SCC File No.: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA) - and -

Transcription

1 SCC File No.: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF ALBERTA) BETWEEN: ALAN PETER KNAPCZYK - and - APPELLANT (Respondent) HER MAJESTY THE QUEEN RESPONDENT (Appellant) APPELLANT S FACTUM (ALAN PETER KNAPCZYK, APPELLANT) (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) SIMON RENOUF PROFESSIONAL CORPORATION 1710, A Avenue Edmonton, AB T5J 3G2 Simon Renouf, Q.C. Tel.: (780) Fax: (780) renouf@renouflaw.com Counsel for the Appellant PUBLIC PROSECUTION SERVICE OF CANADA 700 EPCOR Tower St. N.W. Edmonton, Alberta T5H 0E7 Ronald C. Reimer Tel.: (780) Fax: (780) ron.reimer@ppsc-sppc.gc.ca Counsel for the Respondent, Her Majesty the Queen SUPREME ADVOCACY LLP Barristers and Solicitors 340 Gilmour St., Suite 100 Ottawa, ON K2P 0R3 Marie-France Major Tel.: (613) Fax: (613) mfmajor@supremeadvocacy.ca Ottawa Agent for Counsel for the Appellant PUBLIC PROSECUTION SERVICE OF CANADA 160 Elgin Street, 12th Floor Ottawa, Ontario K1A 0H8 Francois Lacasse Tel.: (613) Fax: (613) flacasse@ppsc-sppc.gc.ca Ottawa Agent for Counsel for the Respondent, Her Majesty the Queen

2 TABLE OF CONTENTS PART I OVERVIEW AND FACTS... 1 A. OVERVIEW... 1 B. STATEMENT OF FACTS... 1 (1) The Nature of the Conspiracy... 1 (2) Trial Judge s Findings Regarding Trafficking... 3 (3) Arguments at the Alberta Court of Appeal... 3 (4) Decision of the Alberta Court of Appeal... 4 PART II QUESTION IN ISSUE... 5 PART III STATEMENT OF ARGUMENT... 5 A. OVERVIEW... 5 B. PLAIN WORDING AND ESTABLISHED PRINCIPLES... 6 (1) Defining The Relevant Modes of Party Liability... 6 (2) Elements of Aiding and Abetting... 7 (3) Aiding and Abetting the Offence of Trafficking... 8 C. LEGAL PERSONALITY D. THE DEFINITION OF DISTRIBUTION DOES NOT ASSIST THE CROWN E. NO NEED TO DISTORT THE PLAIN MEANING OF THE WORDS PART IV SUBMISSION ON COSTS PART V ORDER SOUGHT PART VI TABLE OF AUTHORITIES PART VII LEGISLATION AT ISSUE Controlled Drugs and Substances Act, SC 1996, c 19, s Criminal Code, RSC 1985, c C-46, ss 2, 21, 467.1(1), , 556(1)... 19

3 1 PART I OVERVIEW AND FACTS A. OVERVIEW 1 This appeal as of right concerns the proper scope of party liability in cases of drug trafficking. Specifically, it asks whether an accused may be found guilty of aiding or abetting the offence of trafficking in a controlled substance, even where there is no nexus between the acts of that accused and any particular instance of trafficking. 2 The trial judge answered this question in the negative and acquitted the Appellant. 3 The Court of Appeal disagreed, and held that it was sufficient for the Crown to simply show a more generalized connection between the acts of the Appellant and the activities of a criminal organization engaged in drug trafficking. The Court of Appeal therefore overturned the Appellant s acquittal and substituted a conviction. B. STATEMENT OF FACTS (1) The Nature of the Conspiracy 4 The trial judge found that during the relevant dates there was a conspiracy to traffic cocaine operating in Fort McMurray from July 1, 2005, to March 31, The conspiracy essentially operated as follows. Jeffrey Caines was the head of the conspiracy. 1 Caines would arrange for couriers to bring large quantities of cocaine to Fort McMurray and deliver the cocaine to one of the other members of the conspiracy. The individual who received the cocaine from the courier would then hold that cocaine and distribute it to other members of the conspiracy located in Fort McMurray. The cocaine would then be resold in smaller quantities. 2 Caines did not personally handle the cocaine. 1 Joint Appellants Record ( JR ), Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench, at paras 997, 1000.

4 2 6 The trial judge found that Appellant and his co-accused (John Alcantara) were both members of this conspiracy. 3 Their role in the conspiracy was to provide protection to the Caines group in its trafficking activities. This included dealing with the removal of people interfering with its trafficking business, working to address a theft of cocaine from one of the traffickers, and dealing with an issue involving the bullying of members of the Caines group. Their intention in so doing was to further the common design of trafficking cocaine in Fort McMurray. 4 The Appellant and Alcantara were both members of the Hells Angels Motorcycle Club ( HAMC ). By virtue of their membership in the HAMC, they brought to the conspiracy the reputation of the HAMC to carry out these protection activities. 5 There was no allegation of violence perpetrated by the Appellant or Alcantara, and the trial judge found no such violence. 7 The trial judge found that Alcantara was the front line person receiving Caines requests for assistance with problems that impeded the smooth flow of drugs from the Caines organization to the street, and that he dealt with those problems by taking them to his superior for intervention and effectuation of strategies to solve the problems. 6 8 The trial judge found that the Appellant was the superior to whom Alcantara turned for advice and resolution of the problems encountered by Caines in terms of his drug trafficking operation in Fort McMurray. When Alcantara was unavailable, Caines sought out the Appellant to deal with these problems. 7 9 Based on the above findings, the trial judge convicted the Appellant of conspiring to traffic cocaine. 8 She also found that Caines group constituted a criminal organization, and convicted the Appellant of conspiring to traffic cocaine in association with and for the benefit of that criminal organization. 9 Notably, the Appellant has sought leave to appeal from these 3 JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para 945, JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para 1036.

5 3 convictions and thereby seeks to contest the admissibility of key evidence relied upon to make the above findings. (2) Trial Judge s Findings Regarding Trafficking 10 In addition to finding that there was a conspiracy to traffic in cocaine, the trial judge also found that various members of the conspiracy did in fact traffic in cocaine. Specifically, the trial judge found that there was evidence of incidents of trafficking by Caines, Michael Marche, Jeremy Cardinal, Cal Gregoire, Mark Hoskins, Pat McDonald, Charles Flight, Josh Penton, Kamran Sattar and Ricco King However, trial judge concluded that there was no evidence that any of the Appellant s activities aided the trafficking activities of any of those individuals. There was an absence of evidence showing a link or nexus between the Appellant s actions and trafficking activities of his co-conspirators. 11 The trial judge found that there was no nexus between the actions of the Appellant and any particular offence committed by a particular offender. 12 The trial judge therefore acquitted the Appellant of trafficking cocaine. 13 (3) Arguments at the Alberta Court of Appeal 12 The Crown appealed the Appellant s acquittal on a number of grounds. Of note for present purposes, the Crown argued that the trial judge had erred when she required a link between the actions of the Appellant and a particular instance of trafficking committed by a particular person. The Crown argued that the trial judge ought to have instead asked whether the Appellant s actions assisted, encouraged or promoted Caines cocaine trafficking enterprise in a more general way. 10 JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at paras 948, JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para 953.

6 4 13 The Appellant argued that the trial judge correctly applied the law to her findings of fact. On a plain reading of the Criminal Code and the established case law, the Crown must establish a nexus between the actions of the accused and a particular offence committed by a particular person. The Appellant further argued that the type of conduct relied upon by the Crown generalized assistance to a criminal organization is instead captured by the offence of participating in or contributing to the activities of a criminal organization contrary to section of the Code. (4) Decision of the Alberta Court of Appeal 14 The Alberta Court of Appeal agreed with the Crown and held that the trial judge erred when she held that party liability could only attach to the Appellant if he was proven to have aided or abetted a specific instance of trafficking. According to the Alberta Court of Appeal, this was an unnecessarily narrow and incorrect application of the legal principles to the facts as found by the trial judge According to the Alberta Court of Appeal, on a correct application of the legal principles to the facts as found by the trial judge, it was an inescapable conclusion that the Appellant aided and abetted the offence of trafficking through distribution. 15 The Court of Appeal therefore overturned the Appellant s acquittal and substituted a conviction In coming to this conclusion, the Alberta Court of Appeal also made two comments that are noteworthy. First, the Court of Appeal noted that section 21(1) of the Criminal Code refers to aiding or abetting any person, and that the Criminal Code defines person so as to include an organization JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at para JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at para JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at para JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at para 9.

7 5 17 Second, the Court of Appeal also noted that Caines business was cocaine distribution and that distribution is trafficking. 18 PART II QUESTION IN ISSUE 18 This appeal as of right raises a single question of law as follows: Did the Court of Appeal err in holding that the trial judge erred in law by failing to conclude on the facts that the Appellant committed the offence of trafficking by distribution in the absence of proof that the Appellant aided or abetted a specific instance of trafficking under section 5(1) of the Controlled Drugs and Substances Act and section 21(1)(b) or (c) of the Criminal Code? PART III STATEMENT OF ARGUMENT A. OVERVIEW 19 The Appellant submits that the trial judge was correct when she held that party liability only arises where there is a nexus between the acts of an accused and a particular offence committed by a particular offender. This arises from a plain reading of the Criminal Code provision regarding party liability and the case law regarding the type of connection required for party liability. Moreover, the approach adopted by the Alberta Court of Appeal strains the language used in section 21(1), and it does so for no reason: Parliament has recognized the limited scope of party liability and has addressed this issue by enacting section of the Criminal Code, which makes it an offence to participate in or contribute to the activities of a criminal organization, and the offence of conspiracy will normally be available where an individual provides generalized assistance to a criminal enterprise. 20 The position of the Court of Appeal also seems premised upon a flawed understanding of legal personality and an overly broad definition of trafficking by way of distribution. 18 JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at paras 10, 14.

8 6 B. PLAIN WORDING AND ESTABLISHED PRINCIPLES (1) Defining The Relevant Modes of Party Liability 21 Sections 21 and 22 of the Criminal Code set out definitions of those individuals who are parties to an offence. Subsection 21(2) and section 22 are not relevant to this appeal. The only section that is relevant to this appeal is section 21(1), which states the following: 21.(1) Every one is a party to an offence who (a) actually commits it; (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it. [Emphasis added.] 22 A person who actually carries out the physical act (actus reus) of an offence, and who possesses the requisite mens rea, is a person who actually commits the offence under subsection 21(1)(a) of the Criminal Code. Such a person is generally referred to as the principal offender. 19 There may be more than one principal offender, in which case they are referred to as joint principal offenders Under subsection 21(1)(b) of the Criminal Code, an individual becomes a party to a crime if he does anything for the purpose of aiding any person to commit the offence i.e., for the purpose of aiding the principal or principals in the commission of the offence. 21 Such a person is commonly referred to as an aider R v H(LI), 2003 MBCA 97, Joint Appellants Book of Authorities ( JBA ) Tab 5 at para 19; R v Vu, 2012 SCC 40, JBA Tab 10 at para 58; R v Briscoe, 2012 ABQB 239, JBA Tab 1 at para 429. Some cases use the term perpetrator in place of, or interchangeably with, the term principal offender. See, for example: R v Briscoe, 2010 SCC 13, JBA Tab 2 at paras 14, 16; R v Dooley, 2009 ONCA 910, JBA Tab 4 at para R v H(LI), 2003 MBCA 97, JBA Tab 5 at para R v H(LI), 2003 MBCA 97, JBA Tab 5 at para R v Vu, 2012 SCC 40, JBA Tab 10 at para 58.

9 7 24 Under subsection 21(1)(c) of the Criminal Code, an individual is a party to a crime if he does anything that abets any person in committing the offence i.e., if he abets the principal or principals in the commission of the crime. 23 Such a person is commonly referred to as an abettor This appeal is concerned with the scope of liability for aiders and abettors i.e., those captured under subsections 21(1)(b) and 21(1)(c). (2) Elements of Aiding and Abetting 26 Liability as an aider or an abettor has both a conduct component (actus reus) and a culpable mental state component (mens rea). Both components tie the accessory s liability for the substantive crime to the actual commission of that crime by the principal offender The nature of the conduct (actus reus) that can amount to an act of aiding or abetting is coloured by the mental state (mens rea) accompanying that act. 26 The mens rea of aiding or abetting has two components: knowledge that the principal offender intends to commit the crime, and the intention to assist the principal offender in the commission of the offence The actus reus is the performance of an act (or, in some circumstances, an omission) that assists or encourages the principal to commit the offence. 28 To aid under subsection 21(1)(b) means to assist or help the actor. To abet under subsection 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed R v H(LI), 2003 MBCA 97, JBA Tab 5 at para R v Vu, 2012 SCC 40, JBA Tab 10 at para R v Dooley, 2009 ONCA 910, JBA Tab 4 at para R v Dooley, 2009 ONCA 910, JBA Tab 4 at para R v Briscoe, 2010 SCC 13, JBA Tab 2 at para 16; R v Pickton, 2010 SCC 32, JBA Tab 7, LeBel J (dissenting, but not on this point) at para R v Briscoe, 2010 SCC 13, JBA Tab 2 at para R v Briscoe, 2010 SCC 13, JBA Tab 2 at para 14.

10 8 29 The act or omission relied upon must in fact aid or abet the principal offender. 30 There is no need for the Crown to show that the offence would not have been committed but for the actions of the accused; however, the Crown must establish a connection between the alleged act of adding or abetting and the actual commission of the crime by the principal offender. 31 The necessary connection between the accessory s conduct and the principal offender s commission of the crime is captured by phrases such as actual assistance or encouragement, assistance or encouragement in fact, or conduct that has the effect of aiding or abetting Some cases have referred to the required connection as a nexus, 33 which parallels the language that this Honourable Court has used in the context of the common purpose mode of party liability Importantly, what is required to establish this nexus is a connection between the acts of the accused and the actual commission of the offence by the principal offender. 35 Like the mens rea for aiding and abetting, this requirement for a nexus connects the liability of an aider or abettor to the commission of the crime by the principal offender. 36 (3) Aiding and Abetting the Offence of Trafficking 32 The scope of party liability for a given offence turns upon a proper understanding of the elements of that offence. This is because, to be a party to an offence, a person must aid or abet the principals in the commission of the offence. 37 Therefore, this form of party liability only arises where an accused aids or abets the principal offender with some element of the offence 30 R v Pickton, 2010 SCC 32, JBA Tab 7, LeBel J (dissenting, but not on this point) at para 76; R v Briscoe, 2012 ABQB 239, JBA Tab 1 at para R v Dooley, 2009 ONCA 910, JBA Tab 4 at paras 116, 120, R v Dooley, 2009 ONCA 910, JBA Tab 4 at para R v Briscoe, 2012 ABQB 239, JBA Tab 1 at para 433; JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para R v Venneri, 2012 SCC 33, JBA Tab 9 at paras 18, R v Dooley, 2009 ONCA 910, JBA Tab 4 at para R v Dooley, 2009 ONCA 910, JBA Tab 4 at para R v JF, 2013 SCC 12, JBA Tab 6 at para 39.

11 9 charged. 38 It is not enough that an accused help the principal offender; the accused must help in the commission of the particular criminal offence Where the offence charged is trafficking cocaine, liability as an aider or abettor will only arise where the Crown proves that the accused aided or abetted the principal offender in the commission of the offence of trafficking cocaine. Trafficking may be committed in a variety of ways. Section 2 of the Controlled Drugs and Substances Act states that traffic means, in respect of a controlled substance, to sell, administer, give, transfer, send or deliver the substance. 40 Thus, a person aids or abets the trafficking of cocaine if that person aids or abets the principal offender to sell, administer, give, transfer, send or deliver cocaine. The Crown must prove that a principal offender in fact did one of those things, and the Crown must also prove that the accused did some act of aiding or abetting that had a nexus to the acts of the principal offender. 34 All of this leads to the conclusion that the trial judge was correct when she held that the Crown had to establish a connection between the acts of the Appellant and a particular instance where a person trafficked cocaine as a principal offender. 41 Having found that there was no such nexus between an act of the Appellant and any instance of trafficking, the trial judge properly acquitted the Appellant of this charge R v JF, 2013 SCC 12, JBA Tab 6 at para Developments in the Law: Criminal Conspiracy (1959), 72 Harv L Rev 920 at 934, JBA Tab 11, cited with approval in R v JF, 2013 SCC 12, JBA Tab 6 at para Controlled Drugs and Substances Act, SC 1996, c 19, s 2 (definition of traffic ). Trafficking may also be committed by selling an authorization to obtain the controlled substance, or by offering to do any of these things, but these are not at issue in this case. 41 JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para JR, Tab 2, Written Reasons for Judgment of the Alberta Court of Queen s Bench at para 953.

12 10 C. LEGAL PERSONALITY 35 At the beginning of its analysis of this issue, the Alberta Court of Appeal stated the following, at paragraph 9: 43 To aid means to assist or help the person who commits the offence. To abet includes encouraging, instigating, promoting or procuring the offence to be committed: R v Greyeyes, [1997] 2 SCR 825, 214 NR 43, para 26. The act of aiding or abetting must be provided to a person: Criminal Code, s 21. Person includes an organization: Criminal Code, s 2 ( every one, person and owner, and similar expressions, include Her Majesty and an organization). [Emphasis added.] 36 The Court of Appeal then went on to discuss the connection between the Appellant s acts and the operation of Caines cocaine trafficking business 44 i.e., Caines criminal organization. 37 The Court of Appeal s reference to the fact that an act of aiding or abetting must be provided to a person, and that a person is defined as including an organization, seems to suggest that the Court of Appeal concluded that party liability could arise where a person aids or abets a criminal organization in the commission of an offence. If the Court of Appeal did come to that conclusion, then the Court of Appeal was mistaken. 38 Section 2 of the Criminal Code does define person as including an organization, but section 2 also provides the following definition of an organization : 45 organization means (a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or (b) an association of persons that 43 JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at para JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at para Criminal Code, RSC 1985, c C-46, s 2 (definition of everyone, person and owner, and similar expressions).

13 11 (i) is created for a common purpose, (ii) has an operational structure, and (iii) holds itself out to the public as an association of persons; [Emphasis added.] 39 In contrast, section 2 of the Criminal Code states that the term criminal organization has the same meaning as in subsection 467.1(1), 46 which in turn defines criminal organization as follows : 47 criminal organization means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities 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. It does not include a group of persons that forms randomly for the immediate commission of a single offence. 40 It is clear from the above definitions, that a criminal organization is not simply a particular type of organization as that term is used in the Criminal Code. After all, it would be rare for a criminal organization (or a criminal conspiracy) to hold itself out to the public as an association of persons. There was no evidence that the criminal organization at issue in this case did so. 41 Moreover, adopting the view that a criminal organization is simply a particular type of organization would lead to absurd results. For example, criminal organizations would then be able to appear as parties to proceedings represented by counsel Criminal Code, RSC 1985, c C-46, s 2 (definition of criminal organization ). 47 Criminal Code, RSC 1985, c C-46, s 467.1(1). 48 Criminal Code, RSC 1985, c C-46, s 556(1).

14 12 42 It is therefore clear that when subsections 21(1)(b) and 21(1)(c) refer to aiding or abetting a person who commits an offence, those sections are not referring to the idea of simply providing assistance to a criminal organization. Rather, they are talking about providing assistance to a natural person or an organization, as that term has been defined in section 2 of the Criminal Code. In other words, a criminal organization cannot be the principal offender to which a person provides assistance. If the Court of Appeal concluded otherwise, then it did so in error. D. THE DEFINITION OF DISTRIBUTION DOES NOT ASSIST THE CROWN 43 The Court of Appeal also noted that the definition of traffic includes to sell, which in turn includes offer for sale, expose for sale, have in possession for sale and distribute. 49 The Court of Appeal then went on to reiterate that [d]istribution is trafficking, and that Caines business was cocaine distribution. 50 It therefore appears that the Court of Appeal felt that it was somehow significant that the offence of trafficking could be committed by distribution. 44 The Appellant submits that reliance upon trafficking by way of distribution does not assist the Crown. Several cases have held that distribution ought to be given its plain meaning: to deal out or bestow in portions or shares among many; to allot or apportion as his share to each person of a number Thus, in order for the Crown to prove that the Appellant aided or abetted the offence of trafficking cocaine by way of distribution, the Crown would have had to show that the Appellant aided or abetted a principal offender in the dealing out or bestowing or portions or shares of cocaine among a number of people. In other words, there would still have to be a nexus between the Appellant s acts and a particular instance where a principal offender distributed cocaine. 49 JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at para JR, Tab 9, Memorandum of Judgment of the Alberta Court of Appeal at para R v Christiansen (1973), 13 CCC (2d) 504, [1973] NBJ No 105, JBA Tab 3 at paras 7-8; R v Taylor (1974), 17 CCC (2d) 36, JBA Tab 8 at paras

15 13 46 For the reasons discussed above, general assistance to a cocaine trafficking operation does not give rise to party liability unless there is some nexus between an act of the accused an a particular instance where a principal offender trafficked cocaine. However, as discussed below, general assistance to a cocaine trafficking operation may well provide a basis for a conviction for conspiracy, the offence for which the Appellant was convicted. E. NO NEED TO DISTORT THE PLAIN MEANING OF THE WORDS 47 As explained above, the trial judge s interpretation of the scope of party liability was premised upon the plain wording of the Criminal Code and consistent with established authorities regarding the scope of party liability. In overturning the trial judge, the Court of Appeal expanded the scope of party liability beyond that which the plain words of the Code can support. However, as explained below, there is no need to distort the plain meaning of the words in order to achieve such a broad notion of liability. This is because the actions that the Court of Appeal sought to criminalize are already covered by other offences. 48 First, the offence of conspiracy is broad enough to capture those instances where a person provides generalized assistance to the members of a criminal conspiracy. Where a person knows of the existence of a criminal conspiracy, and that person does (or omits to do) something for the purpose of furthering the unlawful object of that conspiracy, with the knowledge and consent of one or more members of that conspiracy, this will provide powerful circumstantial evidence from which membership in that conspiracy may be inferred Also, section makes it an offence to participate in or contribute to the activities of a criminal organization for the purpose of enhancing the ability of that criminal organization to facilitate or commit crimes. 53 Parliament has explicitly specified that in the prosecution of an offence under section , the Crown need not prove that the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence, nor that the accused knew the specific nature of any offence that may have 52 R v JF, 2013 SCC 12, JBA Tab 6 at para Criminal Code, RSC 1985, c C-46, s (1).

16 14 been facilitated or committed by the criminal organization. 54 It is therefore clear that the offence enacted in section was intended to apply in circumstances where party liability would not arise. Parliament enacted section specifically for this purpose, as is made clear from the speech made by then Minister of Justice Anne McLellan at the second reading of Bill C-24, which enacted section At that time, the Minister of Justice stated the following: 55 At its core, the danger of organized crime flows from the enhanced threat posed to society when people combine for the commission of serious crimes. Historically criminal law has responded to this elevated harm by punishing individuals for engaging in conspiracy and for aiding or abetting the commission of specific offences. In 1997 in Bill C-95 parliament went further and directly targeted organizations of such individuals for the very first time by providing a definition of criminal organization, increased investigative powers and increased penalties for those committing crimes in conjunction with criminal organizations. Law enforcement officials and provincial attorneys general have called for a simplified definition of criminal organization and for offences that respond to all harmful forms of involvement in criminal organizations. That is precisely what we have done in the legislation before the House today.... In conjunction with a more streamlined definition, the full range of involvement with criminal organizations is targeted in Bill C-24 by three new offences. The first offence targets participation in or contribution to the activities of criminal organizations. Taking part in the activities of a criminal organization, even if such participation does not itself constitute an offence, will now be a crime where such actions are done for the purpose of enhancing the ability of the criminal organization to facilitate or commit indictable offences. The bill also addresses the concern expressed by law enforcement officials and provincial attorneys general that the current requirement of proving beyond a reasonable doubt that the accused was a party to a specific crime 54 Criminal Code, RSC 1985, c C-46, ss (2)(b), (2)(c). 55 House of Commons Debates, 37th Parl, 1 st Sess, No 46 (23 April 2001) at (Hon Anne McLellan) JBA Tab 12.

17 15 shields from prosecution those in the upper echelons of criminal organizations who isolate themselves from its day to day activities. We know that successful recruitment enhances the threat posed to society by criminal organizations. It allows them to grow and to more effectively achieve their harmful criminal objectives.... Thus the expressed provisions of the proposed participation offence make it clear that the crown does not in making its case need to link the impugned participation, in this case recruitment, to any particular offence. The second new offence retains the core of section of the criminal code which is the criminal organization offence introduced in Bill C-95. The new offence targets those who aid, abet, counsel or commit any indictable offence in conjunction with a criminal organization.... The third new offence deals specifically with leaders in criminal organizations. Like the participation offence, it does so not by criminalizing status but by proscribing the harmful behaviour itself. Leaders of criminal organizations pose a unique threat to society. Operationally they threaten use through their enhanced experience and skills. Motivationally they threaten us through their constant encouragement of potential and existing criminal organization members The penalty provisions for the three offence I have outlined confirm the government s resolve to provide a proportionate and graduated means of addressing all forms of involvement with criminal organizations and to ultimately break the back of organized crime in Canada. The participation offence I previously described is punishable by five years of imprisonment, the party liability offence by a maximum of 14 years of imprisonment, and the leadership related offence is punishable by a maximum of life imprisonment. [Emphasis added]

18 16 50 It is therefore clear that Parliament enacted section in order to ensure that the full range of involvement with criminal activities would be criminalized. There is therefore no need to distort the plain language of the Criminal Code or the traditional understanding of the scope of party liability in order to achieve this objective. PART IV SUBMISSION ON COSTS 50 The Appellant seeks no costs. PART V ORDER SOUGHT 51 The Appellant seeks an Order allowing the appeal, overturning the decision of the Court of Appeal of Alberta, and restoring the Appellant s acquittal for the offence of trafficking (count 2). ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 25 th DAY OF NOVEMBER, Simon Renouf, Q.C., Julia Renouf & Adam Badari Counsel for the Appellant

19 17 PART VI TABLE OF AUTHORITIES TAB CASES PARAS 1 R v Briscoe, 2012 ABQB , 29, 30 2 R v Briscoe, 2010 SCC 13 22, 27, 28 3 R v Christiansen (1973), 13 CCC (2d) R v Dooley, 2009 ONCA , 26, 27, 29, 31 5 R v H(LI), 2003 MBCA 97 22, 23, 24 6 R v JF, 2013 SCC 12 32, 48 7 R v Pickton, 2010 SCC 32 27, 29 8 R v Taylor (1974), 17 CCC (2d) R v Venneri, 2012 SCC R v Vu, 2012 SCC 40 22, 23, 24 ADDITIONAL REFERENCES 11 Developments in the Law: Criminal Conspiracy (1959), 72 Harv L Rev House of Commons Debates, 37th Parl, 1 st Sess, No 46 (23 April 2001) 49

20 18 PART VII LEGISLATION AT ISSUE Controlled Drugs and Substances Act, SC 1996, c 19, s 2

21 19 Criminal Code, RSC 1985, c C-46, ss 2, 21, 467.1(1), , 556(1)

22 20

23 21