Section 467.1(1) of the Criminal Code defines a criminal organization, as follows:
“criminal organization” means a group, however organized, that
(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities 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.
It does not include a group of persons that forms randomly for the immediate commission of a single offence.
The determination of whether the existence of a criminal organization has been established is a highly factual one. The guiding question in assessing whether a group of individuals forms a criminal organization is whether the group poses an elevated threat to society due to the ongoing and organized association of their members. Every criminal organization will involve a conspiracy but not every conspiracy is a criminal organization.
Stereotypical hallmarks such as territoriality, hierarchy, exclusive membership and violence, are indicia of a criminal organization, but are not necessary conditions. Rather, courts must take a flexible approach, appreciating that criminal organizations have no incentive to conform to any formal structure.
Courts have found that criminal organizations exist even in small drug operations, where they involve a division of labour, temporal continuity, and an intention by the members to advance their illicit goals through the organization.
No criminal organization can be said to exist where a group of people have an elaborate scheme and they divide labour but there is no evidence of any continuity beyond the one isolated scheme: R v Saikaley, 2017 ONCA 374 at paras 117-127