Court of Appeal of Quebec

Cabezas c. R.

October 03, 2018

500-10-005386-139 et als.

Bich, Kasirer, C. Gagnon

Appeals from convictions. Dismissed. Appeals from sentencing. One appeal allowed in part and the other two appeals dismissed.

The appellants appeal from judgments rendered by the Court of Quebec convicting them on various charges related to conspiracy to import several hundred kilograms of cocaine from South America into Canada and imposing sentences in this respect. In particular, they submit that the trial judge erred by confusing the concepts of “conspiracy” and “criminal organization.”

The definition of a criminal organization provided by s. 467.1(1) of the Criminal Code, (R.S.C. (1985), c. C-46) is intentionally flexible, so that it can be applied to organizations that do not necessarily correspond to the accepted stereotypical model of organized crime, while promoting the legislative objective of the provision, which is to identify or undermine groups that pose an elevated threat to society due to the ongoing and organized association of their members.  However, this flexible approach must not strip the concept of its essential attributes by including all crimes committed by three or more persons for a material benefit, an activity already criminalized under the provisions respecting conspiracy, accessories, and common intention. Some circumstances stand as common indicators of the presence of these two distinct legal situations because, even if every criminal organization involves a conspiracy to commit serious criminal offences, as the Ontario Court of Appeal noted in R. v. Saikaley (Ont. C.A., 2017-05-10, 2017 ONCA 374, SOQUIJ AZ-51390842), not every conspiracy is a criminal organization. The two concepts are essentially differentiated by the need for a criminal organization to have some form of structure and continuity.

In this case, the trial judge was correct in concluding that all of the attributes of a criminal organization were present, and that the appellants were participants in it. Indeed, the evidence establishes the role of each of them within the organization and the links of interdependency that tie them to the other members in the pursuit of their common illegal goals, each one playing a complementary and critical role for the success of those goals. Furthermore, the evidence establishes that the organization had the structure, hierarchy, and continuity required to constitute a criminal organization. Although certain circumstances taken in isolation are similar to those generally specific to a conspiracy, an analysis of the indicators in light of the global context of the case, including in particular the role of the agents and the short- and long-term goals of the group, reveals a two-tier organizational structure, one for setting up financial and logistical structures, and the other for the actual import and export of the drugs. 

*Summary by SOQUIJ
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