Judge was required to tell jury criminal organization needs 'structure' and 'continuity,' said court
In failing to properly describe what qualifies as a criminal organization, a trial judge fell short of sufficiently instructing the jury on the applicable legal standard for a charge of participation in the activities of a criminal organization, the Supreme Court of Canada has found.
The court released its decision Friday, July 14. The ruling was seven-to-one, with Justice Suzanne Côté dissenting.
The SCC clarified two areas of the law, says Alexander Ostroff, who acted for the appellant. There is a “meta-level clarification and guidance” for Court of Appeal reviews of potential errors in jury charges. The court also gave specific clarification on how to instruct juries on the definition of “criminal organization” on a charge of participation in the activities of a criminal organization, he says.
In R. v. Abdullahi, 2023 SCC 19, the appellant had been convicted firearms offences and participation in the activities of a criminal organization for the purpose of trafficking weapons. Appealing his convictions, he argued that the trial judge erred in law in his jury instructions. The appellant argued that when explaining the first element of the participation-in-a-criminal-organization offence, which is the existence of a criminal organization, he failed to mention that the organization must have “structure and continuity.” The SCC set out the requirement in R. v. Venneri, 2012 SCC 33.
The Court of Appeal was split. The majority dismissed the appeal and found that jury was properly informed on the structure-and-continuity requirement on account of the evidence and closing arguments. The majority noted that there had been no objection from defence counsel.
But the circumstances of the trial are no substitute for the judge’s duty to properly equip the jury, said Justice Malcolm Rowe, who wrote the reasons for the SCC’s majority.
For the offense of participation in a criminal organization, the Criminal Code defines “criminal organization” in s. 467.1(1). In Venneri, the SCC interpreted Parliament’s intention as requiring that a criminal organization have “some form of structure and degree of continuity” before it is deemed organized and engages the organized crime provisions of the Criminal Code.
The jury in Abdullahi was insufficiently equipped to determine whether a criminal organization existed in the case, and an instruction on this element was mandatory, said Rowe. The judge had recited the definition of a criminal organization from s. 467.1(1), which would have failed to instruct the jurors that “a criminal organization must pose an enhanced threat to society by virtue of its structure and continuity.” The Court of Appeal’s majority lost sight of the “central inquiry on appellate review – whether the jury was properly equipped to decide the case,” he said.
Justice Côté would have dismissed the appeal, finding that the judge properly informed the jury that they had to decide whether Abdullahi was a member of a group that “was organized, existed for some period of time, and went beyond one formed randomly for the immediate commission of a single offence.” The judge’s jury charge “was not perfect” but using the words “structure” and “continuity” would not have made any difference in the explanation of the definition of criminal organization, she said.
The recitation of s. 467.1(1), from which the jury would have understood that the group had to be “organized” to be a criminal organization, would have done the trick, said Côté.
“Jurors do not check their common sense at the door of the deliberation room. The jury would have understood ‘organized’ to necessarily connote some form of structure and co‑ordination.”
