Note[1]
(Last revised September 2023)
(Read relevant part of indictment or count).
1. There was a criminal organization (if the organization is named in the count, then this element should be worded that “There was a group named (specify) and it was a criminal organization”).
2. (NOA) knew the group (or specify) had the characteristics that make it a criminal organization.[4]
3. (NOA) knowingly [participated in or contributed to] any activity of the criminal organization (or specify).
4. (NOA)’s purpose was to enhance the ability of the criminal organization (or specify) [to commit or facilitate the commission of] indictable offences, namely (specify indictable offences set out in the indictment or alleged by the Crown). I instruct you as a matter of law that these offences are indictable offences.
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all of these essential elements, you must find (NOA) not guilty of this charge.
If you are satisfied beyond a reasonable doubt of all of these essential elements, [and you have no reasonable doubt[5] after considering the defence(s) (specify defences) about which I will instruct you], you must find (NOA) guilty of this charge.
To determine whether the Crown has proved these essential elements, consider the following questions:
A criminal organization must have three characteristics.[7]
First, it must be a group with some structure and continuity.[8] The members need not have defined roles, and membership may vary over time. However, not every group that commits a crime is a criminal organization. For example, a group that forms randomly for the immediate commission of a single offence is not a criminal organization.
Second, this group must consist of at least three persons.[9] (NOA) does not need to be one of them.
Third, the group must have as one of its main purposes or main activities the [commission or facilitation] of one or more serious offences that, if committed, would likely benefit[10] the group, or any of its members. This need not be the group’s only main purpose or activity[11].
The Crown alleges that one of the main purposes or activities of the group (or specify) is the [commission[12] or facilitation] of (specify offences). I instruct you as a matter of law that those offences are serious offences as defined by the Criminal Code.[13]
Where the indictment alleges “facilitation”, include the following definition:
Facilitation of an offence means making it easier to commit. Facilitation does not require knowledge of a particular offence or that an offence actually be committed.
The benefit must be material, which means that it must be tangible[14] or concrete. It may, but need not, be financial.
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that there was a criminal organization (or, if the group was named in the count, “that there was a group named (specify), and it was a criminal organization”), you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that there was a criminal organization (or, if the group was named in the count, “that there was a group named (specify), and it was a criminal organization”), you must go on to the next question.
I have just told you about the three characteristics necessary for a group to be considered a criminal organization. For this second question, you must ask yourselves whether (NOA) knew that the group (or specify) had those characteristics.[16]
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that (NOA) knew that the group (or specify) had the characteristics that make it a criminal organization, you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) knew that the group (or specify) had the characteristics that make it a criminal organization, you must go on to the next question.
To answer this question, you must first consider whether the Crown has proved beyond a reasonable doubt that (NOA) (specify the acts or omissions alleged).
If you are satisfied that this has been proved beyond a reasonable doubt, then you must consider whether, by those acts[17] [or omissions], (NOA) knowingly [participated in or contributed to] any activity of the criminal organization (or specify).[18] You may consider, among other factors, whether:
1. (NOA) used a name, word, symbol or other representation that identified, or was associated with, the criminal organization (or specify);
2. (NOA) frequently associated with any persons who are part of the criminal organization (or specify);
3. (NOA) received any benefit from the criminal organization (or specify);
4. (NOA) repeatedly engaged in activities at the instruction of any of the persons who are part of the criminal organization (or specify).[19]
Knowingly [participating in or contributing to] any activity of the criminal organization (or specify) is limited to conduct that creates a risk of harm that is more than minimal. It does not include every interaction with a criminal organization that carries some risk of indirectly enhancing its abilities. It includes only conduct that a reasonable person would view as capable of significantly enhancing the abilities of the criminal organization to facilitate or carry out its activities. It does not include innocent or socially useful conduct carried out without any intention of enhancing the ability of the criminal organization to [commit or facilitate the commission of] an indictable offence.[20]
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that (NOA) knowingly [participated in or contributed to] any activity of the criminal organization (or specify), you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) knowingly [participated in or contributed to] any activity of the criminal organization (or specify), you must go on to the next question.
The Crown alleges that (NOA)’s purpose was to enhance the criminal organization’s ability [to commit or to facilitate the commission of] (specify indictable offences alleged by the Crown). I instruct you as a matter of law that these offences are indictable.
To answer this question, ask yourselves whether the Crown has proved beyond a reasonable doubt that (NOA) meant his actions to have the effect of enhancing the ability of the criminal organization (or specify) [to commit or to facilitate the commission of] indictable offences. It is not enough that (NOA) knew his/her conduct would have that effect; that effect must have been his/her goal.[21]
(Review evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to enhance the ability of the criminal organization (or specify) [to commit or facilitate the commission of] indictable offences, you must find (NOA) not guilty of this charge.
If you are satisfied beyond a reasonable doubt that (NOA)’s purpose was to enhance the ability of the criminal organization (or specify) [to commit or facilitate the commission of] indictable offences, you must find (NOA) guilty of this charge.
1. The criminal organization (or specify) actually did [facilitate or commit] an indictable offence; or
2. (NOA)’s [participation or contribution] actually did enhance the ability of the criminal organization (or specify) [to facilitate or commit] an indictable offence; or
3. (NOA) knew the specific nature of any indictable offence that the criminal organization (or specify) may have [facilitated or committed]; or
4. (NOA) knew the identity of any of the persons who were part of the criminal organization.
In summary[23], you must find (NOA) not guilty unless you are satisfied beyond a reasonable doubt that:
1. There was a criminal organization (if the organization is named in the count, then state “That there was a group named (specify), and it was a criminal organization”); and
2. (NOA) knew the group (or specify) had the characteristics that make it a criminal organization; and
3. (NOA) knowingly [participated in or contributed to] any activity of the criminal organization (or specify); and
4. (NOA)’s purpose was to enhance the ability of the criminal organization (or specify) [to commit or facilitate the commission of] indictable offences, namely (specify indictable offences set out in the indictment or alleged by the Crown).
If any one of these essential elements has not been proved beyond a reasonable doubt, [or if you have a reasonable doubt with respect to (specify defences)], your verdict must be not guilty.
You must find (NOA) guilty of this charge if you are satisfied beyond a reasonable doubt of all of the following essential elements [and you have no reasonable doubt after considering (specify defences)]:
1. There was a criminal organization (if the organization is named in the count, then state that “There was a group named (specify), and it was a criminal organization”); and
2. (NOA) knew the group (or specify) had the characteristics that make it a criminal organization; and
3. (NOA) knowingly [participated in or contributed to] any activity of the criminal organization (or specify); and
4. (NOA)’s purpose was to enhance the ability of the criminal organization (or specify) [to commit or facilitate the commission of] indictable offences, namely (specify indictable offences set out in the indictment or alleged by the Crown).
[1] In adapting these instructions for use in a particular case, pay careful attention to the wording of the indictment. Some indictments specify the alleged indictable offences; some do not. Similarly, some specify a name for the group or organization; some do not. Where either is specified, use the specified terms throughout these instructions.
[2] Follow the wording in the indictment, eg, “participating in”, or “contributing to”, or “participating in or contributing to”.
[3] Follow the wording in the indictment, eg, “to commit”, or “to facilitate the commission of”, or “to commit or to facilitate the commission of”.
[4] R. v. Terezakis, 2007 BCCA 384, at para 60.
[5] This instruction will have to be modified where the accused has a legal burden of proof, such as mental disorder and non-insane automatism.
[6] In R v Abdullahi, 2023 SCC 19 at para 88, the Supreme Court of Canada noted: “The existence of a criminal organization is a required element of the offence of participation in the activities of a criminal organization. An instruction on this element is therefore mandatory. The alleged criminal organization must have structure and continuity to give rise to the sort of enhanced threat to society that Parliament has sought to combat. Therefore, in order for the jury to be sufficiently equipped to decide whether a criminal organization existed, the instruction must include an explanation of structure and continuity.”
[7] In R v Abdullahi, 2023 SCC 19, the Supreme Court of Canada stated that the definition of a criminal organization is flexible. However, it cautioned:
“The flexibility with which the definition of a criminal organization is applied 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. The courts have recognized the risks of racial bias or stereotypical reasoning, including subconscious biases, in the criminal justice system (see, e.g., R. v. Williams, [1998] 1 S.C.R. 1128, at paras. 21-22; R v Barton, 2019 SCC 33 at paras. 195-97). Just as the definition of a criminal organization must not be limited to stereotypical models of organized crime, care must also be taken not to identify a criminal organization merely because the group appears to satisfy some stereotypical model. The trier of fact’s focus when tasked with identifying a criminal organization needs at all times to remain fixed on whether the particular group in question possesses the distinguishing qualities of a criminal organization, i.e., structure and continuity.
Trial judges play an important role in combatting biases, prejudices, and stereotypes in the courtroom (Barton, at para. 197). A suitable instruction on the requirements for a criminal organization is part of this. Under the general rules of evidence, courts can exclude evidence that is not relevant to this inquiry or where the prejudicial effect of the evidence would outweigh its probative value. Trial judges should provide a warning to juries of the risks of subconscious bias or improper reasoning where the circumstances warrant such a caution (para. 200)” (at para 85, 86). (See also General Anti-bias Instructions 3.1.1.)
[8] In R v Abdullahi, 2023 SCC 19, the Supreme Court of Canada held that structure and continuity are essential features of a criminal organization. It stated: “The purpose of the Criminal Code’s criminal organization regime is to identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity” (para 78).
[9] The Criminal Code specifies that the persons in the group may be in or outside Canada (s. 467.1(1)(a)).
[10] The Criminal Code states “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” (s. 467.1)(b)). Depending on the circumstances, it may be necessary to give an expanded explanation of “benefit” in this instruction.
[11] Where there is evidence that the group was involved in legitimate purposes or activities, as well as criminal pursuits, the jury should be instructed that it need only find that the commission or facilitation of criminal offences was one of the group’s main purposes or activities (R. v. Terezakis, 2007 BCCA 384, at para 59).
[12] For the purpose of s. 467.11 through s. 467.13, the Criminal Code defines “commission” in s. 467.1(3), as follows: “committing an offence means being a party to it or counselling any person to be a party to it”. Depending on the circumstances, it may be necessary to explain this expanded meaning of “commission” and to amend the instructions accordingly. See ss. 21 and 22 of the Code for the definitions of “party” and “counselling” respectively.
[13] The Criminal Code defines “serious offence” in s. 467.1(1) as “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”.
[14] This instruction reflects the shared meaning of the English word “material” and the French word “matériel” used in s. 467.1 (1)(b) which excludes some synonyms of the English word “material”.
[15] R. v. Terezakis, 2007 BCCA 384, at para 60.
[16] Where wilful blindness is an issue, this instruction should include the words “or was aware of indications that the group (or specify) had those characteristics but deliberately chose to ignore them because s/he did not want to know the truth”. See R. v. Briscoe, 2010 SCC 13.
[17] If more than one act or omission are alleged, you must instruct the jury as follows: “You do not all have to agree on which act or omission is present as long as each of you is satisfied beyond a reasonable doubt that at least one is present”.
[18] Where wilful blindness is an issue, this instruction should include the words “or was aware of indications that he may have been [participating in or contributing to] any activity of the criminal organization (or specify) but deliberately chose to ignore them because s/he did not want to know the truth”. See R. v. Briscoe, 2010 SCC 13.
[19] These factors are taken from s. 467.11 (3) of the Criminal Code and from R. v. Venneri, 2012 SCC 33, at para 43-46. They are not exhaustive and other factors may arise from the evidence.
[20] In R. v. Khawaja, 2012 SCC 69, a terrorist organization case, the Court said at para 51-53 that the actus reus and mens rea requirements of s. 83.18 (the offence of participating in or contributing to a terrorist activity) exclude conviction for conduct that a reasonable person would not view as capable of materially enhancing the abilities of a terrorist group to facilitate or carry out a terrorist activity.
[21] See R. v. Khawaja, 2012 SCC 69, at para 45-46.
[22] These exclusions are specifically enumerated in s. 467.11 (2) of the Criminal Code and apply only to a charge under s. 467.11.
[23] Depending of the complexity of the case, it may be necessary to remind the jurors what the essential elements of the offence are. This may be particularly appropriate for this offence, given the number of things the Crown does not need to prove set out in para [7].