Opinion: Modernize the legal system to confront 21st-century organized crime

National Post

12 hours ago

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The Jordan framework is a set of legal principles that determine whether a criminal trial has been delayed unreasonably, resulting in a rights violation. It enforces strict trial timelines of 18-30 months, forcing the dismissal of complex cross-border cases that in the U.S. could proceed under exceptions in the Speedy Trial Act.
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The Stinchcombe disclosure rule requires the Crown to share virtually all evidence publicly, deterring the use of intelligence from our allies in court for fear of compromising sources. Our allies employ measures like public interest immunity or classified information procedures to protect sensitive data.
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Our organized crime provisions are similarly out of step. The Criminal Code sections pertaining to organized crime (467.1–467.13) require proof of a rigid organizational structure and a benefit motive, a framework ill-suited to the decentralized, cell-based and digital networks driving today's transnational crime. In contrast, the U.S. RICO Act targets patterns of criminal behaviour, allowing prosecutions of crime leaders and facilitators in loosely co-ordinated syndicates.
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Financial enforcement is equally weak. Between $45 billion and $113 billion is laundered in Canada each year, with British Columbia's Cullen Commission estimating that upwards of $5.3 billion is laundered through B.C. real estate every year.
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The absence of a robust beneficial ownership registry leaves shell corporations and trusts as attractive vehicles for ' snow-washing ' illicit funds. FINTRAC's limited proactive authority contrasts sharply with the U.S. FinCEN 's ability to issue geographic targeting orders, freeze assets and compel cross-jurisdictional disclosure.
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Jurisdictional gaps and enforcement silos further undermine our defences. Ports, airports and rail hubs often fall outside the authority of municipal and provincial police unless complex memoranda of understanding are in place, leaving vulnerabilities that organized crime exploits.
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Intelligence is likewise siloed, with CSIS unable to readily convert its intelligence into admissible evidence — a problem the U.K. mitigates through closed-material proceedings.
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Canada also lacks the means to compel internet service providers, payment processors and banks to sever support to foreign criminal enterprises, while the European Union's Digital Services Act — an overly restrictive act we should not strive to emulate overall — contains important elements, such as provisions empowering member states to force takedowns of criminal platforms.
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To address these gaps, Canada should introduce targeted carve-outs to the Stinchcombe disclosure requirements and the Jordan timelines for organized crime and national security cases and create secure protocols for using allied intelligence in prosecutions.
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The Criminal Code's organized crime sections should be modernized to include enforcement against decentralized networks alongside stronger wiretap and production order powers for digital and offshore data.
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Financial transparency must be improved through a more robust and enforceable beneficial ownership registry and expanded FINTRAC powers.