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A comparison of the Russian and Canadian experiences with defining “organized crime”

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Abstract

The dangers stemming from organized crime have been widely acknowledged in the academic literature, government reports, as well as in popular discourse. This article focuses on the legislative efforts to define “organized crime” undertaken in Russia and Canada. Neither country has yet devised a satisfactory legislative definition of the varied phenomenon that is organized crime. Definitions in both jurisdictions are problematic due to their sweeping scope and insufficient delineation of a zone of risk for the accused as well as law enforcement officials. However, striking a proper balance between security concerns and human and civil rights in both countries will be problematic due to constant political pressure to “get tough on crime” as well as due to the amorphous nature of the phenomenon of organized crime.

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Notes

  1. See V. Mitsilegas, “From National to Global, from Empirical to Legal: The Ambivalent Concept of Transnational Organized Crime” in M.E. Beare, ed., Critical Reflections on Transnational Organized Crime, Money Laundering and Corruption (Toronto, Buffalo, London: University of Toronto Press, 2003).

  2. J.O. Finckenauer, “The Russian ‘Mafia’” (2004) July/August Society at 63.

  3. For instance see Bulletin N.4 from April 25, 2006, involving a cassation appeal to the Supreme Court of Russia from Vladimir district court pertaining to a Russian criminal entity involved in the trafficking of women for prostitution from Russia to Thailand and the United Arab Emirates. Also see A.A. Mukhin, Rossiiskaya Organizovannaya Prestupnost I Vlast. Istoriya Vzaimotnoshenii (Tsentr Politicheskoi Informatsii: Moscow, 2003) at 35 [in Russian].

  4. See D. DeVille, “Practitioner’s Comment: Waving a Red Flag in Court: Obtaining and Using Witness Testimony from the Former Soviet Union” (2003) 39 Stanford Journal of International Law at 100, who makes a similar argument regarding the necessity to potentially take testimony in Russia, as Russian organized crime cases are increasingly prosecuted in US courts. Canada and Russia have signed a Mutual Legal Assistance in Criminal Matters Treaty on October 20, 1997, which provides for cooperation in the investigation and prosecution of crime between police and prosecutors in Canada and Russia.

  5. V.M. Sergeev, “Social Change, Legislation and Crime in the USSR and Russia” (1998) 36 Russian Politics and Law at 19–20.

  6. P. Rawlinson, “Russian Organized Crime: A Brief History” in P. Williams, ed., Russian Organized Crime: The New Threat? (Portland, OR: Frank Cass, 1997) 28 at 35; D. DeVille, “Combating Russian Organized Crime: Russia’s Fledgling Jury System on Trial” (1999) 32 The George Washington Journal of International Law and Economics 73 at 85. Also see K.V. Pitul’ko ed., et al, Organizovannaya Prestupnost’. Zakonodatel’nye, Ugolovno-Protsessual’nye, Kriminalisticheskie Aspekty. Kurs Lektsii (Piter: Saint-Petersburg, 2002) at 14 [in Russian].

  7. V.M. Sergeev, supra note 5 at 19–20.

  8. L. Shelley, “Contemporary Russian Organized Crime: Embedded in Russian Society” in C. Fijnaut & L. Paoli, eds., Organized Crime in Europe. Concepts, Patterns and Control Policies in the European Union and Beyond (Dordrecht, the Netherlands: Springer, 2004) at 564.

  9. D. DeVille, supra note 6 at 85.

  10. V. Sokolov, “From Guns to Briefcases. The Evolution of Russian Organized Crime” (2004) (Spring) World Policy Journal at 70.

  11. L. Shelley, supra note 8 at 565. Also see A.A. Mukhin, supra note 3 at 31.

  12. V.M. Sergeev, supra note 5 at 20.

  13. L. Shelley, “Can Russia Fight Organized Crime and Corruption?” (2002) XXIII Tocqueville Review 37 at 46.

  14. Ibid.

  15. Ibid at 47.

  16. L. Shelley, supra note 8 at 566.

  17. The Russian Ministry of Internal Affairs (MVD) and the Federal Security Service (FSB) have resisted academic scrutiny of their practices, deeming this to be akin to “airing dirty laundry”—see T. Kruessmann, “Strategiya Bor’by s Organizovannoi Prestupnost’u: Rossiya” (2003), available at http://www.crime.vl.ru [in Russian] (visited May 2006).

  18. The State Duma adopted the first post-Soviet Criminal Code on May 24, 1996. The Federation Council approved the Code on June 5, 1996, and the President signed it on June 13, 1996. The Code officially entered into force on January 1, 1997.

  19. K.V. Pitul’ko ed., supra note 6 at 14 and 50. Despite the absence of provisions criminalizing the organization of or participation in organized criminal entities, the Code reserved severe penalties for those convicted of committing crimes in groups—see P. Solomon, Soviet Criminal Justice Under Stalin (Cambridge: Cambridge University Press, 1996) at 443–444.

  20. K.V. Pitul’ko, as Ibid at 16.

  21. D.M. Hughes, “Trafficking for Sexual Exploitation: The Case of the Russian Federation,” Report prepared for the International Organization for Migration, June 2002.

  22. L.A. Gordon, “Socioeconomic Human Rights. Content, Features, and Significance for Russia” (1998) 36 Russian Politics and Law 30.

  23. B. Black, R. Kraakman & A. Tarassova, “Russian Privatization and Corporate Governance: What Went Wrong?” (2000) 52 Stanford Law Review 1731 at 1735.

  24. See A.A. Mukhin, supra note 3 at 36–37 and 40, stating that, beginning in 1995, many organized crime figures entered the legitimate economy and have tried to place their representatives in Russia’s political institutions.

  25. N.M. Golovanov, V.E. Perekislov & V.A. Fadeev, Tenevaya Ekonomika I Legalizatsiya Prestupnyh Dohodov (Saint Petersburg: Piter, 2003) at 161.

  26. J.O. Finckenauer, supra note 2 at 62–63.

  27. C. Humphrey, The Unmaking of Soviet Life. Everyday Economies after Socialism (Ithaca: Cornell University Press, 2002) at 62.

  28. See the federal law entitled “O Vnesenii Izmenenii I Dopolnenii v Ugolovnyi Kodeks RSFSR i Ugolovno-Protsessual’nyi Kodeks RSFSR” on July 1, 1994. Also see K.V. Pitul’ko ed., supra note 6 at 15 and 47.

  29. See E. Solomonov, “U.S.–Russian Mutual Legal Assistance Treaty: Is There a Way to Control Russian Organized Crime?” (1999) 23 Fordham International Law Journal at 188 for a discussion of how the Russian public associates organized crime with migrants from Chechnya and other parts of the Caucasus.

  30. See P.D. DiPaola, “The Criminal Time Bomb: An Examination of the Effects of the Russian Mafiya on the Newly Independent States of the Former Soviet Union” (1996) 4 Global Legal Studies Journal 145 at 174 for a discussion of how the infringement of individual civil liberties under Operation Signal and The 1994 Decree contributed to the rise of authoritarianism.

  31. See P.D. DiPaola, as ibid at 174; and E. Solomonov, supra note 29 at 188–189 for further discussion of the details of Operation Signal.

  32. S. Handelman, Comrade Criminal. Russia’s New Mafiya (New Haven and London: Yale University Press, 1995) at 290.

  33. See Presidential Decree N.1226 from June 14, 1994. Article 5 of the 1995 federal law entitled “On Confinement Under Guard of Persons Suspected or Accused of Committing Crimes,” SZRF (1995) no.29, item 2759, subsequently limited the period of detention from 30 days to no more than 72 hours.

  34. See S.P. Boylan, “Organized Crime and Corruption in Russia: Implications for U.S. and International Law” (1996) 19 Fordham International Law Journal 1999 at 2007 for a critique of the decree.

  35. Article 1 stated, in part:

    [w]ritten undertaking not to leave the area, a personal guarantee or guarantee provided by a public organization, or bail may not be applied as restrictive measures against those suspected or accused of the aforementioned crimes, they may be detained for up to thirty days.

  36. T. Kruessmann, supra note 17.

  37. A. Feofilantov & A. Grishin, “Prezident Otmenil Nekonstitutsionnue Ukazy” in Segodna on June 18, 1997 [in Russian]. Also see K.V. Pitul’ko ed., supra note 6 at 48–49. Article 22(2) of the Russian Constitution states that “[b]efore a judicial decision a person may not be subjected to detention for a period of more than 48 hours.” However, s.108.7 of the Criminal Procedure Code, in force as of July 1, 2002, permits an investigator to request that a judge authorize a further 72 hours of detention over and above the usual 48 hours.

  38. T. Kruessmann, supra note 17.

  39. See K.V. Pitul’ko ed., supra note 6 at 49–50.

  40. L. Shelley, supra note 13 at 42.

  41. See L.N. Boitsov & I. Ya. Gontar’ “Ugolovno-Pravovaya Bor’ba s Organizovannoi Prestupnost’u: Illuzii, Real’nost I Vozmozhnaya Al’ternativa” (2000) 11 Gosudarstvo I Pravo at 35 [in Russian].

  42. V.V. Luneev, Prestupnost’ XX Veka. Mirovye, Regional’nye I Rossiiskie Tendetsii (Moscow: Norma, 1997) in chapter 9, available in English at http://www.american.edu/traccc/resources/publications/luneev03.html (visited June 2006).

  43. Another translation for the term “cohesive” is “united.”

  44. Translation is mine.

  45. See E. Solomonov, supra note 29; L. Gauhman & S. Maksimov, “Otvetstvennost’ za Organizatsiu Prestupnogo Soobschestva” (1997) 2(748) Zakonnost’ 12 [in Russian]; and L.N. Boitsov & I. Ya. Gontar’, supra note 41.

  46. See V. Bykov, “Ob’ektivnaya Storona Organizatsii Prestupnogo Soobschestva” (2002) 10(816) Zakonnost’ [in Russian] at 11–12 stating that the concept of a “criminal organization” in s.35(4) subsumes the concept of an “organized group” described in s.35(3). Hence, a criminal organization possesses all the characteristics of an organized group in addition to other particular characteristics.

  47. Contrast this with the specific reference in s.35(4) to the creation of a criminal organization for the commission of grave or especially grave offences. This creates a lacunae in s.35(4) as it fails to account for the scenario in which a “cohesive organized group”—i.e, a criminal organization—has been created for the commission of crimes of small or average gravity.

  48. See L.N. Boitsov & I. Ya. Gontar,’ supra note 41;” N.G. Ivanov, “Gruppovaya Prestupnost’: Soderzhanie I Voprosy Zakonodatel’nogo Regulirovaniya” (1996) 9 Gosudarstvo I Pravo 67 [in Russian]; V.G. Grib, V.D. Larichev & A.I. Fedotov, “Organizovannaya Prestupnost’—Razlichnye Podhody k Eyo Ponimaniu” (2000) 1 Gosudarstvo I Pravo 48 [in Russian]; A. Mordovets, “Prestupnoe Soobschestvo: Utochnenie Uslovii Otvetstvennosti” (2001) 9(803) Zakonnost’ 41 [in Russian]; T. Kruessmann, supra note 17.

  49. The Russian legal system is not based on judge-made law. Nevertheless, the Supreme Court has the authority to issue general guiding instructions relating to substantive law and procedural issues, regardless of whether a relevant “case or controversy” is before it. The texts of these interpretations of the law are published, and cited by the lower courts—see A.P. Ryzhakov, ed., Kommentarii k Postanovleniyam Plenumov Verhovnyh Sudov RF (RSFSR) Po Ugolovnym Delam (Norma: Moskva, 2001). In contrast, only selected judicial opinions are published.

  50. Translation is mine. Guiding instruction N.5, issued on April 25, 1995.

  51. Translation is mine. Guiding instruction N. 1, issued on January 17, 1997. Several factors distinguish a “gang” as described in s.209 of the Code from the “criminal organization” of s.35(4). First, a gang is an “organized group” as opposed to a “criminal organization”, characterized by the presence of arms and created specifically to attack persons or other entities. Furthermore, such attacks may fall under any category of crime, i.e., crimes of small or average gravity, grave and especially grave crimes—see s.209 and P. Agapov, “Banditism I Organizatsiya Prestupnogo Soobschestva (Prestupnoi Organizatsii): Problemy Sootnosheniya” (2002) 4(810) Zakonnost’ [in Russian] at 48.

  52. Guiding instruction N.29 in section 15, issued on December 27, 2002.

  53. The Supreme Court, in its guiding instructions, has emphasized some elements more than others in characterizing organized groups: division of roles; advanced planning of crimes; involvement of two or more persons; stable structure; presence of a leader; common intent to commit one or more crimes; and preparation of technical means for the realization of criminal activities—see Guiding instructions N.3, issued May 4, 1990; N.15, issued December 22, 1992; N.1, issued January 27, 1999; N.6, issued February 10, 2000. All of these factors are characteristic of tightly-knit groups.

  54. See A. Mondohonov, “Ponyatie I Priznaki Organizovannoi Gruppy” (2004) 10(840) Zakonnost’ 7 at 8 [in Russian].

  55. See V.G. Grib, V.D. Larichev & A.I. Fedotov, supra note 48 at 50. The Supreme Court’s guiding instructions are available at http://www.vsrf.ru/vs_docs.php (visited June 2006).

  56. A.I. Chuchaev ed., Postateinyi Kommentarii k Ugolovnomu Kodeksu Rossiiskoi Federatsii (Infra-M and Kontakt: Moscow, 2004) at 93–94 [in Russian].

  57. N.G. Ivanov, supra note 48 at 71.

  58. Translation is mine.

  59. See V. Bykov, “Priznaki Organizovannoi Prestupnoi Gruppy” (1998) 9(767) Zakonnost’ 4 [in Russian]; and V.G. Grib, V.D. Larichev & A.I. Fedotov, supra note 48, for a discussion of intent.

  60. The number of convictions under s.210 even when it is charged concurrently with other offences is quite low. The Prosecutor General of the Russian Federation revealed that, in 2005–2006, only 125 persons had been convicted for organizing a criminal organization—see the speech by Yurii Chaika, Prosecutor General of the Russian Federation, to various law enforcement agencies given on November 21, 2006, available on the Prosecutor General’s web-site, at http://www.genproc.gov.ru/ru/news/news_current_print.shtml?2006/11/5072_print.html [in Russian] (visited November 2006).

  61. See Centre for the Study of Organized Crime (Vladivostok), “Pravovye Osnovy Bor’by s OP” (2001), available at http://www.crime.vl.ru [in Russian] (visited June 2006).

  62. T. Firestone, “Chto Rossiya Dolzhna Delat’s Chtoby Srazhat’sya s Organizovannoi Prestupnost’u (2005), available at http://www.crime.vl.ru [in Russian] (visited June 2006).

  63. Ibid at 51.

  64. A.I. Chuchaev ed., supra note 56 at 479–480.

  65. V.M. Lebedev ed., Kommentarii k Ugolovnomu Kodeksu Rossiiskoi Federatsii (Moskva: Urait, 2001) at 422 [in Russian].

  66. See R.T. Naylor, “Predators, Parasites, or Free-Market Pioneers: Reflections on the Nature and Analysis of Profit-Driven Crime” in M.E. Beare, ed., Critical Reflections on Transnational Organized Crime, Money Laundering and Corruption (Toronto, Buffalo, London: University of Toronto Press, 2003) at 41.

  67. The Russian Federation is divided into 89 federal subjects, with one federal court located in each subject.

  68. Of the 89 federal courts, only 30 have their own websites. Of those 30, only some refer to city courts, which for the most part do not have their own websites either. This situation may change, albeit not in the near future, as 220 new websites for the courts of general jurisdiction are planned under a 48 billion-ruble federal strategic program designed to reform the Russian court system and make it more transparent and accessible. The program is set to run from 2007 to 2011—see Federal’naya Tselevaya Programma “Razvitie Sudebnoi Sistemy Rossii” na 2007–2011 gody, in Rossiiskaya Gazeta on November 1, 2006 [in Russian].

  69. See http://www.supcourt.ru/courts_index.php (visited September 2006) Some notable exceptions include Archangelsk oblastnoi court, which posted full texts of selected trial decisions starting from late 2004—see http://www.arhcourt.ru/?crm-one; and the Ivanovskii oblastnoi court, which posted full texts of 4 trial decisions rendered between 2004 and 2005—see http://www.oblsud.ivanovo.ru/topic6.htm; [in Russian] (visited September 2006).

  70. See Bulletin N.10 from October 28, 2005.

  71. See Bulletin N.11 from November 25, 2004.

  72. Paradoxically, the courts on occasion treated isolated predatory crimes—such as one instance of armed robbery (see Bulletin N.4 from April 21, 2004) or one instance of kidnapping and extortion (see Bulletin N.8 from August 1, 1997)—as falling under the category of organized crime. The categorization of such single-instance offences as “organized crime” seems questionable. At most, they were crimes committed by a group of persons by prior conspiracy, as there was no indication that their activity was continuous and entrepreneurial—the sine qua non of organized criminal conduct.

  73. L. Shelley, supra note 13 at 37.

  74. V. Sokolov, supra note 10 at 69.

  75. See Bulletins N.4 from April 25, 2006; N.10 from October 28, 2005; N.4 from April 21, 2004; N.9 from September 24, 2003; N.9 from September 27, 2001; N. 4 from April 18, 2001.

  76. See, for example, the court of general jurisdiction Bulletin summarizing the Perm oblastnoi court’s cassation review practice for the first 6 months of 2005, which referred to organized groups as being characterized by stability, presence of a leader, common plan of action, division of responsibilities between group members, length of existence, commission of more than one criminal offence, and lengthy preparation for the commission of even a single criminal offence—see http://www.oblsud.permregion.ru/sudpraktika/praktika_ug.htm (visited September 2006). The Russian Supreme Court has highlighted similar criteria with regard to organized groups, as noted in a decision of the Stavropol kraevoi court rendered on May 22, 2002—see http://www.femida.e-burg.ru/show_doc.php?id=3528 [in Russian] (visited September 2006).

  77. See Bulletins N. 9, from September 24, 2003; N.6 from June 26, 2003; N.9 from September 27, 2001.

  78. V. Sokolov, supra note 10 at 69.

  79. Another possible consideration may be the courts’ desire to circumscribe the wide legislative scope of anti-organized crime provisions.

  80. L. Shelley, supra note 8 at 569.

  81. Ibid. at 579.

  82. See Bulletins N.9 from September 27, 2001; N.6 from June 26, 2003.

  83. V. Luneev, “Prestupnost’ v Rosii: Tendentsii, Effectivnost Bor’by, Prognoz” (2003) available at http://www.american.edu/traccc/resources/publications/almanac/luneev_effectiveness.pdf [in Russian] (visited June 2006) at 100–102.

  84. See the speech by Yurii Chaika, Prosecutor General of the Russian Federation, to various law enforcement agencies given on November 21, 2006, available on the Prosecutor General’s website, at http://www.genproc.gov.ru/ru/news/news_current_print.shtml?2006/11/5072_print.html [in Russian] (visited November, 2006).

  85. See L.C. Earl, “Loosening Organized Crime’s Stranglehold on the Russian Economy: Current Efforts and Suggested Strategies” (1999) 31 Law and Policy in International Business at 102.

  86. Mikhail Krasnov, “The Rule of Law” in Michael McFaul et al., eds., Between Dictatorship and Democracy (Carnegie Endowment for International Peace: Washington D.C., 2004) at 209–212.

  87. Guy Falconbridge, “PACE, Ustinov Face Off on Yukos” in Moscow Times on January 27, 2005 at Page 1. See P. Baker & S. Glasser, Kremlin Rising. Vladimir Putin’s Russia and the End of Revolution (New York: Lisa Drew Book/Scribner, 2005) at 335–353 for a description of Khodorkovsky’s trial.

  88. K.V. Pitul’ko ed., supra note 6 at 46.

  89. V. Luneev, supra note 83 at 101. Then Prosecutor General of the Russian Federation, Vladimir Ustinov, in a 2006 address to senior law enforcement officials, stated that organized crime had infiltrated both state and law enforcement agencies and that major organized crime figures had succeeded in evading prosecution—see M. Chizhikov, “Genprokuror RF Vladimir Ustinov: Orgprestupnost’—natsional’naya ugroza” on May 16, 2006, in Komsomolskaya Pravda. Ironically, the Prosecutor General’s office, which Ustinov headed since the year 2000, is responsible, in part, for combating organized crime. Ustinov was subsequently dismissed from his position on June 2, 2006. Some commentators interpreted his dismissal as an attempt by Putin to balance off the siloviki and liberal factions of his administration ahead of the 2008 presidential election—see S. Saradzhyan, “Firing Deals a Powerful Blow to Siloviki Clan” in Moscow Times on June 5, 2006 at Page 5. Others, however, believed that the dismissal was linked to Ustinov’s “excessive independence,” as demonstrated in his speech referred to above. His comments regarding the prevalence of organized crime conflicted with Putin’s efforts to create a positive image of Russia internationally—see N. Abdullaev & S. Saradzhyan, “Ustinov Fired as Kremlin Looks to 2008” in Moscow Times on June 5, 2006 at Page 1.

  90. Many scholars maintain that the solution lies, in part, in comprehensive legislative and non-legislative measures outside the criminal law context—see Vladivostokskii Tsentr Issledovaniya Organizovannoi Prestupnosti, “Organizovannaya Prestupnost’ I Sovershenstvovanie Zakonodatel’stva” (2005) (comments by A. Dolgova), available at http://www.crime.vl.ru [in Russian] (visited May 2006).

  91. P. Baker & S. Glasser, supra note 87 at 294 stating that “[f]or years, the Kremlin had hosted meetings each Friday with the top television directors… But over time, the agenda changed to politics… At each session, a written agenda was handed out, with the week’s expected news topics and recommended approaches for the television networks.” Also see M. Lipman, “Svoboda Pressy v Usloviyah Upravlyaemoi Demokratii” (2006) 2(8) Brifing Moskovskogo Tsentra Karnegi, available at http://www.carnegie.ru/en/pubs/briefings/brif1.pdf [in Russian] (visited June 2006).

  92. See Moskovskii Tsentr Karnegi, “Grazhdanskoe Obschestvo: Ekonomicheskii I Politicheskii Podhody” (2005) 2 Rabochie Materialy at 22–25, available at http://www.carnegie.ru/en/pubs/workpapers/WP-2005-02-www.pdf [in Russian] (visited June 2006).

  93. T. Kruessmann, supra note 17.

  94. L. Shelley, supra note 13 at 52.

  95. See Article 2(a).

  96. Adopted by General Assembly resolution 55/25; UN Doc. A/55/383 (2000). The Russian Federation signed this Convention on December 12, 2000, and ratified it on March 24, 2004—see Associated Press, “State Duma Ratifies UN Convention” in Moscow Times on March 25, 2004.

  97. See Article 5(1).

  98. It is notable that early Canadian views of organized crime were influenced to a large degree by the U.S. McClellan Commission of 1963 and the 1967 report to the U.S. Congress—see M. Beare, Criminal Conspiracies: Organized Crime in Canada (Toronto: Nelson Canada, 1996) at 140.

  99. For a good description of Canada’s legislative efforts directed against organized crime undertaken prior to the passage of Bill C-95, see M. Beare, as ibid at 155–176.

  100. Don Stuart, “Time to Recodify Criminal Law and Rise Above Law and Order Expediency: Lessons from the Manitoba Warriors Prosecution” (2000) 28 Manitoba Law Journal 89 at para.15 (on QuickLaw).

  101. Don Stuart, as ibid at para.13.

  102. Michael A. Moon, “Outlawing the Outlaws: Importing RICO Notion of ‘Criminal Enterprise’ into Canada to Combat Organized Crime” (1999) 24 Queen’s Law Journal 451 at 456.

  103. Ibid at 457.

  104. The first reading of Bill C-95 occurred on April 17, 1997. On April 21, the Bill was read a second time, debated by Parliament, received third reading and was passed without amendment. Bill C-95 received Royal Assent on April 25, 1997, and was proclaimed into force on May 2, 1997.

  105. Don Stuart, supra note 100 at para.15 (on QuickLaw).

  106. C-24 House of Commons Debates on April 23, 2001, at 3198 (Reak Menard). Also see C-24 Minutes of Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 16 on November 28, 2001, at 7 (Guy Ouellette).

  107. Overbreadth analysis considers the means chosen by the state in relation to its purpose. The examination centres on the question of whether the means chosen by the state are necessary to achieve its objective—see R v. Heywood (1994), 34 C.R. (4th) (S.C.C.).

  108. In the Prostitution Reference (1990), 77 C.R. (3d) (S.C.C.) at para.26, Mr. Justice Lamer stated that when it comes to vagueness,

    [t]he rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as 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 legislated standards.

    Lamer J. stated that when determining whether a provision is void for vagueness, the question that needs to be answered is “whether the impugned sections…can be or have been given sensible meaning by the Courts”—Prostitution Reference, as ibid at para 30.

  109. Michael A. Moon, supra note 102 at 454.

  110. Ibid at 494.

  111. Don Stuart, “Politically Expedient but Potentially Unjust Criminal Legislation Against Gangs” (1997) in Alan D. Gold Collection of Criminal Law Articles on QuickLaw at para.12 (on QuickLaw).

  112. Michael A. Moon, supra note 102 at 467–468.

  113. C-24 Standing Committee on May 8, 2001, at 0850 (Hon. Anne McLellan). The complexities of prosecuting organized crime offences under the legislative provisions introduced by Bill C-95 were outlined in R v. G.B. [2002] O.J. No.4771, where Macdonald J. of the Ontario Superior Court of Justice noted that,

    [t]he element of knowledge [s.467.1(1) required the accused knowing that any or all of the members of the organization engage or have engaged in committing a series of indictable offences] found in the criminal organization count probably adds to the complexity of these prosecutions. That is because what is alleged against these four accused persons is knowledge that any or all of them, or knowledge that one or more of 22 others, engage in or have engaged in the commission of a series of indictable offences of the four types mentioned. I therefore conclude that the criminal organization count also results in its own elements of complexity in the case of the four applicants charged with this offence (see para.34).

  114. R v. Carrier [2001] J.Q. no.224 (Que S.C.).

  115. See para.30, 39, 43, 62, 71, 73.

  116. R v. Beauchamp [2002] J.Q. no.4593 (Que. S.C.) at para.11, 13, 14, 16, 19, 22.

  117. See R v. Pangman [2000] M.J. No.125 and R v. Pangman [2001] M.J. No.217, better known as the Manitoba Warriors case.

  118. R v. Leclerc [2002] C.C.S. No.6575.

  119. R. v. Stadnick [2004] Q.J. No.7163.

  120. Convention Against Transnational Organized Crime, annexed to G.A. Res. 55/25, U.N. Doc. A/55/383 (2000).

  121. The Palermo Convention came into force on September 29, 2003. Bill C-24 was proclaimed on January 7, 2002, and Canada ratified the Palermo Convention on May 13, 2002.

  122. See Alex Roslin, “Crooked Blue Line” (2001) 34 This Magazine 16–21.

  123. Don Stuart, supra note 100 at para.34 (on QuickLaw).

  124. Hansard, on April 23, 2001, at 1740.

  125. Senator Andreychuk was one of the few Senators that expressed concerns over the proposed amendments—see Senate Debates on December 5, 2001, at 1877.

  126. See Mark K. Levitz & Robert Prior, “Criminal Organization Legislation: Canada’s Response” (2003) 61 The Advocate 375 at 377.

  127. Hansard on April 23, 2001, at 2954–2955.

  128. It has been argued that the definition of “organized criminal group” contained in the Palermo Convention “mark[ed] the first general consensus ever to be reached by the international community on such a definition”—for example, see Respondent’s Factum in R v. Lindsay, supra at 10. However, it is worth pointing out that the international agreement over the definition of “organized criminal group” in the Palermo Convention is more apparent than real. Defining organized crime in the Convention was a secondary issue—see Alexandra V. Orlova & James W. Moore, “‘Umbrellas’ or ‘Building Blocks?’ Defining International Terrorism and Transnational Organized Crime in International Law” (2005) 27 Houston Journal of International Law at 285. Rather, the primary concentration was on working out the “co-operation provisions” of the Convention (i.e., extradition, mutual legal assistance and police co-operation). In other words, the intent was not to draft a Convention that provided a comprehensive definition of organized crime, but rather to negotiate a Convention that served as a “tool box” to enable the functioning of various “co-operation provisions.” Thus, the definition of an organized criminal group contained in Article 2, along with other provisions of the Convention, serves the utilitarian purpose of accommodating the provisions dealing with extradition, mutual legal assistance and police co-operation.

  129. See Don Stuart, supra note 100 at para.39 (on QuickLaw).

  130. See Mark K. Levitz & Robert Prior, supra note 126 at 379.

  131. Don Stuart, supra note 100 at para.36 (on QuickLaw).

  132. See Canadian Bar Association (National Criminal Justice Section), “Submission on Bill C-24 Criminal Code Amendments (Organized Crime and Law Enforcement),” dated November 2001 at 28.

  133. R v. Lindsay [2004] O.J. No.845; 182 C.C.C. (3d) 301.

  134. See R v. Lindsay [2005] O.J. No.2870.

  135. R v. Lindsay [2004] O.J. No.845; 182 C.C.C. (3d) 301.

  136. See para.11.

  137. See para.12.

  138. See para.45.

  139. See para.27.

  140. See para.48.

  141. See para.47.

  142. R v. Leclerc [2002] C.C.S. No.6575.

  143. See R v. Leclerc [2002], as ibid at para 316.

  144. See Interpretative Notes for the Official Records (travaux préparatoires) of the negotiation of the UN Convention against Transnational Organized Crime and the Protocols, UN Doc A/55/383/Add.1 (2000), available at http://www.unodc.org/adhoc/palermo/convmain.html (visited June 2006).

  145. See para.43–50.

  146. See para.54–58.

  147. See para.58.

  148. See R v. Lindsay [2005] O.J. No.2870.

  149. Para.952.

  150. Para.943.

  151. See paras.1068 and 1081.

  152. D.R. Wolf, The Rebels: A Brotherhood of Outlaw Bikers (Toronto: University of Toronto Press, 1991) at 268.

  153. R v. Lindsay [2005] O.J. No.2870 at para.1072.

  154. R v. Speak [2005] O.J. No.5880.

  155. Mark K. Levitz & Robert Prior, supra note 126 at 381.

  156. Ibid.

  157. Canadian Bar Association, supra note 132 at 29.

  158. Don Stuart, supra note 100 at para.41 (on QuickLaw); also see Canadian Bar Association, as ibid.

  159. See C-24 Minutes of Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 16 on November 28, 2001 (Richard Mosley).

  160. Mark K. Levitz & Robert Prior, supra note 126 at 383.

  161. R v. Lindsay [2004] O.J. No.845; 182 C.C.C. (3d) 301.

  162. See para.11.

  163. See para.12.

  164. See para.13.

  165. See para.50.

  166. See para.59.

  167. See para.62.

  168. See para.64.

  169. See R. v. Lindsay [2005] O.J. No.2870.

  170. See para.1084.

  171. Para.1085.

  172. See K. Roach, Criminal Law (3rd ed.) (Toronto: Irwin Law, 2004) at 112.

  173. Don Stuart, supra note 100 at para.40–41 (on QuickLaw); also see Canadian Bar Association, supra note 132 at 28–29.

  174. R v. Accused No.1 [2005] B.C.J. No.2702, judgment rendered December 8, 2005.

  175. Para.51–54.

  176. Para.61.

  177. Para.83.

  178. Para.116.

  179. Para.86.

  180. Para.65.

  181. Para.102.

  182. Para.105.

  183. Para.118–119.

  184. Para.131.

  185. Canadian Centre for Justice Statistics, “Organized Crime in Canada: An Investigation into the Feasibility of Collecting Police-Level Data” (September 2002) at 12 and 21.

  186. M.D. Lyman & G.W. Potter, Organized Crime (Upper Saddle River, New Jersey: Prentice Hall, 1997) at 5.

  187. See M. Beare, supra note 98 at 66.

  188. P. Edwards, “The new face of organized crime,” Toronto Star, September 9, 2005, discussing the outcome of Project Bulldog that resulted in 20 arrests on 70 charges, including illegally trafficking grow-operation marijuana and ecstasy, as well as seizures of steroids and date-rape drugs.

  189. See Canadian Centre for Justice Statistics, supra note 185 at 17 stating that,

    [o]rganized crime groups are no longer operating strictly in competition with each other, but have demonstrated a willingness and an ability to work collaboratively, sharing roles and responsibilities towards a common goal.

    Another trend is the increasing number of organized crime groups of multi-cultural composition.

  190. K. Roach, “Did September 11 Change Everything?: Struggling to Preserve Canadian Values in the Face of Terrorism” (2002) 47 McGill Law Journal at 901 and 903.

  191. John Winterdyk, “‘Anti-Gang’ Legislation: A Step in the Right/Wrong Direction” (2001) October/November LawNow 22 at 24.

  192. R.M. Gordon, “Criminal business organizations, street gangs and ‘wanna-be’ groups: A Vancouver perspective” (2000) 42 Canadian Journal of Criminology at 50 and 51.

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  1. Department of Criminal Justice and Criminology, Ryerson University, Toronto, Canada

    Alexandra V. Orlova

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Correspondence to Alexandra V. Orlova.

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The research for this article is supported by a Ryerson University Faculty of Arts SRC grant. The author wishes to thank Kathleen Chun for her research help.

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Orlova, A.V. A comparison of the Russian and Canadian experiences with defining “organized crime”. Trends Organ Crim 11, 99–134 (2008). https://doi.org/10.1007/s12117-008-9035-z

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