TO PROSECUTE ORGANIZED CRIME

A recent Vancouver prosecution involving the importation of a large
cache of heroin secreted in a shipping container demonstrates the
arduous and lengthy process of bringing organized and sophisticated
criminals to trial.

The police investigation, known as Project Congee, was in the works
for several years and included hours of wiretap evidence that was key
to the Crown's case. Eighteen months of court time were absorbed by
pre-trial motions as the accused tried to have the wiretap evidence
excluded. They failed, and the evidence was admitted. The subsequent
trial, held before a jury, lasted less than four months.

Although such a case is exceptional, it is exceptional only to a
degree. In most major drug prosecutions, often involving some elements
of organized crime, pre-trial motions and other procedural challenges
frequently absorb considerably more time than it takes to run the
trial itself.

Cases of this nature are, to put it mildly, challenging for the
prosecution. In the above example, the accused were ultimately
convicted. (They are appealing those verdicts.) But not all cases of
this sort end so successfully for the Crown.

In the past few weeks a series of articles in The Vancouver Sun
explored how organized criminals such as outlaw motorcycle gangs,
Asian and Indo-Canadian gangs, and associated groups are increasingly
active in a variety of criminal enterprises, including
money-laundering, prostitution, extortion, drug trafficking and murder.

And it was asserted that police and prosecutors have a dismal record
when it comes to trying to stem this tide.

For example, the final installment in the series, entitled "Losing the
war on the bikers," concluded that more than 60 per cent of criminal
cases handled by either federal or provincial prosecutors involving
members or associates of the Hells Angels resulted in either stays of
proceedings or acquittals.

Are police and prosecutors dropping the ball when it comes to
targeting organized crime? And do we as a society need to rethink our
strategy when it comes to battling Crime Inc.?

There is really no comprehensive definition of the term organized
crime. It can include a wide spectrum of anti-social activity.
Criminals join forces and carry out crimes in ways limited only by the
imagination. They might commit only one criminal act, or they may plan
for the long term.

And organized crime is not strictly the domain of Asian, Indo-Canadian
and biker gangs. These groups are prominent in large-scale activities
like the importation and wholesale (multi-kilo) distribution of
cocaine or heroin.

And they dominate and control networks of marijuana growing operations
throughout the province. But at any time there are also a large number
of free agents pursuing their own criminal projects.

Sometimes they are associated with more notorious organizations,
sometimes they are in competition with them. But all share some common
attributes.

They are organized to embark upon a continuing course of criminal
conduct for the dominant purpose of deriving a profit. While some
groups, like a dial-a-dope ring for example, might operate on a
comparatively lesser scale (though that will not always be the case),
each in its own way constitutes a serious threat to the fabric of society.

Measuring success or failure in the realm of enforcement and
prosecution is difficult. In the absence of crime vanishing from our
streets, an unlikely event, it's impossible to know whether certain
policies really are effective. Crime is resilient, organized crime
even more so. Battling crime often leads to a push-down, pop-up effect
as criminals simply relocate to different neighbourhoods or move on to
different types of illegal activity.

The statistics relied upon by The Sun purported to demonstrate that
prosecutions of groups such as biker gangs have failed far more often
than they have succeeded. As is often the case with such statistics,
they are of limited value since they do not reflect the murky
complexity of criminal prosecution.

Every criminal case is a product of its own particular facts and each
frequently brings with it unique legal and evidentiary challenges.

For example, it should not come as a surprise that there are instances
where charges of assault and extortion have been laid against alleged
gang members only to be subsequently stayed or dismissed at trial. The
victims in such cases are often themselves unsavoury. That doesn't
mean that prosecutors put a premium on the virtue of particular
victims nor that such victims are not entitled to a just result.

But in the absence of corroboration it is dangerous to convict on
their evidence alone. The practice of using jailhouse informants,
although in a different context, has been frowned upon by courts for
the same reason. This is an application of the principled approach
that lies at the foundation of our justice system. Where the evidence
is insufficient, even those who might probably be guilty must go free.

Cases may also falter for reasons that have nothing to do with the
strength of the case but rather with the clear duty on the part of the
Crown to halt a prosecution when the public interest demands it. For
example, charges may have to be stayed to protect the identity of
confidential informants or to preserve the integrity of other on-going
investigations.

It must be remembered that infiltrating organized criminal groups is
no easy task. Part of targeting major organized crime groups
inevitably entails making inroads into the drug trade. In the majority
of cases it is the drug trade that serves as the primary source of
income for these groups, allowing its members to finance further drug
deals, set up networks of marijuana growing operations, speed labs and
prostitution rings, and also purchase legitimate businesses, real
property and other assets through which narco-funds can be laundered.

To infiltrate such gangs and gather evidence consumes a considerable
amount of police time and resources with no guarantee that the months
or years spent trying to move up the chain will yield fruit. It is the
reality of law enforcement that police budgets cannot always afford to
indulge that sort of patience.

Even in cases where police have succeeded, through undercover officers
and investigative techniques like wiretaps and searches, there is no
guarantee that the case will proceed to a swift and happy conclusion.

Wiretap evidence can be compelling. Criminals have been convicted on
such evidence alone. And other types of "real" evidence, like seizures
of large amounts of money and drugs in conjunction with intercepted
calls, will also be highly probative as proof of a common design to
commit criminal offences.

But before those types of evidence can be entered in evidence, they
must pass the scrutiny of constitutional challenges, usually in the
form of pre-trial hearings or motions to exclude. (Generally in these
applications the onus lies upon the accused to establish that the
police, in gathering the evidence, acted unreasonably or unlawfully
and the evidence should therefore be excluded.)

Because investigations targeting organized crime are frequently
lengthy and complex (and rely heavily on wiretap evidence), the
motions challenging the admissibility of evidence will be
correspondingly long and complex. This is precisely what occurred in
the Project Congee trial.

This situation is not evidence of a flaw in our system nor failure on
the part of police or prosecutors, but rather the logical consequence
of the Charter of Rights and Freedoms. Under our Constitution,
individual rights are not absolute but subject only to reasonable
limits. So, for example, agents of the state may search someone's
home, but only if they have probable cause to do so. And if a court
determines that the actions of the state are not reasonable, any
evidence obtained by its actions is tainted by such a breach.

Our present laws do provide police with considerable powers to
investigate, search and wiretap persons they believe are associated
with criminal organizations. And Criminal Code amendments of recent
years have created new offences and made changes to wiretap laws
specific to members of criminal organizations in an effort to enhance
police powers. (Arguably such amendments were unnecessary, given the
wide scope of pre-existing laws concerning criminal conspiracy and
wiretaps.)

Even with such tools, investigating and successfully prosecuting
organized criminal groups is a challenge and success often must be
measured in tiny steps, not leaps and bounds.

But is it realistic to think that meaningful reforms to our criminal
justice system would make a profound difference or a change for the
better?

One need not be ruthlessly pragmatic to accept that crime, like
conflict, will forever continue to be a feature of human society and
the human condition. For example, the drug trade, so important to
financing organized crime, will not disappear even if harsher laws
were adopted or police powers enhanced.

There are good reasons to draw this conclusion. First, there will
always be people willing to risk arrest and even the harshest of
penalties because of the immense profits that can be realized from
crimes like drug trafficking. Money is a tremendous motivator.

Second, there will always be a demand for drugs, illicit or otherwise.
Human beings, since the days of flint arrowheads and bearskin thongs,
have messed about with intoxicants of one form or another. We like
what they do to us, how they make us feel, or not feel. Whether we are
seeking tipsiness, gasping elation, or simply a way to make the days
fly by, we like our drugs and there's little any society can do to
change that predilection

Some critics of the existing regime of drug laws argue that the legacy
of a decades-long effort to limit the distribution and use of hard
drugs is one of failure and futility. They conclude, almost with a
certain glee, that we have lost, or are at least losing the "war on
drugs." (The term, almost exclusively used by its detractors as an
expression of ironic contempt, is misleading. The state's tempered
efforts to infiltrate or hamper drug rings could hardly be called warlike.)

It follows that a radical change should be considered, such as the
decriminalization of narcotics like cocaine, heroin or ecstasy and the
implementation of a system of state-run distribution along the lines
of liquor stores.

Let's not bother exploring all the nuances of what is really a silly
and pointless debate. It is fair to conclude that legalization would
simply bring with it a host of new and varied problems -- social,
legal and international. It would not mean the end of the drug trade
- -- no regulated system of distribution could ever satisfy the scale of
demand -- and such measures would certainly not break the back of
organized crime.

Criminals, successful and committed ones anyway, frequently possess a
resourcefulness and imagination that puts many of us to shame. Even if
chased from the drug trade they would be quick to set up shop in other
enterprises with the same sort of alacrity and energy they currently
devote to selling drugs or laundering profits. And there is no reason
to believe that legalization of hard drugs will eliminate the problems
associated with organized crime or that the bad guys will drop tools
and go home.

At the other end of the spectrum are those who argue for stricter laws
and harsher penalties. For example, laws that limit (or curtail
altogether) challenges to wiretap orders and search warrants could
reduce the number of pre-trial applications and dramatically shorten
trials. Sentencing laws could introduce minimum mandatory jail time
for offences such as drug trafficking or membership in a criminal
organization. Such a system would reward offenders who enter an early
guilty plea while those convicted after trial would be guaranteed to
serve a longer sentence.

In every case, the criminal justice system must reconcile the
sometimes irreconcilable interests of the state and the individual.
Changes to the system, whether restrictive or liberal, do not lead to
tangible improvement, they simply alter its focus or chip away at the
interests of one for the other. Tougher laws, like the sort outlined
above, would indeed put more gangsters behind bars, and help break up
criminal networks.

But to survive judicial scrutiny the government would have to
specifically exempt such laws from the application of the Charter.
That is the dilemma.

If we are prepared to treat offenders with a new kind of harshness and
accept an amplification of the powers, we must likewise be prepared to
compromise our own individual rights and liberties in favour of the
interests of the state.

Although the following examples are studies in the extreme, it is
worth noting that totalitarian states such as Nazi Germany, the Soviet
Union and Communist China were quite successful in dramatically
reducing crime and eliminating other types of anti-social behaviour,
(including dissent.)

The gangsters no longer threatened the state; now they were the state.

Peter Hogg is a Vancouver prosecutor and author. The views expressed
are his own.