Lindsay and Bonner were members of the North Toronto chapter of the Hells Angels Motorcycle Club. On January 23, 2002, they went to the home of M.M., a dealer in black-market satellite television equipment, and demanded that he pay them $75,000 to cover an alleged debt arising from an earlier sale. The appellants threatened M.M. with bodily harm. Both men were wearing jackets bearing the Hells Angels logo, though M.M. only realized this when they turned their back.
M.M. reported the encounter to police who suggested a ‘sting’. At the next meeting Lindsay wore boots with the words "Hells Angels North Toronto" and the death head logo, a belt bearing the words "Hells Angels" embroidered on it and a death head on its buckle, a t-shirt bearing the death head logo and the words "Hells Angels Singen", and a necklace with a pendant of the Hells Angels death head logo. Inside the restaurant, Lindsay threatened M.M. He reminded him that if he did not get his money back, his days were numbered, that he was in trouble, that he was lucky to be standing there, that Lindsay would send people to his house and that the money belonged to Lindsay and "five other guys that are fucking the same kind of mother fuck as I am". Bonner stayed outside but wore a jacket bearing the Hells Angels death head logo and the words "Hells Angels East End" and a black t-shirt bearing two death heads and the words
"Hells Angels First Anniversary". A variety of items related to the Hells Angels, including telephone lists for various club chapters, were found on Lindsay's person and in the truck.They were arrested outside and charged charged with extortion and also charged with charged with committing extortion for the benefit of, or at the direction of, or in association with a criminal organization.
CanadaR. v. Lindsay [2004] O.J. No. 845 was the first challenge to the amended definition of ‘criminal organisation’ as set out in the Canadian Criminal Code. The previous definition in the Canadian Criminal Code was criticised by law enforcement agencies for requiring the group to have at least five members, at least two of whom have committed serious offences within the preceding five years. Lindsay and Bonner claimed the new provisions however were vague and over-broad and thus unconstitutional for the purposes of the Canadian Charter of Rights and Freedoms. The trial judge reasoned that the language used in the relevant provisions was sufficiently precise and clear, and moreover that the court was entitled to draw inferences from the conduct of the accused to conclude that they were participants in a criminal organisation for the purposes of the legislation. The case on appeal upheld the reasoning of the trial judge and concluded that reasonable inferences had been drawn and dismissed the appeal. The trial judge discussed the legislative history of the amendments including as regards the United Nations Convention against Transnational Organized Crime.
In R. v. Lindsay [2009] 97 O.R 567, the accused appealed their convictions and one accused (Lindsay) appealed his sentence. The case on appeal was dismissed and the findings and reasoning of the trial judge upheld.
The appeal court examined:
(1) Did the trial judge err by concluding that ss. 467.1 and 467.12 (regarding in particular the words "facilitation" in s. 467.1 and "in association with" in s. 467.12 respectively) were not impermissibly vague and overbroad?
(2) Was the trial judge's conclusion that the appellants committed the extortion in association with the Hells Angels Motorcycle Club unreasonable?
(3) Did the trial judge err by sentencing Lindsay to a jail term of four years and four months?
In relation to the first issue regarding the constitutionality of the term criminal organisation the court agreed in principle that the concepts of fundamental justice enshrined in the Charter of Rights and Freedoms protect against both vague and overbroad law. However the court cautioned that overbreadth exists only if the adverse effect of legislation on individuals subject to it is grossly disproportionate to the state interest the legislation seeks to protect or achieve (citing R. v. Malmo-Levine, [2003] 3 S.C.R.571), and the State enjoys deference in this regard. Similarly, a law should be declared impermissibly vague only if it does not provide a "basis for legal debate and coherent judicial interpretation . . . . [i]f judicial interpretation is possible, then an impugned law is not vague" per Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 103.
It was agreed with the trial judge the word "facilitation" and the phrase "in association with" are common and well-understood, both in ordinary parlance and in a legal context. The appeal court noted the trial judge referred to the Concise Oxford Dictionary and to Black's Law Dictionary to find that it meant to make something easier.
The court also found the phrase "in association with" was not impermissibly vague. The phrase is intended to apply to those persons who commit criminal offences in linkage with a criminal organization, even though they are not formal members of the group. The also noted The Oxford English Dictionary defined the phrase "associate oneself with" to mean, "allow oneself to be connected with or seen to be supportive of". The court agreed the wording constitutes an intelligible standard. It also noted there are a variety of sections of the Criminal Code in which the concept of "facilitation" are used and indeed the term has survived several constitutional challenges already.
Regarding the claims of imprecision and intent the court said that while it is impossible to draft laws that precisely foresee each case that might arise judges are aided by precedent and considerations like the text and purpose of a statute, to interpret laws. In the present case the court noted the trial judge examined the construction of the provision correctly to find that there is an implicit requirement that the accused committed the predicate offence with the intent to do so for the benefit of, at the direction of, or in association with a group he/she knew had the composition of a criminal organization.
In relation to the second question -was the trial judge's conclusion that the appellants committed the extortion in association with the Hells Angels Motorcycle Club unreasonable? The court again agreed with the trial judge that the accused does not have to do something "active" to associate themselves with the organization, beyond wearing its symbol. On the facts they went to M.'s house wearing jackets bearing the primary symbols of the group, the name "Hells Angels" and the death head logo. In so doing, they presented themselves not as individuals, but as members of a group with a reputation for violence and intimidation. Only full members of the organization could wear its symbols. It was a reasonable inference that Lindsay and Bonner were each well aware of the implications of their choice of attire. For their meeting in a public place, Lindsay chose to wear less overt garb, but still he was attired in paraphernalia displaying his connection to the group. This included boots with the words "Hells Angels North Toronto" and the death head logo on the foot. Bonner waited outside in a vehicle, wearing the same jacket per their initial meeting the court noted. Lindsay told Mr. M. that if he did not receive a sufficient amount of money each month, he would send "people" to Mr. M.'s house, and that the money sought was his and five other "guys" who were "the same kind of mother fuck as I am". It was also a reasonable inference to draw that Lindsay intended to communicate that he would send other members of the Hells Angels to Mr. M.'s home. Both men knew the group's reputation for violence and intimidation. The court on appeal found the reasoning of the judge ‘impeccable’ and stated that the inferences drawn were well-grounded.
Regarding the final question (sentencing) the court on appeal rejected that the trial judge had over emphasized that the offence was committed in association with a criminal organization as an aggravating factor. It referred to the devastating effects of the extortion by members of the Hells Angels on M.M.'s family and agreed with the trial judge that no credit for pre-sentence house arrest was appropriate in the circumstances.
R. v. Lindsay [2004] O.J. No. 845 was the first challenge to the amended definition of ‘criminal organisation’ as set out in the Canadian Criminal Code.The new definition defines a "criminal organization" to mean 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 meaning an indictable offence under the Criminal Code or other federal statute punishable by a maximum of five years' imprisonment or more, or another offence prescribed by regulation that 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.
The applicants argued the legislation was broader than necessary and unconstitutional for the purposes of Canadian Charter of Rights and Freedoms. The definition of a criminal organization does not include any requirement of a pattern of activity, nor is it limited to enterprise organizations. It was argued as a result, the legislation captures too much in its net: it is overbroad.
They also argued that Section 467.12 which renders it an offence to commit an indictable offence "in association with" a criminal organization was so imprecise as to also be unconstitutional: it was argued it was unclear when a person commits an offence on this basis. Further, it was argued the definition does not indicate when a person is in or out of the group, and it does not require active participation in an offence by those in the group.
Third, the applicants argued a criminal offence had been created without the minimum constitutionally required mens rea (there was no requirement on the prosecution to prove that the accused knew the identity of any of the persons who constitute the criminal organization, or had an intention to commit the predicate offence in association with the criminal organization, or intended that the commission of the predicate offence would further the interests of the criminal organization).
Discussing the legislative history of the provisions and amended provisions the Court agreed that Parliament attempted to adhere to the United Nations Convention. The court stated it was undisputed the legislation was meant to be ‘anti-gang’ -aimed at criminalising participation as opposed to gang membership. On November 30, 2000, the United Nations General Assembly adopted the United Nations Convention Against Transnational Organized Crime, and to which the court noted Canada became a signatory on December 14, 2000. The Convention sets out a definition of "organized criminal group" as "a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit". A "serious crime" means "conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years. A "structured group" under the Convention means "a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure".
The difficulties with the previous definition under the Code was also mentioned by the trial judge as excessively complex to establish. The negative effects of criminal organisations within communities was referred to. The new definition "will target criminal groups of three or more individuals, one of whose main purposes or activities is either committing serious offences or making it easier for others to commit serious offences". The legislation became law on January 7, 2002. Canada ratified the United Nations Convention on May 13, 2002.
In considering whether a legislative provision is overbroad, the court stated the question to ask is whether those means are necessary to achieve the stated objective-starting point is to determine what the legislation in issue truly captures. The words of the statute should be examined in their context and grammatical and ordinary sense with its objective; and a statute should be interpreted to avoid absurd results. In addition the court stated the legislature should be afforded some deference. On the facts the court referred to the dangers to society has long been recognized in the case of conspiracies to commit crime. It noted in accordance with the United Nations Convention mere group activity was not criminalised however but rather only "serious crime" was the target and that was defined in the Convention and elsewhere in Canadian law. It stated there was no stereotypical organised crime but it had regard to the wide range of activities to which organized crime extends, such as tobacco smuggling, migrant trafficking, and hazardous waste disposal. It is not necessary that the legislation identify one type of crime –for example of the type usually committed by street gangs. The court also examined some hypothetical situations to confirm that the legislation was not too wide or overly broad and unconstitutional.
Regarding the claim that the new legislation was vague the court considered the term "criminal organization" was not impermissibly vague. Ordinarily a legislative provision will be unconstitutionally vague where it "does not provide an adequate basis for legal debate", in that a conclusion cannot be reached as to its meaning "by reasoned analysis applying legal criteria". However here the components of that term are specified in the legislation -they include a minimum number of persons, and a common objective, that is, a main purpose or activity. As for the reduced numbers involved (from five to three)-that was of little consequence-the fact that Parliament could have set the minimum number of persons higher than three did not render the term vague (elsewhere in its reasoning the court noted, per the Convention, that the group but only be structured, not random but not necessarily possessing a strict hierarchy). The court then examined certain key words in the legislation.
The group's common objective (main purpose or main activity) is specified to be the facilitation or commission of at least one serious offence that would likely result in the receipt of a material benefit by the group or any person constituting the group: There is no vagueness, in particular there is no uncertainty as to the meaning of the word "commission" and the word "facilitate" also has a clear meaning. The trial judge referred to the similar definitions of facilitate in The Concise Oxford English Dictionary and Black's Law Dictionary as making something easier. It also found the phrase "serious offence" is defined often and elsewhere in legislation. As regards the adjective material the court again referred to the Concise Oxford English Dictionary meaning of the word "material" includes "important", or "essential". Whether something will be found to constitute a "material benefit" will depend on the facts of the particular case. This is the kind of interpretative exercise that appropriately falls to the judiciary.
Likewise the phrase "in association with" is not impermissibly vague. The phrase is intended to apply to those persons who commit criminal offences in linkage with a criminal organization, even though they are not formal members of the group. The court noted the Oxford English Dictionary defines the phrase "associate oneself with" to mean, "allow oneself to be connected with or seen to be supportive of". In all the court reasoned the phrases "criminal organization" and "in association with" are not impermissibly vague, whether taken individually or in combination.
Regarding the mental element in order to convict an accused under this provision, the Crown must prove that he/she had the requisite mens rea for the particular predicate offence involved, and that the accused acted for the benefit of, at the direction of, or in association with a criminal organization i.e. with the intent to do so for the benefit of, at the direction of, or in association with a group he/she knew had the composition of a criminal organization, although the accused need not have known the identities of those in the group. The court did not agree this was less than a subjective mens rea.
A question regarding section 467.14 and sentencing was reserved. Other aspects of the application were dismissed.
Steven Patrick Lindsay was charged with committing extortion for the benefit of, or at the direction of, or in association with a criminal organization, contrary to the Criminal Code. He was also charged with the offence of extortion.
Raymond Lawrence Bonner, was charged with committing extortion for the benefit of, or at the direction of, or in association with a criminal organization, contrary to s. 467.12 of the
Criminal Code. He was also charged with the offence of extortion Mr. Bonner alone is charged with breach of recognizance.
The definition of criminal organisation as originally drafted under the Canadian Code was criticised for its complexity and consequent limited application. The amended legislation the subject of the legal challenge here (in contrast) reduced the minimum number of members to three or more people, and also eliminated the need to show a pattern of activity in the last five years. It also employed phrases regarding the facilitation of an offence and/or in association with a criminal organisation- indicating like the definition of 'orgnaized criminal group' under the United Nations Convention against Transnational Organized Crime, a developed structure is not necessary to fall foul of the law.
The court on appeal in Lindsay fully agreed the elements of the definition of organised crime were met on the facts but also that the legislation was not overly broad or vague and that the trial judge had drawn entirely reasonable inferences on the facts. The appeal court case did not state that the indicators in the present case should serve a kind of checklist in every case. Both courts stressed it is preferable to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. This has also been argued in later cases –see R. v. Howe, 2017 NSSC 213-so that while motorcycle gangs, Colombian drug cartels, and American "crime families" may well be characterised by violence and corruption these are not necessarily determinative of organized criminal groups, and other groups may still be organised crime groups. Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime. While entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme (see submissions in R. v. Howe, 2017 NSSC 213).