Monday, July 16, 2012

Association with criminal groups

Some comments of general interest on criminal organisations or what are sometimes called organised criminal enterprises or organised criminal groups, were made by the Supreme Court of Canada in R v Venneri, 2012 SCC 33 (6 July 2012).

"[40] ... focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of "criminal organization" adopted by Parliament. Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime.

"[41] Courts must not limit the scope of the provision to the stereotypical model of organized crime ― that is, to the highly sophisticated, hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme."

Deciding whether there is a criminal organisation or an organised criminal group is a preliminary step. Liability for an offence depends on what conduct by a defendant is proscribed in relation to the organisation or group. Canada has defined several such offences, which broadly involve committing offences for the benefit of, or at the direction of, or in association with the organisation, or being a member of such an organisation and instructing any person to commit a qualifying offence for the benefit of the organisation. Also included are offences of participation in or contributing to the activity of the organisation with the purpose of enhancing the ability of the organisation to commit a relevant offence.

In New Zealand we have the offence of participation in an organised criminal group, if – again broadly - the defendant knows that his conduct contributes to achieving an objective of the group or to the occurrence of any criminal activity, or is reckless as to that contribution. The defendant need not share the objectives of the group.

It is not necessary that the organisation or group has actually committed any substantive offence, and contributing to achieving the objective of the group may not necessarily involve inciting or any other form of secondary liability.

Venneri highlights the point that associating with the organisation can occur through the defendant's offending and his membership is not required. So where the defendant supplied cocaine to a member of a criminal organisation, knowing that it was involved in drug trafficking, he was operating in association with the organisation, there was a sufficient nexus between the organisation and the defendant's supply of the drug.