Bringing U.S. RICO Laws to Canada

Does Canada hold anti-RICO views?

In dealing with organized crime in British Columbia, two of the most important recent events were the releasing of the German Report and the completion of the Cullen Commission.  If there was one thing to remember from the German Report, it is that retired RCMP commissioner turned academic, Dr.  Peter German, stated that the silence shown from politicians and bureaucrats at ministry offices and in different branches of government had real-life consequence on peoples’ lives.  And, if there was one thing to remember from the Cullen Commission, it is that Justice Austin Cullen stated that there was much to do to oppose and reverse the inroads that organized criminal activity had managed to build into these social, political, and economic elements of B.C. society.  Hearing a former RCMP Deputy Commissioner and a Superior Court Judge make those statements should make most people think that it was time to make the necessary amendments to Canada’s Criminal Code, to address the issues before they threatened to get out of hand.

If members of parliament could agree on decriminalizing marijuana, something that is less significant when compared to the harms caused by organized criminal activity, then they should be able to agree on something as important as expanding the criminal code to further criminalize the unforeseen and evolved aspects of organized criminal activity.  Or so one would think; yet there was a piece of academic literature  hosted on Canada’s Department of Justice webpage that seemed to be full of anti-RICO sentiment and non-impartial on organized control strategies.

Canada’s Department of Justice webpage hosts anti-RICO sentiment in non-impartial report on organized crime control strategies.

Canada’s Department of Justice has a publicly accessible document labelled “Assessing the Effectiveness of Organized Crime Control Strategies: A Review of the Literature.”, which looks into prosecuting people involved in organized crime, prosecuting organized crime kingpins, prosecutions through the use of taxation laws, and monitoring financial transactions tackling money laundering.  Although the document does get some things right about organized crime fundamentals, there are passages within the document that might make a person wonder whether it was written by non-lawyer activists because of how the document seems to disregard the powers made available by RICO laws.

Firstly, there is the mention of how naming the law and using the word “racketeering” creates a stigma of being labelled a “racketeer” when that person has no connections to organized crime.  The example used to illustrate this thinking is that of a deputy sheriff and traffic court clerk who were convicted under RICO for fixing parking tickets, and there seems to be an insinuation that RICO is meant to be used mainly for legitimate corporations.  Then a reference is made about how RICO was considered to be a “dramatic failure’ in going after organized crime groups with legitimate businesses because less than 10 percent of cases fell under the RICO category, and because many RICO cases have involved government agencies that have been corrupted.

However, focusing on a single word from the RICO acronym and disregarding that there are 35 specific offenses which fall under the Act might lead readers to believe that the laws are misapplied and abused, solely focusing on the meaning of “racketeering”.  Let us not forget that these 35 specific offenses vary a great deal from each other, with things like bribery; counterfeiting; mail, wire, and financial fraud; obstructing justice; jury tampering, trafficking, insider trading, extortion, illegal gambling, arson, kidnapping, murder, money laundering, embezzlement, human smuggling, and terrorism being just some of those unsavory acts.  Concentrating on the fixing of parking tickets seems to insinuate that the actions by the deputy sheriff and traffic court clerk was an overreach and that RICO laws are mainly for legitimate corporations ignores that the deputy sheriff and court clerk had taken an oath to uphold the law, were entrusted with powers of their institution and that, as of 2023, the application of RICO laws demonstrates that they are just as frequently used for informal corporations and anything that might constitute a discreet entity—including gangs and crime groups.  By calling RICO laws a “dramatic failure” and stating that many RICO cases have involved government agencies that may have once been corrupted, the authors of this document choose to paint a picture of laws that do not work and absolve the role that individual actions play in RICO cases in order to blame the government.

Secondly, another U.S.  law is referenced, Continuing Criminal Enterprise (CCE), and while CCE laws are somewhat accurately described, the difference in scope and legal powers between RICO and CCE laws are not.  The document refers to how only a third of the suspects that are investigated get charged, almost making it sound as though the investigation of people for the appearance of a crime being committed but not charging them if they have not broken the law is a bad thing.  Furthermore, there is reference to the disrupting of organized criminal activities and jailing their top leaders, but the document indicates that it might not be the success it is made out to be, and that the government is unable to provide tangible evidence that RICO prosecutions have resulted in diminishing organized crime activity, which is succeeding despite law enforcement efforts.  Additionally, there is mention of how the dismantling of criminal enterprise often gives rise to another criminal enterprise or revives former groups who were no longer active, and that illicit activities continue to persist, as though the filling of a criminal void by other criminals was a novel idea or exclusive to RICO cases.

This thinking builds upon the faulty reasoning previously addressed, and ignores that investigating someone under the pretense that a RICO offence may have been committed is a far higher standard than the standard city police officers need to meet to carry out arrests, which is such a low standard that municipal police officers can often get away with weaponizing policing powers even when no offences have been committed.  In addition, if something has the appearance of being organized criminal activity, or if there is information about potential organized criminal activity possibly occurring, then it should be investigated.  If it is determined that there is nothing to it, then nobody should get charged. Thinking otherwise stinks of “street level cop thinking” where street cops are eager to create “probable cause”, and they are often individuals who should be kept far away from serious investigations involving RICO laws.

Perhaps this is evidence of just how poor some of the thinking within this piece of literature is today and may have been so even when it was published in the early 2000s.  The document does not seek to provide an impartial overview about some of the most important aspects of RICO laws, characterizing the impact of money laundering laws as being modest, “While the jury is still out in terms of the impact of money-laundering laws and the evidence to date is not reassuring,” However, if Canada actually tried telling their international counterparts at the Financial Action Task Force (FATF),  that RICO laws were a “dramatic failure”, or similar anti-money laundering legislation that was inspired by RICO laws elsewhere, the FATF and other countries that are leading the fight against organized criminal activity might wonder if everything was okay with us.

The name to remember is that of Quebec Superior Court Judge, France Charbonneau.

Imagine being a recent graduate and starting your career as a legal secretary in the 1970s and having to figure out how to navigate the workplace as a female in a male-dominated environment known for its patronizing sexism.  You could be as competent as your peers, but because of your gender, your male counterparts think that you are best suited to pick up coffee for everyone and do other “traditional female” things around the office.  Imagine having to put up with a toxic workplace and not burning out, eventually becoming a Crown prosecutor despite that.  Now imagine, after all that your male colleagues put you through, it was only you who was fearless about prosecuting the president of the Hells Angels criminal organization in Quebec, while they were all uneasy about pursuing the case.  Imagine taking over that file and successfully prosecuting the president of the Hells Angels and convicting them on 99% of their murder charges.  That is the mountain that France Charbonneau had to trek before reaching the mountain peak and becoming a Quebec Superior Court Judge, and that is an example of the same “Quebecois fighting spirit” that past generations tapped into when it came to doing hard things.  Precisely for these reasons, it is why Justice Charbonneau was selected to lead Quebec’s public inquiry into organized criminal activity in the awarding process for public contracts.

Don’t disrespect Quebec, they are committed to cleaning up the province.

In 2010, there was an article that was published that insinuated that Quebec was Canada’s most corrupt province, and many Canadians may have agreed with that statement.  However, just because one person’s dirty laundry is out in the open for everyone to see should not be taken to mean that it is dirtier than everyone else’s laundry.  Instead, all provinces seem to be struggling with organized crime, some hide it better than others, but Quebec’s approach to the problem was to unleash the full force of Quebec’s Surete du Quebec and by creating the Permanent Anticorruption Unit.  Quebec’s Permanent Anticorruption Unit has gone after everyone from elected officials and other bureaucrats to senior officers who were sharing confidential policing information with organized crime suspects.  So, the fact that Quebec has legislation that prioritizes the integrity of their institutions and that their anti-corruption units are having success in the fight against organized crime.

Most people might not understand just how important of a role that the Charbonneau Commission, led by Justice France Charbonneau, has played for all of Canada’s provinces and territories when it comes to strengthening the integrity of institutions, and it should be viewed as one of Quebec’s most important identity-defining moments.  When the public inquiry was over, Justice Charbonneau’s remarks seemed to be more than what bureaucrats had bargained for, and it resulted in her co-Commissioner trying to downplay the Justice’s remarks.  Those remarks included Justice Charbonneau saying that the organized criminal activity was far broader and more deeply rooted than everyone thought and that it was essential that all the recommendations be implemented.  When Justice Charbonneau also stated that there was a connection between political party financing and the granting of subsidies and public contracts, that the problem was both deeply rooted and systemic, this appeared to shock the entire country, and the co-Commissioner decided to go against Justice Charbonneau by referencing some technicality and saying that there was no “direct” connection between two.  However, shortly after going against Justice Charbonneau’s position, a news article came out where the co-commissioner and former solicitor general was quoted for what he had said in a previous interview about how they were not interested in uncovering illicit practices.

What seemed to get drowned out in all the noise was Justice Charbonneau’s words of encouragement for the work that journalists do, saying that it was important for journalists to continue their important work as “watchdogs of democracy”.  Perhaps if Quebec could figure out a way to be a little more inclusive and a little more sensitive to the smallest of differences between people from all walks of life, more Canadians could get behind their trailblazing efforts in ensuring institutional integrity, and Quebec would serve as a model province for the rest of the provinces and territories.

Many other provinces, on the other hand, have never even acknowledged the presence of organized crime within their borders, not to mention ordering a public inquiry into such matters or reviewing the integrity of their institutions and different branches of government.  Perhaps what will catch a lot of people by surprise, however, is that the judges that are appointed to lead public inquiries often have to deal with muzzling-like conditions that shield individuals from being criminally and civilly responsible for their actions.  For issues like these, we need more people like Justice Charbonneau and her willingness to bring corruption and organized crime to light, even if, or perhaps especially if, it means provincial governments have to fear getting a reputation like Quebec’s.