section 467.11(2)

INTRODUCTION AND BRIEF DESCRIPTION

The prosecutor does not need to prove certain elements to secure a conviction for an offence related to a criminal organization.

SECTION WORDING

467.11(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.

EXPLANATION

Section 467.11(2) of the Criminal Code of Canada is a provision that applies to the prosecution of offences related to participation in a criminal organization. Specifically, this provision states that in such a prosecution, it is not necessary for the prosecutor to prove certain elements that might normally be required in other criminal cases. The provision lists four elements that the prosecutor is not required to prove. Firstly, the prosecutor is not required to prove that the criminal organization actually committed or facilitated an indictable offence. This is because the offence being prosecuted is the act of participating in a criminal organization, rather than any specific criminal act committed by that organization. Secondly, the prosecutor is not required to prove that the accused's participation or contribution actually enhanced the ability of the criminal organization to commit or facilitate any indictable offence. Again, this is because the offence being prosecuted is the act of participating in a criminal organization, rather than any specific actions taken by the accused. Thirdly, the prosecutor is not required to prove that the accused knew the specific nature of any indictable offence that may have been committed or facilitated by the criminal organization. This is because the offence being prosecuted is the act of participating in a criminal organization, rather than any specific knowledge the accused may have had about the organization's activities. Finally, the prosecutor is not required to prove that the accused knew the identity of any of the persons who constitute the criminal organization. This is again because the offence being prosecuted is the act of participating in a criminal organization, rather than any specific knowledge the accused may have had about who was involved in the organization. Overall, the purpose of Section 467.11(2) is to make it easier for prosecutors to successfully prosecute individuals for participating in criminal organizations. By removing certain evidentiary requirements, the provision allows prosecutors to focus on the more fundamental issue of whether an individual was indeed involved in a criminal organization, regardless of their knowledge or actions related to specific criminal acts committed by that organization.

COMMENTARY

Section 467.11(2) of the Criminal Code of Canada grants significant powers to the prosecutors who seek to prosecute criminal organizations in the country. Essentially, the section creates a presumption that a person is guilty of an offence if they are found to be a member of a criminal organization, regardless of whether or not they have been personally involved in any illegal activities themselves. This section essentially states that if someone is a member of a criminal organization, they can be held accountable for any illegal activities committed by that organization, even if they were not directly involved. Additionally, Section 467.11(2) does not require prosecutors to prove that the person being charged knew about the illegal activities committed by the organization or knew who was involved in those activities. This provision of the Criminal Code of Canada has been controversial since it was introduced. Critics of the section argue that it violates the principles of fundamental justice, by essentially removing the requirement for prosecutors to prove guilt beyond a reasonable doubt. They argue that the section unfairly shifts the burden of proof onto the accused, forcing them to prove their innocence rather than forcing the prosecution to prove their guilt. Furthermore, some have argued that the section could be used to unjustly target certain groups, such as Indigenous and immigrant communities, which have historically been over-represented in criminal organizations in Canada. However, supporters of Section 467.11(2) argue that it is an important tool in the fight against organized crime. They claim that it is often difficult to prove the involvement of specific individuals in organized criminal activities, as these individuals are often careful to avoid direct involvement in illegal activities themselves. By creating a presumption of guilt for those who are members of criminal organizations, prosecutors are able to take action against these groups even if it is not possible to prove the involvement of individual members. Supporters of the section also argue that it is an important deterrent, as it sends a signal to potential members of criminal organizations that they will be held accountable for any illegal activities committed by the group. Ultimately, the debate over Section 467.11(2) comes down to a question of balancing public safety and individual rights. While it is certainly important to take action against organized crime, we must also ensure that the legal system remains fair and just. While this section has the potential to be abused, it can also be an important tool in prosecuting those who seek to profit from criminal activities. As such, it is essential that any use of this section is carefully scrutinized and monitored, to prevent it from being used inappropriately or unfairly.

STRATEGY

Section 467.11(2) of the Criminal Code of Canada provides significant power to prosecutors in prosecuting individuals for offences related to organized crime. This section relieves the prosecutor from proving that the accused had any knowledge of the specific nature of the indictable offence committed or facilitated by the criminal organization. Furthermore, it is not necessary for the prosecutor to prove that the accused's participation enhanced the ability of the criminal organization to commit the offence. The prosecutor is also not required to demonstrate that the accused had knowledge of the identity of the members of the criminal organization. These are significant provisions that give the prosecution a distinct advantage in prosecuting such cases. The primary strategic consideration for defence counsel in dealing with Section 467.11(2) is to acknowledge its immense power and the fact that the burden of proof has shifted heavily in favour of the prosecution. This requires defence counsel to be more diligent in their approach to such cases, particularly when it comes to collecting evidence and crafting their defence strategy. One strategy that could be employed by defence counsel is to challenge the constitutionality of Section 467.11(2) on the grounds that it violates an accused's fundamental right to a fair trial. While such challenges are difficult to mount, they can be successful. In R. v. Khawaja, the Supreme Court of Canada struck down the government's terrorism financing law, in part, for violating an accused's right to know what they're charged with. Based on this precedent, a similar argument could be made for Section 467.11(2). Another strategy that could be employed is to challenge the evidence brought forth by the prosecution. This could involve challenging the reliability or credibility of the prosecution's witnesses, or arguing that the evidence being used against the accused was obtained illegally. A further strategy that can be employed is to negotiate with the prosecution and enter into a plea bargain. Given the high probability of being convicted, it might be in the best interest of the accused to negotiate a deal with the prosecution, which can lead to a reduced sentence. It may be possible to obtain a more favourable outcome through a plea bargain. Lastly, the accused's defence counsel can also request an adjournment of the trial to allow for more time to collect evidence and prepare their defence. The defence could take additional time to investigate the case, interview witnesses, and obtain expert testimony. Section 467.11(2) of the Criminal Code of Canada provides an advantage to the prosecution in prosecuting individuals for offences related to organized crime. Defence counsel must be more proactive in confronting this provision and create adequate defence strategies. Challenging the constitutionality of the section, negotiating a plea deal, challenging the evidence brought forth by the prosecution, and requesting an adjournment can be effective strategies to address the provisions under this provision.