LE PARTICULARISME JURIDIQUE DE LA REPRESSION DE LA CRIMINALITE ORGANISEE AU CANADA

Authors

  • PIERRE RAINVILLEETJULIE DESROSIERS

Abstract

Organized crime has inherited an atypical legal framework : unique offences with an elusive morphology, the unorthodox attribution of vicarious liability, the suppression of certain exculpatory lines of defence and even a broader definition for classic types of incrimination. This differentiated legal framework is dedicated to amplifying the criminal liability reserved for criminal organizations and their henchmen. Added to this expanded liability are exceptional investigative methods and a penological interventionism that are the expression of the phenomenon of eroding judicial discretion. This paper attempts to identify the basic characteristics of this fundamental restructuring of criminal liability. Its remarkable characteristics include the considerable forestalling of the repressive phase; the advent of liability that has become primarily collective; a turning away from classic concepts like complicity and causation in favour of a weakening of the elements of the offences; and a wider net for those this unusual framework is aimed at. Current provisions of the Code actually penalize the mere fact of making oneself available for a potential collective crime. However, the increase in criminal liability in the case of collective illegal acts is not without its bounds. This paper also identifies the criteria designed to better circumscribe the increased liability of those involved in a crooked scheme. With the aid of terms such as “recklessness,” “degree of involvement” and “degree of moral culpability,” the authors recommend that the moral turpitude displayed by the accused mirror the exact nature of the crime for which a conviction is entered : sharing in the deed does not necessarily suffice to incur shared liability.

Keywords:

Conspiracy, Criminal Law, Criminal Organization, Terrorism, Necessity, penology, responsability acts of others

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Published

2011-11-01

Issue

Section

Legal Commentary