an accused shares the criminal purpose or activity, that is, supports it intellectually or participates in it.

[66]            UNTOC is an international convention.  By necessity, its language must be acceptable to nations with different legal traditions and needs.  It is not surprising that a nation would have domestic law that has greater reach than the Convention.  UNTOC itself envisions this in Article 34.3:  "[e]ach state may adopt more strict or severe measures than those provided for by this Convention for preventing and combating organized crime".

[67]            It is apparent that Parliament was alive to its international obligations when the legislation was being considered.  On April 23, 2001, the Minister of Justice stated in the House of Commons:

            Canada is a signatory to the United Nations convention against organized crime which affirms that a group of three persons having the aim of committing serious crimes constitutes a sufficient threat to society to warrant special scrutiny from the criminal justice system.

[68]            I agree with Mackenzie J.A. that ". . . the correct interpretation of the knowledge requirement" is captured by the excerpt he quotes from the suggested jury charge submitted by the Attorney General of British Columbia, which I reproduce:

            You also must be satisfied beyond a reasonable doubt that the accused knows that the characteristics of the group [are] that of a criminal organization.  In other words the accused must have knowledge that he is part of a group, with at least two others, that he knows has as one of its main purposes or main activities the facilitation or commission of one or more serious offences (indictable offences with a maximum punishment of 5 years or more) that, if committed or facilitated, 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.

I observe that the charge has no requirement that the accused share the criminal purpose or main activity of the group.

[69]            My colleague has addressed the baseball team example given by the respondent and the examples of a service-provider and customer given by the trial judge.  He suggests that the group is not the team, but is the infielders only and the service-provider and customer are not part of the criminal organization because they are not functionally connected to its criminal purpose.  I also reject these examples, but for different reasons.

[70]            As to the baseball example, a determination whether there is a group at all or the composition of the group is a question of fact.  As noted by McLachlin C.J.C. and Gonthier J., it is the role of courts to define the reach of legislation in factual situations.  The issue is not one of constitutional definition.  It is one of practical application.  In addition, prima facie being a service-provider or a customer of a group does not make one part of the group, but, again, depending on the actual relationship between the service-provider or customer with the group, whether the person is part of the group is a question of fact for a judge or jury.  Functional connection might be a relevant factor, but the absence of a functional connection does not automatically preclude finding the person to be a part of the group.

The instructing offence

[71]            At trial, Canada and British Columbia argued that the breadth of ss. 467.1 and 467.13 is limited because the person instructing must be a member of the criminal organization, must give the instruction on behalf of the organization and, inferentially, must have authority that derives from the person's position in the criminal organization.  The position was stated succinctly in British Columbia's factum:

            Being at the 'direction of' the criminal organization requires proof that in some way the organization itself (including a person who had authority to act on behalf of the criminal organization), not just an individual member looking after his own interests, was directing the commission of the offence.

[72]            The trial judge addressed this issue at paras. 94-96 of her reasons:

            From this [counsel] reason that such instruction can only be given in circumstances where the person giving the instruction is necessarily a member of the criminal organization.

            Several features and consequences of s. 467.13 prevent me from reaching that conclusion.

…the instructing person's position of authority may be unrelated to the 'group' which is the criminal organization.  The instructing person may be in a position to give an instruction to the recipient for a reason unrelated to the existence of the criminal organization….

[73]            It is clear from the language of s. 467.13 that the person instructing must be a member of the group constituting a criminal organization and must give the instruction knowingly.  The fact that the instructing person's ability to give the instruction may be unrelated to the person's position in the group is of no consequence.

[74]            Although leaders of criminal organizations represent one focus of the legislation, it was recognized that "leaders" may not be designated formally or have formal "authority".  On 23 April 2001 the Minister of Justice stated to the House of Commons:

The third offence deals with leaders in criminal organizations.

. . . .

Leaders of criminal organizations pose a unique threat to society…

Accordingly in the bill we have moved aggressively to identify, target and punish those within criminal organizations, whether or not formally designated as leaders, who knowingly instruct others to commit any offence. . . .

[Emphasis added.]

[75]            The ability to give instructions connotes authority, but there is nothing in the language of s. 467.13 that requires the Crown to prove authority, let alone authority in the criminal organization.

[76]            Mr. Justice Mackenzie states that the Crown alleged that the respondent was the leader of a criminal organization.  That may be the position of the Crown, but the appellant was not so charged.  Count 1 tracks the language of s. 467.13.  Neither the section nor Count 1 asserts leadership.  The respondent is charged as a member of a criminal organization who gave instructions to commit an indictable offence for the benefit of the criminal organization.  The Crown neither alleges nor, in my opinion is obliged to prove, that the appellant was a leader of the criminal organization.

[77]            Criminal organizations work in many different ways, using many different techniques and people to accomplish their ends.  The object of the legislation is to dissuade those who can do so from instructing others to commit crimes for the benefit of, at the direction of, or in association with a criminal organization.  They may or may not be leaders of the criminal organization itself.  The objective is to prevent them from using their ability to give instructions to support the objectives and activities of the criminal organization.

[78]            In my view, the language of s. 467.13 is clear and meets the objective of Parliament.  In addition, considering the purpose of the legislation, the reach of this provision does not appear to me to be overly broad.

[79]            It also was contended that the exposure of an accused to life imprisonment for a violation of s. 467.13 rendered the section overly broad.  In my view, the complete answer to that contention is the fact that the Criminal Code and jurisprudence requires sentences to be fit, to be proportionate.  The sentence is not mandatory.  It does not offend well-established sentencing principles (R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 233 D.L.R. (4th) 415).

[80]            Parliament imposed escalating maximum sentences.  It considered that committing a crime to benefit a criminal organization is more serious than enhancing the ability of the organization to commit crime and that it is very serious for a member of a criminal organization to instruct another to commit an offence for the benefit of, at the direction of, or in association with the organization.  In my view, Parliament was entitled to pass legislation that reflected this judgment.  I do not consider that the chosen means exceed what is necessary to accomplish the legislative objective.  In my view, the Court should defer to Parliament's choice.

[81]            I agree with the observations of Mackenzie J.A. concerning freedom of association and the trial process.

[82]            I would allow the appeal and vacate the order quashing Count 1 of the indictment.

“The Honourable Mr. Justice Chiasson”

I AGREE:

“The Honourable Madam Justice Newbury”

APPENDIX

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.

2001, c. 32, s. 27.

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.

2001, c. 32, s. 27.