Daren Smith’s constitutional challenge, together with his sentencing hearing were subsequently scheduled. The parties were given leave to present written and oral submissions which they did and the respective hearings were conducted. This decision constitutes the Court’s ruling with respect to the constitutional challenge presented on behalf of Daren Smith.

CONSTITUTIONAL CHALLENGE TO

ORGANIZED CRIME PROVISIONS, CRIMINAL CODE

 

The defendant, pursuant to s. 24 of the Canadian Charter of Rights and Freedoms (the “Charter”), seeks a declaration that ss. 467.12 and 467.13 of the Criminal Code, violate s. 7 of the Charter and are therefore unconstitutional and of no force and effect. Additionally, the defendant claimed that s. 467.14 of the Criminal Code violates ss. 7 and 9 of the Charter and it is therefore also unconstitutional and of no force and effect. In the defendant’s written and subsequent oral

submissions made to the Court upon the hearing of the application, he abandoned the application to have s. 467.14 declared “unconstitutional” (see paragraph 33, defendant’s written argument) obviating the necessity of a ruling on that aspect of the motion.

 

DECISION

 

Defence and Crown counsel accepted that the issue of the constitutional validity of ss. 467.1, 467.12 and 467.13 of the Criminal Code was extensively considered in two recent judgments of trial courts in Ontario and British Columbia. All counsel accepted and stipulated that the materials, sources and analysis undertaken in these two judgments were reliable and summarized the legal positions being taken on behalf of the parties. The materials filed by the Crown upon this application (some four volumes) contained, for the most part, the same sources and resources presented to and reviewed by the justices hearing the prior challenges in the cases of R. v. Lindsay (2004), 70 O.R. (3d) 131; [2004] O.J. No. 845 (QL) (Ont. S.C.J.) and R. v. Accused No. 1 and Accused No. 2, 2005 BCSC 1727; [2005] B.C.J. No. 2702 (QL) (B.C.S.C.).

[…]

It should be noted at this time and in this context that both Counts 6 and 7 of the Indictment charging Daren Wayne Smith with the s. 467.12 and 467.13 offences stipulated that he was one of the persons who constituted a [the] criminal organization even though that was not a necessary element to the s. 467.12 charge.

 

This Court has very carefully read and considered the judgments in both the Lindsay and R. v. Accused No. 1 and No. 2 cases, supra. Holmes J. in the R. v. Accused No. 1 and No. 2 case, analyzed, in great detail, the definition of “criminal organization” contained in s. 467.1. In respect of the s. 467.13 charge, she concluded that the definition of “criminal organization” in s. 467.1 failed to meet the constitutional tests against vagueness and over-breadth when applied to the requirement of s. 467.13 that the accused is “one of the persons who constitute a criminal organization.” Those tests were articulated by the Supreme Court of Canada in the cases cited and analyzed by both Fuerst J. and Holmes J. in the Lindsay and Accused No. 1 and No. 2 cases, supra.

 

Little would be gained by adding yet a third judgment on the matter.

Suffice it to say, with great respect and deference to the analysis and conclusions reached in the R. v. Accused No. 1 and Accused No. 2 case, supra, this Court adopts the reasoning, analysis and ultimate conclusions reached by Fuerst J. in the R. v. Lindsay case, supra, as it applies to the constitutional validity of both s.467.12 and s. 467.13 as well as s. 467.1.

 

This Court has independently concluded that there is no distinction that should be made with respect to the application of the principles against vagueness or overreaching to the definition of “criminal organization” contained in s. 467.1 as it applies to and is used in s. 467.13 and s. 467.12.

To apply the analysis used in R. v. Lindsay, supra, the question of whether or not a “criminal organization” as defined in s. 467.1 exists, and whether the accused is “one of the persons who constitute a criminal organization,” requires a legal and factual determination by the court, whether judge or judge and jury. If the definition provides sufficient characteristics to answer the tests of vagueness and overreaching in determining that a criminal organization exists then, as Fuerst J. concluded, respecting s. 467.12, it calls upon the exercise of the judicial function to determine if the evidence establishes facts from which it can be concluded, beyond a reasonable doubt, that an accused knowingly “commits an indictable offence ... for the benefit of, at the direction of, or in association with, a criminal organization” (s. 467.12). I have concluded that the same exercise of the judicial function is appropriate to determine whether an accused is proven, beyond a reasonable doubt, to be one of the persons “who constitute a criminal organization” etc. (s. 467.13). If the definition in s. 467.1 withstands constitutional challenge for the purposes of s. 467.12, I conclude it does so for s. 467.13 as well.

For the reasons outlined and upon the analysis applied in R. v.Lindsay, supra, which this Court accepts and adopts as applying to the issues raised upon this application with respect to s. 467.13 of the Criminal Code, the defendant’s application to declare s. 467.12 and/or s. 467.13 (and inferentially s. 467.1) of the Criminal Code constitutionally invalid, is dismissed