The Supreme Court of Canada ordered a new trial yesterday for a Toronto man convicted by a jury of participation in the activities of a criminal organization. The charges stemmed from a police probe into illegal firearms trafficking in Ontario that included a wiretap component. In a 7-1 majority opinion it was held that the trial judge failed to properly explain to the jury that a criminal organization is one that poses an enhanced threat to society characterized by the institutional advantages of structure and continuity.

1. Introduction

On March 31, 2013, based on wiretapped conversations, the investigators believed Ahmed Abdullahi and a group of associates were transporting five illegal firearms from Windsor to Toronto in a rental vehicle. The police initiated pursuit of the vehicle that led them to an apartment complex on Dixon Road in Toronto. The vehicle was located in the parking garage. A bag was in the front passenger seat containing three illegal firearms. The other two firearms were never found. Over the following days, the wiretapped conversations alluded to the police pursuit. One individual referred to himself as Ahmed Abdullahi. His voice was heard on other calls where he was referred as “H” and “HNI”. Intercepts of other individuals referred to “HNIC”. The core issue at trial was identification – whether Mr. Abdullahi was in the rental vehicle on March 31, 2013, and whether he was one of the individuals intercepted on the wire. The prosecution alleged that Mr. Abdullahi was the person referred to as “H”, “HNI” or “HNIC”. The jury convicted. Mr. Abdullahi appealed.

2. Background

The theory of the Crown was that the individuals heard on the wire were members of an “urban street gang” whose “turf” was an area of apartment buildings on Dixon Road. Crown counsel told the jury that the group used “organized strategies to conceal their criminal activities” that reflected “a cohesiveness that is characteristic of urban street gangs” and “a continuous enterprise”. Defence counsel argued that the offence requires a criminal organization to have “some form of structure and a degree of continuity to the group.” An organizational structure was not discussed in the wiretapped conversations and the evidence was consistent with people from the same neighbourhood and cultural background who “formed randomly” for the commission of a single offence. The trial judge gave the jury a skeletal charge on the legal definition of a criminal organization based on the text of s. 467.1(1) of the Criminal Code. A criminal organization means a group comprised of three or more persons that has the commission of a serious offence as one of its main purposes and “does not include a group […] that forms randomly for the immediate commission of a single offence.” The charge on the elements of the definition became the pivotal issue on the appeals.

3. Ontario Court of Appeal

In a 2-1 ruling the Ontario Court of Appeal dismissed the appeal. (here) Writing for the majority, Justice D.M. Brown held that the existence of a criminal organization must be assessed on a flexible basis and although the group must have some form of structure and degree of continuity, a minimal amount may be sufficient to satisfy the definition. The majority concluded, based on three circumstances assessed in the context of the trial as a whole, that the judge’s instructions did not constitute an error of law. First, an expert called by the Crown on “urban street gangs” testified that “H”, “HNI” and “HNIC” referred to the appellant as the “head” of the gang’s hierarchy. Second, the closing arguments by both counsel indicated that a criminal organization required structure (or cohesiveness) and continuity. Third, defence counsel did not object to the judge’s instructions.

In dissent, Justice David Paciocco concluded that, although the existence of a criminal organization is assessed flexibly and a low level of organization may suffice, the group must nonetheless have structure and continuity. The three circumstances assessed by the majority based on the “trial as a whole” did not make up for the judge’s failure to instruct the jury on these key elements developed by the Supreme Court of Canada in the landmark ruling in R. v. Venneri. (here) The requirements of “structure and continuity” are inherent in the concept of “organization” and are essential to distinguish criminal organization offences from conspiracies and other crimes based on party liability. Defence counsel’s failure to object to the charge indicated nothing about the overall accuracy of the charge, the fairness of it or the seriousness of the non-direction. “The appellant was entitled to a properly charged jury and he did not get one,” he said.

4. Supreme Court of Canada

In the majority opinion reversing the Ontario Court of Appeal and ordering a new trial Justice Malcolm Rowe reiterated the principles underlying the “functional approach” when jury instructions are reviewed on appeal for legal error. (here) It is trite that a jury charge must be considered in the context of “the trial as a whole”. It is the substance of the charge that matters, not adherence to a prescribed formula or particular sequence. The overriding question is this: Whether the jury understood or was “properly equipped” with the law to apply to the evidence. The two terms used in the jurisprudence to describe errors in jury instructions that render a jury improperly equipped are “misdirection” and “non-direction”. The concept of misdirection “is better understood in terms of whether the instructions would have equipped the jury with an accurate understanding of the law to decide the case.” The concept of non-direction “is better understood in terms of whether the instructions would have equipped the jury with a sufficient understanding of the law to decide the case.”

This case, then, is one of non-direction. To put the issue in its simplest terms – the jury was not “properly equipped” with the law because the trial judge failed to give a Venneri direction. The jury was not directed by the trial judge on the requirement that a criminal organization must have structure and continuity to fulfill the definition. Although the majority’s development of the functional approach to appellate review of jury instructions merits further discussion, I will focus the balance of this post on that part of the opinion dealing with the distinguishing qualities of a criminal organization. Appellate authorities on the characteristics of criminal organizations are rare. The opinion in Abdullahi is the most important development in the Supreme Court of Canada since the ruling in Venneri over ten years ago.

In Venneri, the Supreme Court of Canada interpreted Parliament’s direction in s. 467.1(1) of the Code that a criminal organization must be “organized” as requiring the group to have “some form of structure and degree of continuity” before the “exceptional regime” of the organized crime provisions of the Code are engaged. Justice Rowe emphasized, following Venneri, that the purpose of the criminal organization provisions is to “identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity.” Structured and continuous criminal enterprises offer advantages to their members by “consolidating and retaining knowledge; sharing customers and resources; developing specializations; dividing labour; fostering trust and loyalty; and developing reputations in the community, including for violence.” These advantages also enable criminal organizations to elude law enforcement more effectively.

Parliament has also enacted heightened investigative, procedural and penal consequences where a criminal organization is involved in an offence. These include enhanced availability of wiretap authorizations and other warrants, and a reverse onus provision on bail applications. On a sentence hearing, involvement of a criminal organization is an aggravating factor and may ultimately affect parole eligibility. Sentences for certain criminal organization offences must be served consecutively. Murder is elevated to first degree where a death is caused for the benefit of, at the direction of, or in association with a criminal organization. The enhanced threat to society posed by organized crime underscores why the regime is considered exceptional. As Justice Morris Fish stated in Venneri, “Stripped of the features of continuity and structure, ‘organized crime’ simply becomes all serious crime committed by a group of three or more persons for a material benefit.” Justice Rowe concluded in Abdullahi that the Crown and the majority of the Ontario Court of Appeal erred by conflating the requirements of structure and continuity with the flexibility needed to conduct the factual assessment of the circumstances in each case.” Flexibility in the forms of structure and degree of continuity does not mean that structure and continuity are optional.

The majority opinion also emphasized that “careful consideration of a group’s structure and continuity is needed to guard against improper reasoning in identifying a criminal organization.” It is critical to avoid the risk of identifying a group as a criminal organization based on shared characteristics such as ethnicity, cultural background, neighbourhood, religion, language, or dialect. “While such characteristics may indicate a common social or cultural identity among persons who commit offences,” Justice Rowe said, “they are irrelevant in identifying the existence of a criminal organization.”

5. Conclusion

How, then, does Abdullahi advance the law on the elements of “structure and continuity” as developed in Venneri? The most important point is the emphasis on forbidden reasoning and the recognition of social and cultural diversity in a free and democratic society. The rulings in both Venneri and Abdullahi recognize that criminal organizations are opportunistic and adaptive. They vary depending on which business model is successful. They take many forms and do not fit stereotypical models of organized crime. Thus, as said in Venneri, the definition of a criminal organization must be applied flexibly. But, as said in Abdullahi, flexibility must not become an invitation for irrelevant considerations or improper reasoning. “The risk of improper reasoning is especially acute where an accused is a member of a marginalized community, underrepresented among police, lawyers, jurors, or the judiciary, and whose characteristics and practices may well be less familiar and possibly the subject of biases, prejudices, or stereotypes among those tasked with enforcing the law and passing judgment,” said Justice Rowe. The focus must always remain fixed on whether the group in question possesses the distinguishing characteristics of a criminal organization – structure and continuity.