(Last Revised September 2023)
(Read relevant part of indictment or count)
Unless you are satisfied beyond a reasonable doubt that the Crown has proved all of these essential elements, you must find (NOA) not guilty of this charge.
If you are satisfied beyond a reasonable doubt of all of these essential elements, [and you have no reasonable doubt[3] after considering the defence(s) (specify defences) about which I will instruct you,] you must find (NOA) guilty of this charge.
To determine whether the Crown has proved these essential elements, consider the following questions:
If the indictable offence alleged in the count is charged separately, then the jury should be instructed on that offence first and, under this question, should be instructed as follows:
You should first consider whether the Crown has proved beyond a reasonable doubt that (NOA) is guilty of (specify indictable offence alleged in the count).
If the indictable offence alleged in the count is not charged separately, then the jury should be instructed as follows:
I will now instruct you on the offence of (specify).
(Insert instruction on the essential elements of the offence).
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that (NOA) committed the offence of (specify), you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) committed the offence of (specify), you must go on to the next question[5].
A criminal organization must have three characteristics.[7]
First, it must be a group with some structure and continuity.[8] The members need not have defined roles, and membership may vary over time. However, not every group that commits a crime is a criminal organization. For example, a group that forms randomly for the immediate commission of a single offence is not a criminal organization.
Second, this group must consist of at least three persons.[9] (NOA) does not need to be one of them.
Third, the group must have as one of its main purposes or main activities the [commission or facilitation] of one or more serious offences that, if committed, would likely benefit[10] the group, or any of its members. This need not be the group’s only main purpose or activity[11].
The Crown alleges that one of the main purposes or activities of the group (or specify) is the [commission[12] or facilitation] of (specify offences). I instruct you as a matter of law that those offences are serious offences as defined by the Criminal Code.[13]
Where the Crown alleges “facilitation”, include the following definition:
Facilitation of an offence means making it easier to commit. Facilitation does not require knowledge of a particular offence or that an offence actually be committed.
The benefit must be material, which means that it must be tangible[14] or concrete. It may, but need not, be financial.
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt that there was a criminal organization (or, if the group was named in the count, “that there was a group named (specify), and it was a criminal organization”), you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that there was a criminal organization (or, if the group was named in the count, “that there was a group named (specify) and it was a criminal organization”), you must go on to the next question.
I have just told you about the three characteristics necessary for a group to be a criminal organization. For this third question, you must ask yourselves whether (NOA) knew that the group (or specify) had those characteristics.[16]
The Crown does not have to prove that (NOA) knew the identity of any of the persons who were part of the criminal organization.
(Review relevant evidence and relate to issue)
Unless you are satisfied that (NOA) knew that the group (or specify) had the characteristics that make it a criminal organization, you must find (NOA) not guilty of the charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) knew that the group (or specify) had the characteristics that make it a criminal organization, you must go on to the next question.
The Crown must prove beyond a reasonable doubt that (NOA) committed the offence:[17]
You do not have to be satisfied that all three of these circumstances are present. It is sufficient that you are satisfied beyond a reasonable doubt that one or more of them are present. You do not all have to agree on which circumstance is present as long as each of you is satisfied beyond a reasonable doubt that at least one is present.
I will instruct you on the definition of some of these terms.
“For the benefit of” the criminal organization means the commission of the offence would favour, help, advantage or profit the criminal organization.[18]
“At the direction of” the criminal organization means that in some way the criminal organization itself (including a person who had authority to act on behalf of the criminal organization), not just an individual member looking after his or her own interests, was directing the commission of the offence.
“In association with” the criminal organization means the offence is linked to the organization and advances, at least to some degree, its interests.[19]
(Review relevant evidence and relate to issue)
Unless you are satisfied beyond a reasonable doubt (NOA) committed the offence of (specify) for the benefit of, at the direction of, or in association with the criminal organization (or specify), you must find (NOA) not guilty of this charge. Your deliberations would be over.
If you are satisfied beyond a reasonable doubt that (NOA) committed the offence of (specify) for the benefit of, at the direction of, or in association with the criminal organization alleged in the count, you must go on to the next question.
To prove that (NOA) had this state of mind, the Crown must prove beyond a reasonable doubt that (NOA) committed the offence of (specify) in one or more of the following circumstances:
You do not have to be satisfied that (NOA) had all three of these states of mind. It is sufficient that you are satisfied beyond a reasonable doubt that (NOA) had one or more of them. You do not all have to agree on which of them (NOA) had as long as each of you is satisfied beyond a reasonable doubt that (NOA) had one of them.
(Review relevant evidence here)
Unless you are satisfied beyond a reasonable doubt that (NOA) committed the offence of (specify) with the necessary state of mind, you must find (NOA) not guilty.
If you are satisfied beyond a reasonable doubt that (NOA) committed the offence of (specify) with the necessary state of mind, you must find (NOA) guilty.
In summary[21], you must find (NOA) not guilty unless you are satisfied beyond a reasonable doubt that:
1. (NOA) committed (specify the indictable offence alleged in the count), and
2. There was a criminal organization (if the organization is named in the count, then this element should be worded that “There was a group named (specify), and it was a criminal organization”), and
3. (NOA) knew the group (or specify) had the characteristics that make it a criminal organization,[22] and
4. (NOA) committed the offence (specify) for the benefit of, at the direction of, or in association with a criminal organization (or specify), and
5. (NOA) committed the offence (specify) with the necessary state of mind (or specify).
If any one of these essential elements has not been proved beyond a reasonable doubt, [or if you have a reasonable doubt with respect to (specify defences)], your verdict must be not guilty.
You must find (NOA) guilty of this charge if you are satisfied beyond a reasonable doubt of all of the following essential elements [and you have no reasonable doubt after considering (specify defences)]:
1. (NOA) committed (specify the indictable offence alleged in the count), and
2. There was a criminal organization (if the organization is named in the count, then this element should be worded that “There was a group named (specify), and it was a criminal organization”), and
3. (NOA) knew the group (or specify) had the characteristics that make it a criminal organization,[23] and
4. (NOA) committed the offence (specify) for the benefit of, at the direction of, or in association with a criminal organization (or specify), and
5. (NOA) committed the offence (specify) with the necessary state of mind (or specify).
[1] This instruction should follow the wording of the indictment, eg, “for the benefit of” or “at the direction of” or “in association with”. This instruction has been drafted on the assumption that the indictment alleges all three possibilities. If the indictment alleges only one or two of these possibilities, then paragraphs [1], [2] and [6] must be modified accordingly.
[2] R. v. Terezakis, 2007 BCCA 384, at para 60.
[3]This instruction will have to be modified where the accused has a legal burden of proof, such as mental disorder and non-insane automatism.
[4] For the purpose of s. 467.11 through s. 467.13, the Criminal Code defines “commission” in s. 467.1 (3), as follows: “committing an offence means being a party to it or counselling any person to be a party to it”. Depending on the circumstances, it may be necessary to explain this expanded meaning of “commission”. See ss. 21 and 22 of the Code for the definitions of “party” and “counselling” respectively.
[5] There are some issues that arise from this section that have not been addressed in the case law. In particular, if the indictable offence alleged in the count is charged separately in the indictment and the jury acquits of that offence but convicts of a lesser included offence or attempt, does the criminal organization charge fail as a result? For example, it might be argued that if the indictment alleges murder for the benefit of a criminal organization and the Crown proves manslaughter, but not murder, that the Crown has failed to prove what was alleged in the indictment. Furthermore, if the underlying offence for which (NOA) is found guilty cannot be committed with the requisite mens rea for the criminal organization offence, does the criminal organization charge necessarily fail?
[6] In R v Abdullahi, 2023 SCC 19 at para 88, the Supreme Court of Canada noted: “The existence of a criminal organization is a required element of the offence of participation in the activities of a criminal organization. An instruction on this element is therefore mandatory. The alleged criminal organization must have structure and continuity to give rise to the sort of enhanced threat to society that Parliament has sought to combat. Therefore, in order for the jury to be sufficiently equipped to decide whether a criminal organization existed, the instruction must include an explanation of structure and continuity.”
[7] In R v Abdullahi, 2023 SCC 19, the Supreme Court of Canada stated that the definition of a criminal organization is flexible. However, it cautioned:
“The flexibility with which the definition of a criminal organization is applied must not become an invitation for irrelevant considerations or improper reasoning. The risk of improper reasoning is especially acute where an accused is a member of a marginalized community, underrepresented among police, lawyers, jurors, or the judiciary, and whose characteristics and practices may well be less familiar and possibly the subject of biases, prejudices, or stereotypes among those tasked with enforcing the law and passing judgment. The courts have recognized the risks of racial bias or stereotypical reasoning, including subconscious biases, in the criminal justice system (see, e.g., R. v. Williams, [1998] 1 S.C.R. 1128, at paras. 21-22; R v Barton, 2019 SCC 33 at paras. 195-97). Just as the definition of a criminal organization must not be limited to stereotypical models of organized crime, care must also be taken not to identify a criminal organization merely because the group appears to satisfy some stereotypical model. The trier of fact’s focus when tasked with identifying a criminal organization needs at all times to remain fixed on whether the particular group in question possesses the distinguishing qualities of a criminal organization, i.e., structure and continuity.
Trial judges play an important role in combatting biases, prejudices, and stereotypes in the courtroom (Barton, at para. 197). A suitable instruction on the requirements for a criminal organization is part of this. Under the general rules of evidence, courts can exclude evidence that is not relevant to this inquiry or where the prejudicial effect of the evidence would outweigh its probative value. Trial judges should provide a warning to juries of the risks of subconscious bias or improper reasoning where the circumstances warrant such a caution (para. 200)” (at para 85, 86). (See also General Anti-bias Instructions 3.1.1.)
[8] In R v Abdullahi, 2023 SCC 19, the Supreme Court of Canada held that structure and continuity are essential features of a criminal organization. It stated: “The purpose of the Criminal Code’s criminal organization regime is to identify and undermine groups that pose an enhanced threat to society due to the institutional advantages of structure and continuity” (para 78).
[9] The Criminal Code specifies that the persons in the group may be in or outside Canada (s. 467.1(1)(a)).
[10] The Criminal Code states “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” (s. 467.1 (1)(b)). Depending on the circumstances, it may be necessary to give an expanded explanation of “benefit” in this instruction.
[11] Where there is evidence that the group was involved in legitimate purposes or activities, as well as criminal pursuits, the jury should be instructed that it need only find that the commission or facilitation of criminal offences was one of the group’s main purposes or activities (R. v. Terezakis, 2007 BCCA 384, at para 59).
[12] For the purpose of s. 467.11 through s. 467.13, the Criminal Code defines “commission” in s. 467.1(3), as follows: “committing an offence means being a party to it or counselling any person to be a party to it”. Depending on the circumstances, it may be necessary to explain this expanded meaning of “commission” and to amend the instructions accordingly. See ss. 21 and 22 of the Code for the definitions of “party” and “counselling” respectively.
[13] The Criminal Code defines “serious offence” in s. 467.1 (1) as “an indictable offence under this or any other act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.”
[14] This instruction reflects the shared meaning of the English word “material” and the French word “matériel” which excludes some synonyms of the English word “material”.
[15] R. v. Terezakis, 2007 BCCA 384, at para 60.
[16] Where wilful blindness is an issue, this instruction should include the words “or was aware of indications that the group (or specify) had those characteristics but deliberately chose to ignore them because s/he did not want to know the truth”. See R. v. Briscoe, 2010 SCC 13.
[17] This instruction should follow the wording of the indictment, eg, “for the benefit of” or “at the direction of” or “in association with”. This instruction has been drafted on the assumption that the indictment alleges all three possibilities. If the indictment alleges only one or two of these possibilities, then paragraphs [1], [2] and [6] must be modified accordingly.
[18] The New Oxford Dictionary of English and Black’s Law Dictionary (7th ed).
[19] R. v. Venneri, 2012 SCC 33, at para 54-55.
[20] This paragraph reflects the view that the accused must have, as his or her purpose, and not merely know, that the commission of the offence will benefit the criminal organization. This is based on case law developed to this point; however, it has not been settled: R. v. Lindsay, 2004 CANLII 16094 (Ont. S.C.J.) at para 64; R. v. Pereira, 2008 BCSC 184 at para 169; R. v. Cedeno, 2010 QCCA 2359 at para 51. Paragraph 64 of Lindsay, above, was cited with approval on the issue of vagueness and overbreadth in R. v. Lindsay, 2009 ONCA 532, at para 32.
[21] Depending on the complexity of the case, it may be necessary to remind the jurors what the essential elements of the offence are.
[22] R. v. Terezakis, 2007 BCCA 384, at para 60.
[23]R. v. Terezakis, 2007 BCCA 384, at para 60.