PART I

STATEMENT OF FACTS

1. On December 14, 2006, Madam Justice Prowse granted the British Columbia Civil Liberties Association (“the BCCLA”) leave to intervene in this appeal.

2. The BCCLA makes no submissions on the facts of this case.

PART II

ISSUE ON APPEAL

3. Did the learned trial Judge err in concluding that section 467.13 of the Criminal Code infringes section 7 of the Charter?

PART III

ARGUMENT

Introduction

4. The BCCLA submits that this appeal raises issues of fundamental importance to liberty interests. The BCCLA submits that rigorous Charter scrutiny of the criminal organization provisions in the Criminal Code is critical to maintenance of a free and democratic society. The BCCLA’s submissions are summarized as follows:

I. While the objectives of the criminal organization provisions of the Criminal Code are important, their pressing nature cannot undermine the need for rigorous Charter scrutiny of section 467.13;

II. Too narrow a conception of the principles of vagueness and overbreadth put critical liberty interests at significant risk;

III. Due to the severe penalties attached to section 467.13, this provision must be subject to a particularly stringent vagueness and overbreadth analysis;

IV. The purposes of section 467.13 should be construed as targeting those in a leadership position in regard to the serious crime activities of a criminal organization; and,

V. Section 467.13 is highly vulnerable to the principles of vagueness and overbreadth because of its broad scope in the context of its severe penalties. The provision fails to target those in a true leadership position in a criminal organization and fails to reasonably limit the discretion of law enforcement.

I. Limiting the Degree of Deference Based on the Legislative Objective

5. The criminal organization provisions of the Criminal Code have important and pressing objectives, including protecting society from the serious harm caused by criminal gangs. While the importance of an objective can be relevant to the assessment of a legislative provision under the Charter, the BCCLA submits that it is critical that the importance of the legislative objectives in this case not be permitted to insulate s. 467.13 from rigorous Charter scrutiny.

6. The Supreme Court of Canada has affirmed on a number of occasions that the presence of a pressing and broadly supported legislative objective does not translate into a more limited constitutional scrutiny of the legislative provisions. For example, in R.J.R. Inc. v. Canada (A.G.), infra, the legislation in issue was aimed at protecting persons from the serious health risks of tobacco use by deterring them from smoking. McLachlin J. (as she then was), in one of the concurring judgements on the Charter issue, held that the importance of a legislative objective does not negate the need for a close overbreadth scrutiny of the legislative provisions:

The courts are no more permitted to abdicate their responsibility than is Parliament. To carry judicial deference to the point of accepting Parliament’s view simply on the basis that the problem is serious and the solution difficult, would diminish the role of the courts in the constitutional process and weaken the structure of rights upon which our constitution is founded.

....

Even on difficult social issues where the stakes are high, Parliament does not have the right to determine unilaterally the limits of its intrusion on the rights and freedoms guaranteed in the Charter.

...

...care must be taken not to devalue the need for demonstration of

minimal impairment by arguing that the legislation is important and

the infringement of no great moment. [emphasis added]

- R.J.R. Inc. v. Canada, [1995] 3 S.C.R. 1999, 100 C.C.C. (3d) 449

(S.C.C.) at paras. 136, 168-169

7. As Iacobucci J. further held in Vriend v. Alberta, infra, the role of the courts under the Charter requires them to invalidate certain laws that may enjoy widespread societal support even “...if such decisions may not be universally acclaimed.”

- Vriend v. Alberta, [1998] 1 S.C.R. 493 at paras. 136, 140

8. The Supreme Court of Canada has struck down legislation, or certain portions of legislation, which have the most pressing public objectives, including addressing the widespread harm caused by the importing and trafficking of hard drugs, protecting children from harm, and deterring the use of firearms in offences.

- R. v. Vaillancourt, [1987] 2 S.C.R. 636, 39 C.C.C. (3d) 1 at p. 139

- R. v. Smith, [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97 at p. 123-124, 145

-R. v. Heywood, [1994] 3 S.C.R. 961, 94 C.C.C. (3d) 481 at 517

-R. v. Hess, [1990] 2 S.C.R. 906, 59 C.C.C. (3d) 161 at 172

9. It is submitted that this principle of the need for rigorous Charter scrutiny of legislation with even the most important objectives has also been demonstrated in regard to the provisions of the Anti-Terrorism, S.C. 2001, c. 41. While this legislation, enacted after the events of September 11, 2001, clearly has the most pressing objective of deterring and detecting terrorist activity, the Supreme Court of Canada and other courts have set out that the validity and breadth of its provisions are limited by the Charter. In R. v. Bagri, infra, due in part to the influence of Charter values, the Supreme Court interpreted the investigative detention provisions of the Anti-Terrorism Act as providing the hearing judge with broad powers to protect the interests of the subject of the hearing and to ensure the fairness of the hearing. Further, two trial courts in Ontario recently found that certain provisions passed or re-enacted under the Anti-Terrorism Act fail Charter scrutiny. Finally, the Supreme Court of Canada recently struck down the “security certificate” scheme of the Immigration and Refugee Protection Act, S.C. 2001, which had permitted the detention and deportation of non-citizens on a number of grounds, including connection to terrorist activities. The Court found that the secrecy procedures in the scheme, while based on the objective of protecting national security, did not conform to section 7 of the Charter and did not provide an adequate basis for a detainee to defend him or herself. These decisions provide pointed illustrations of the principle that even the most compelling legislative objectives, including those engaging public safety and state security, do not immunize the legislation”s provisions from close Charter scrutiny.

- Charkaoui v. Canada 2007 SCC 9

- R. v. Bagri, [2004] 2 S.C.R. 248,184 C.C.C. (3d) 449 (S.C.C.)

- O’Neill v. Canada (2006), 213 C.C.C. (3d) 389 (O.S.C.)

- R. v. Khawaja, [2006] O.J. No. 4245 (O.S.C.)

II. Nature of the Vagueness and Overbreadth Test

10. The BCCLA submits that the principles of vagueness and overbreadth are of fundamental importance to liberty interests, and that an overly narrow conception of these principles puts those interests at risk.

I. Risk to the Rule of Law by too Narrow a Conception of Vagueness

11. The doctrine of vagueness is commonly associated with the two rationales of providing fair notice to citizens of proscribed conduct, and limiting the discretion of law enforcement. However, underlying these two rationales is the core principle of the maintenance of the rule of law. In R. v. Nova Scotia Pharmaceutical Society, infra, Gonthier J. held:

The two rationales of fair notice to the citizen and limitation of enforcement discretion have been adopted as the theoretical foundations of the doctrine of vagueness, here (Prostitution Reference and Committee for the Commonwealth of Canada) as well as in the United States (see Grayned v. City of Rockford, 408 U.S. 104 (1972), at pp. 108‑9) and in Europe, as will be seen later. These two rationales have been broadly linked with the corpus of principles of government known as the "rule of law", which lies at the core of our political and constitutional tradition. [emphasis added]

- R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 74 C.C.C. (3d) 289 at p. 306

12. The relationship between the doctrine of vagueness and the rule of law was re-iterated by the Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v. Canada, infra, where McLachlin C.J.C. held as follows:

A law must set an intelligible standard both for the citizens it governs and the officials who must enforce it. The two are interconnected. A vague law prevents the citizen from realizing when he or she is entering an area of risk for criminal sanction. It similarly makes it difficult for law enforcement officers and judges to determine whether a crime has been committed. This invokes the further concern of putting too much discretion in the hands of law enforcement officials, and violates the precept that individuals should be governed by the rule of law, not the rule of persons. The doctrine of vagueness is directed generally at the evil of leaving "basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application": Grayned v. City of Rockford, 408 U.S. 104 (1972) at p. 109. [emphasis added]

- Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, 180 C.C.C. (3d) 353 at para. 16.

13. The rule of law not only underlies all of the rights and freedoms in the Charter, but it further is a fundamental pillar of a democratic system of government. In B.C. v. Imperial Tobacco v. B.C., infra, Major J. summarized the importance of the rule of law to our society as follows:

The rule of law is "a fundamental postulate of our constitutional structure" (Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 142) that lies "at the root of our system of government" Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70). It is expressly acknowledged by the preamble to the Constitution Act, 1982, and implicitly recognized in the preamble to the Constitution Act, 1867: see Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 750.

This Court has described the rule of law as embracing three principles. The first recognizes that "the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power": Reference re Manitoba Language Rights, at p. 748. The second "requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order": (Reference re Manitoba Language Rights, at p. 749. The third requires that "the relationship between the state and the individual ... be regulated by law": Reference re Secession of Quebec, at para. 71.

- B.C. v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473

at paras. 57-58

14. It is submitted that vague laws which deprive persons of their liberty directly engage the rule of law principles of preventing the arbitrary use of power and ensuring clarity in the state’s regulation of individual conduct.

15. The maintenance of the rule of law is particularly challenged in state responses to grave threats to public safety. As the Supreme Court of Canada held in R. v. Bagri, it is in these very circumstances that it is most imperative for the rule of law to be maintained:

Although terrorism necessarily changes the context in which the rule of law must operate, it does not call for the abdication of law. Yet, at the same time, while respect for the rule of law must be maintained in the response to terrorism, the Constitution is not a suicide pact, to paraphrase Jackson J.: Terminiello v. Chicago (City), 337 U.S. 1 (1949), at p. 37 (in dissent).

Consequently, the challenge for a democratic state's answer to terrorism calls for a balancing of what is required for an effective response to terrorism in a way that appropriately recognizes the fundamental values of the rule of law. In a democracy, not every response is available to meet the challenge of terrorism. At first blush, this may appear to be a disadvantage, but in reality, it is not. A response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy. [emphasis added]

As Binnie J. noted in his dissenting judgment in R. v. Bagri, where legislative provisions are part of a “war” against a certain evil, there is a greater pressure to apply a less onerous standard of judicial review:

At what point, if at all, should principle yield to expediency in the "war on terror"? That is a key issue not only in this case but in all the cases to follow where the decision in this case to uphold as proper the Crown's use of s. 83.28 for discovery will be cited as a precedent.

.

It is comparatively painless for a society to support the procedural rights of an accused when the stakes are small. It is when the stakes are high, as here, that our commitment is truly tested. [emphasis added]

- R. v. Bagri, supra, at paras. 6-7, 128;

- see also Charkaoui v. Canada, supra, at paras. 1, 19-27

16. The BCCLA submits that similar challenges arise in state responses to the significant harm caused by criminal organizations. These organizations are perceived as posing a significant threat to public safety, and the state has invoked unique offences and procedures to combat this particular problem. It is in these very circumstances that adherence to the rule of law is most tested and is most critical.

17. A number of authorities have set out that are high thresholds for establishing a violation of the vagueness principle, that the legislation is not required to define with perfect clarity the scope of its provisions, and that it is “exceedingly rare for a law to be declared unconstitutional on the basis of vagueness.” [see Appellant’s Factum at para. 24] The BCCLA submits, however, that the flexibility and deference accorded to the legislature under the vagueness principle must be not be over-emphasized. Formulations of the test for vagueness which accord an almost unlimited discretion to the legislature to use broad and general language in penal provisions is inconsistent with the rule of law. It is submitted that an overly flexible formulation of the vagueness standards can have the effect of making this principle of justice an illusory right. As Lamer J. (as he then was) held in Nelles v. Ontario, infra, “[t]o create a right without a remedy is antithetical to one of the purposes of the Charter which surely is to allow courts to fashion remedies when constitutional infringements occur.” It is submitted that rendering the principle of vagueness effectively illusory not only imperils the interests of fair notice to the public and limits on the discretion of law enforcement, but puts at risk the very rule of law.

- Nelles v. Ontario, [1989] 2 S.C.R. 170 at para. 50

18. The BCCLA accordingly submits that while the test for vagueness clearly does provide some flexibility to Parliament, the standard requiring that the legislation “sufficiently delineate an area of risk to allow for substantive notice to citizens” must be read as requiring the use of legislative terms which provide a significant degree of clarity concerning the boundaries of the prohibited conduct.

ii. Overbreadth Requires that Criminal Code Provisions be Carefully Tailored

19. The principle of overbreadth provides a critical mechanism for protecting individuals from infringements of their liberty which are not necessary for the state to achieve its legislative objective. The key to an overbreadth analysis, whether carried out under section 7, or as part of the section 1 “minimal impairment” analysis, is whether the legislative means are reasonably necessary to achieve the state’s objective. While the state is not required to use the most minimal means possible to achieve its objective, Criminal Code provisions must be reasonably and carefully tailored to their objective. Legislation will be overbroad where the means used to achieve an objective are "too sweeping", and where some applications of the law are arbitrary and disproportionate.

- R. v. Heywood, supra at C.C.C. pp. 516-517

- R .v. Sharpe, [2001] 1 S.C.R. 45, 150 C.C.C. (3d) 321 at paras. 95-96

20. Where the terms used in legislation have significant breadth, there is a greater risk that the provisions will not meet the requirement that they be “carefully tailored” to the legislative objective. In R. v. Zundel, infra, McLachlin J (as she then was) held as follows in relation to the section 1 minimal impairment analysis:

Assuming a rational link between the objective of social harmony and s. 181 of the Criminal Code, the breadth of the section is such that it goes much further than necessary to achieve that aim. Accepting that the legislative solution need not be "perfect", it nevertheless must be "appropriately and carefully tailored in the context of the infringed right": Reference re: ss. 193 and 195.1(1)(c) of Criminal Code (Man.) (1990), 56 C.C.C. (3d) 65 at p. 75, [1990] 1 S.C.R. 1123, 77 C.R. (3d) 1. The effect of s. 181 is to inhibit the expression or publication of any statements which may be found by a jury to be factual, false and likely to cause injury or mischief to a public interest. The territory covered by this prohibition can only be described as vast, as revealed by a brief look at the key phrases on which guilt or innocence turns. [emphasis added]

- R. v. Zundel, [1992] 2 S.C.R. 731, 75 C.C.C. (3d) 449 at p. 518

- see also R. v. Heywood, supra, at C.C.C., p. 521

21. The Supreme Court of Canada also affirmed in R .v. Sharpe that while deference needs to be afforded to the legislative choices of Parliament, in regard to criminal offences the legislature must “carefully tailor” the legislative means to the legislative objective:

The respondent also alleges a violation of his right to liberty under s. 7 of the Charter, arguing that exposure to potential imprisonment as a result of an excessively sweeping law is contrary to the principles of fundamental justice. Since this argument wholly replicates the overbreadth concerns that are the central obstacle to the justification of the s. 2(b) breach, it is not necessary to consider it separately.

...

Section 163.1(4), as a criminal offence, carries the heavy consequences of prosecution, conviction and loss of liberty, and must therefore be carefully tailored as a "measured and appropriate response" to the harms it addresses: Keegstra, supra, at p. 771. At the same time, legislative drafting is a difficult art and Parliament cannot be held to a standard of perfection:....It may be difficult to draft a law capable of catching the bulk of pornographic material that puts children at risk, without also catching some types of material that are unrelated to harm to children. This is what McEachern C.J.B.C. had in mind when he suggested that it is difficult to see how Parliament could have drafted the law in a way that eliminated the possibility of "unintended consequences" (para. 292).

This Court has held that to establish justification it is not necessary to show that Parliament has adopted the least restrictive means of achieving its end. It suffices if the means adopted fall within a range of reasonable solutions to the problem confronted. The law must be reasonably tailored to its objectives; it must impair the right no more than reasonably necessary, having regard to the practical difficulties and conflicting tensions that must be taken into account:...[emphasis added]

- R .v. Sharpe, supra, at paras. 18, 95-96

22. In R. v. Clay, infra, the Supreme Court of Canada set out that the test for overbreadth involved an analysis of whether the legislative means are “grossly disproportionate” to the state objective. The BCCLA submits that this standard should not be read as creating a fundamentally different test from that set out in the line of overbreadth / minimal impairment authorities. It is submitted that where a provision is not carefully tailored to its objective, and the legislative means are broader than is reasonably necessary to achieve the legislative objective, the legislative means will be “grossly disproportionate” to the legislative objective.

- R .v. Clay, [2003] 3 S.C.R. 735, 179 C.C.C. (3d) 540 (S.C.C.)

23. It is further noteworthy that in the case of R. v. Demers, infra, which was decided after R. v. Clay, the Court affirmed the Heywood analysis for overbreadth and held as follows:

....the continued subjection of an unfit accused to the criminal process, where there is clear evidence that capacity will never be recovered and there is no evidence of a significant threat to public safety, makes the law overbroad because the means chosen are not the least restrictive of the unfit person's liberty and are not necessary to achieve the State's objective. Accordingly, these sections of the law restrict the liberty of permanently unfit accused "for no reason", to use Cory J.'s words in Heywood, supra, at p. 793.

- R. v. Demers, [2004] 2 S.C.R. 489, 185 C.C.C. (3d) 257 at para. 43

- see also Oneill v. Canada, supra at paras. 31-32

24. The BCCLA accordingly submits that the test for overbreadth should be framed in a manner which requires the legislature to carefully tailor Criminal Code provisions to the legislative objective.

III. Role of the Severity of the Penalty Provisions

25. The BCCLA submits that section 467.13 of the Criminal Code must meet an enhanced standard of clarity due to the severe penalty provisions attached to this offence.

26. The Supreme Court of Canada has set out that the vagueness analysis must be carried out in the full context of the legislative provision, including its nature and subject matter. In R. v. Canadian Pacific Ltd., infra, Gonthier J. held as follows:

Vagueness must not be considered in abstracto, but instead must be assessed within a larger interpretive context developed through an analysis of considerations such as the purpose, subject‑matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial interpretations of the provision. Only after exhausting its interpretive role will a court then be in a position to determine whether an impugned provision affords sufficient guidance for legal debate.

- R. v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 99 C.C.C. (3d)

97 at para. 47

In Canadian Pacific Ltd., the Court found that the social policy objectives of the legislation, the broad vulnerability of health and property interests caused by environmental damage, and the difficulty in precise codification of environmental hazards, warranted a more deferential level of vagueness scrutiny for that legislation.

27. In Reference re: Sections 193 and 195.1(1)(c) of the Criminal Code, infra, Lamer J. (as he then was), in his concurring judgment, held that the requirement for legislative clarity under the vagueness principle has particularly important application to criminal laws:

The principles expressed in these two citations are not new to our law. In fact they are based on the ancient Latin maxim nullum crimen sine lege, nulla poena sine lege ‑‑ that there can be no crime or punishment unless it is in accordance with law that is certain, unambiguous and not retroactive. The rationale underlying this principle is clear. It is essential in a free and democratic society that citizens are able, as far as is possible, to foresee the consequences of their conduct in order that persons be given fair notice of what to avoid, and that the discretion of those entrusted with law enforcement is limited by clear and explicit legislative standards...This is especially important in the criminal law, where citizens are potentially liable to a deprivation of liberty if their conduct is in conflict with the law. [emphasis added]

-Reference re: Sections 193 and 195.1(1) of the Criminal Code [1990] 1 S.C.R. 1123, 56 C.C.C. (3d) 65 (S.C.C.) at p. 86

28. In R. v. Nova Scotia Pharmaceutical Society, supra, the Court further held that it may be appropriate to require that Criminal Code provisions provide a greater degree of specificity under the vagueness analysis:

Finally, I also wish to point out that the standard I have outlined applies to all enactments, irrespective of whether they are civil, criminal, administrative or other. The citizen is entitled to have the State abide by constitutional standards of precision whenever it enacts legal dispositions. In the criminal field, it may be thought that the terms of the legal debate should be outlined with special care by the State. In my opinion, however, once the minimal general standard has been met, any further arguments as to the precision of the enactments should be considered at the "minimal impairment" stage of s. 1 analysis. [emphasis added]

- R. v. Nova Scotia Pharmaceutical Society, supra at C.C.C. p. 313.

29. Closer vagueness scrutiny of Criminal Code provisions, and particularly those with severe penalties, is also consistent with the jurisprudence that the procedural protections provided by section 7 are dependent on the degree of impact on the life and liberty of an individual, and that criminal proceedings require the most vigilant section 7 scrutiny. In Charkaoui v. Canada, McLachlin C.J.C. stated:

The seriousness of the individual interests at stake forms part of the contextual analysis. As this Court stated in Suresh, "[t]he greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter" (para. 118). Thus, "factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts": Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077, per Iacobucci J.

- Charkaoui v. Canada, supra, at para. 25

- see also R. v. Lyons, [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1 at pp. 45-46

- see also Winko v. B.C., [1999] 2 S.C.R. 625, 135 C.C.C. (3d) 129 at para. 66

30. It is accordingly submitted that in determining the appropriate level of vagueness scrutiny, not only should Criminal Code provisions require a higher level of clarity than regulatory statutes, but that particular clarity is required concerning Criminal Code provisions with severe penalty provisions.

31. Section 467.13 has grave implications for liberty interests. First, section 467.13 carries the most severe sentencing provisions of the criminal organization offences. While sections 467.11 and 467.12 have maximum sentences of 5 years and 14 years respectively, a conviction under section 467.13 subjects an accused to life imprisonment. Second, an accused charged or convicted of a criminal organization offence is subject to a host of additional provisions which have serious liberty implications, including consecutive sentences, special parole ineligibility, and reverse onus bail provisions. [see sections 467.14, 515(6)(a), 743.6(1.2) of the Criminal Code; see also A.G.B.C. Factum at para. 16] Third, as the learned trial Judge noted, a conviction for a “criminal organization” offence, and in particular the most serious offence in this category, carries with it an elevated stigma. [Reasons of the learned trial Judge at A.B. pp. 28-29, paras. 52-53]

32. It is submitted that given the severe penalties and stigma which flow from a conviction under section 467.13, this provision requires the highest level of clarity under the vagueness principle.

IV. Limits of the Breadth of the Legislative Objective

33. Defining the objective of legislation is critical to an overbreadth analysis, as the process involves an evaluation of the “... means chosen by the state in relation to its purpose”. [see R. v. Heywood, supra at C.C.C., p. 516] The BCCLA submits that the objective of section 467.13 should not be viewed as encompassing any measures which make it easier to prosecute persons generally associated with criminal organizations.

34. The BCCLA first submits that while the broader purposes of the “criminal organization” provisions are relevant to the Charter analysis in this case, the focus of the analysis of the legislative objective should be that which is specific to section 476.13 of the Criminal Code. It is submitted that this more focused analysis of the objective is particularly appropriate because the learned trial Judge only stuck down this single provision and did not generally strike down the definition of “criminal organization”.

- Rosenberg v. Canada (1998), 158 D.L.R. (4^th) 664 (Ont. C.A.) at para. 23

- Vriend v. Alberta, supra at paras. 109-111

35. The purpose of section 467.13 is to target those in a leadership position in a criminal organization. [see Appellant=s Factum at para. 21; A.G.B.C. Factum at para. 15] It is submitted that when considering section 467.13’s penalty provisions, Parliament’s objective should further be interpreted as focusing on those persons in a leadership position in a criminal organization in regard to the purposes outlined in s. 467.1(1)(b) (Aserious offence purposes or activities’). It is submitted that the aim of section 467.13 is to target and severely punish those who direct others to commit offences for the benefit of the criminal organization in regard to its “serious offence purposes or activities”. It is submitted that the formulation of a broad objective, which includes targeting persons who do not have a leadership role in regard to the serious criminal activity of the group, or who do not even participate or subscribe this purpose, is simply inconsistent with section 467.13’s penalty consequences.

- Reasons of the learned trial Judge, A.B. p. 40, para. 93

36. The more narrow focus of section 467.13's objective is also supported by the fact that the instructed offence need not have been committed for an accused to be convicted. It is submitted that the availability of life imprisonment for the mere fact of an instruction to commit an offence further indicates the intention of Parliament for there to be a significant link between the “serious criminal purposes or activities” of the criminal organization and the section 467.13 offence.

V. Application of Principles to Section 467.13

37. It is submitted that section 467.13 of the Criminal Code is highly vulnerable to the principles of vagueness and overbreadth.

38. First, this provision is not only a Criminal Code offence which requires that the legislative means be carefully tailored to the legislative objective, but it is an offence with severe penalty and stigma implications. This offence brands a person as a “leader” of a criminal organization, and further engages the most serious penalties of any of the criminal organization offences. It is submitted in this context that the vagueness and overbreadth scrutiny must be particularly stringent.

39. In terms of the vagueness analysis, the broad language engaged by this offence is not limited to one term or even one set of terms, but includes a host of vague words and phrases. Section 467.13 sets out that liability will be engaged if a person instructs any person to commit an offence “...for the benefit of, at the direction of, or in association with the criminal organization”. The phrases “for the benefit” and “in association with” are extremely broad and reasonably engage circumstances where there is a very limited link between the offence and the serious criminal aspects of the organization. Further, the additional option of proving the instructed offence was “at the direction of” the criminal organization appears to contemplate almost any circumstance where a member of the group, while in the group setting, instructs another person to commit an offence.

40. This breadth of section 467.13 is then compounded by the fact that a person may be guilty under 467.13 who “directly or indirectly” instructs a person to commit any offence, including federal regulatory offences. Further, the general scope of the offence is broadened by the fact that the Crown does not have to prove that the instructed offence was actually committed, or that the accused instructed a particular person to commit the offence.

41. The sweeping scope of section 467.13 is then further compounded when these already broad terms are connected to the definition of “criminal organization”. It is first submitted that this definition has a host of broad and vague terms and itself does not meet the minimum standard for providing fair notice of citizens and limiting the discretion of law enforcement. [see Respondent’s Factum at paras. 57-110] Further, the objectives and consequences of a section 467.13 conviction necessitate a significant link between the “serious offence purposes or activities” of a criminal organization and an accused charged under this offence. However, the definition of a “criminal organization” provides no such restrictions on the scope of section 467.13. Under the current legislative framework, a person may be a member of the “group, however organized” without adhering to, or participating in, its “serious offence purposes or activities”. As the learned trial Judge noted, unlike the United Nations definition of “organized criminal group”, the “group” is not limited to those who share the group’s aim of committing “serious crimes”. Section 467.1(1) explicitly defines a “criminal organization” as including groups with purposes or activities other than “serious offence purposes or activities”, and section 467.13 further does not require that the accused participate in, or even adhere to, these “serious offence purposes or activities”. Accordingly, as the learned trial Judge held, the definition of “criminal organization”, in the context of a section 467.13 offence, lacks a “unifying purpose” due to the absence of a requirement of a significant link between the instruction to commit an offence and the aims of the group to commit serious criminal offences.

- Reasons of the learned trial Judge, A.B. p. 34, para. 69; pp. 37-38, paras. 84-85; A.B., p. 51, para. 131

42. Further, the nature of the “instructed offence” does not limit the breadth of section 467.13 to circumstances where the accused is significantly connected to the group’s “serious offence purposes or activities”. The authority of the accused does not have to stem from the “serious offence purposes or activities” of the group, the recipient of the instructions does not have to be a member of the group (or even a particular person), the instructed offence includes a host of regulatory offences which might bear little or no relation to the “serious offence purposes or activities” of the organization, and any benefit from the offence may flow to only one person in the group.

43 Section 467.13 accordingly not only has a sweeping breadth, but it also overbroad because it applies to circumstances which fall outside its central objective. A person who instructs another person to commit an offence engages Criminal Code liability, and the issue in this case is whether the circumstances which lead to the severe penalties and consequences of a section 467.13 conviction are clearly defined and reasonably tailored to the provision’s objective. It is submitted that this legislation fails in any sense to target those who are actually in a true leadership position in a criminal gang and subjects a large class of persons, on vague terms, to the most serious criminal consequences. By failing to require a link between the instructed offence and the serious criminal activity in a criminal organization, failing to require that the accused even adhere to the “serious criminal purposes or activities” of the criminal organization, and including regulatory offences in the definition of the instructed offence, it is submitted that section 467.13 simply fails to limit itself to circumstances where the accused would logically be in a leadership position. The provision accordingly exposes those with a peripheral role in the group to the most severe criminal organization penalties, which is both arbitrary and disproportionate.

44 The BCCLA therefore submits that in considering:

$ the vast breadth of numerous terms used in section 467.13 and the definition of a “criminal organization”;

$ the absence of a significant link required between a person accused of a 467.13 offence and the “serious offence purposes or activities” of the organization; and,

$ the severe penalties and consequences of a conviction under s. 467.13,

this provision does not meet the vagueness and overbreadth standards required for Criminal Code provisions under section 7 of the Charter.

PART IV

NATURE OF ORDER SOUGHT

45. That the learned trial Judge’s conclusion that section 467.13 of the Criminal Code of the violates section 7 of the Charter be affirmed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Richard C.C. Peck, Q.C.

Counsel for the Intervener the BCCLA

February 26, 2007

Vancouver, British Columbia

LIST OF AUTHORITIES

Page

B.C. v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473 7

Canadian Foundation for Children, Youth and the Law v. Canada, 6, 7

[2004] 1 S.C.R. 76, 180 C.C.C. (3d) 353

Charkaoui v. Canada 2007 SCC 9 5, 9, 14

Nelles v. Ontario, [1989] 2 S.C.R. 170 9

O=Neill v. Canada (2006), 213 C.C.C. (3d) 389 (O.S.C.) 5

R. v. Bagri, [2004] 2 S.C.R. 248 184 C.C.C. (3d) 449 (S.C.C.) 5, 8, 9

R .v. Clay, [2003] 3 S.C.R. 735, 179 C.C.C. (3d) 540 (S.C.C.) 11, 12

R. v. Demers, [2004] 2 S.C.R. 489, 185 C.C.C. (3d) 257 12

R. . Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 99 C.C.C. (3d) 97 12, 13

R. v. Hess, [1990] 2 S.C.R. 906, 59 C.C.C. (3d) 161 5

R. v. Heywood, [1994] 3 S.C.R. 961, 94 C.C.C. (3d) 481 5, 10, 16

R. v. Khawaja, [2006] O.J. No. 4245 (O.S.C.) 5

R. v. Lyons, [1987] 2 S.C.R. 309, 37 C.C.C. (3d) 1 14

R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 6, 14

74 C.C.C. (3d) 289

R .v. Sharpe, [2001] 1 S.C.R. 45, 150 C.C.C. (3d) 321 10, 11

R. v. Smith, [1987] 1 S.C.R. 1045, 34 C.C.C. (3d) 97 5

R. v. Vaillancourt, [1987] 2 S.C.R. 636, 39 C.C.C. (3d) 118 5

R. v. Zundel, [1992] 2 S.C.R. 731, 75 C.C.C. (3d) 449 10

R.J.R. v. MacDonald, [1995] 3 S.C.R. 1999, 100 C.C.C. (3d) 4

449 (S.C.C.)

Reference re: Sections 193 and 195.1(1)(c) of the Criminal Code 13

[1990] 1 S.C.R. 1123, 56 C.C.C. (3d) 65 (S.C.C.)

Rosenberg v. Canada (1998), 158 D.L.R. (4^th) 664 (Ont. C.A.) 16

Vriend v. Alberta, [1998] 1 S.C.R. 493 4, 16

Winko v. B.C., [1999] 2 S.C.R. 625, 135 C.C.C. (3d) 129 14