Case Explained: In fighting organized crime, Canada is losing its way – Legal Perspective

Neil Boyd is chair of the board of directors of the Vancouver-based, UN-affiliated International Centre for Criminal Law Reform.

When I started to study crime, almost 50 years ago, I thought that our responses to most forms of criminality were overly punitive. But about 20 years ago, I began to question this belief after analyzing the circumstances of the victims of the Eron mortgage fraud, which involved more than 3,000 individuals in B.C. who lost hundreds of millions of dollars in the 1990s.

The suffering of these victims took the shape of financial ruin, the ends of marriages, suicides, and serious illnesses. The perpetrators of this $240-million Ponzi scheme, Brian Slobogian and Frank Biller, received sentences of six years and three years’ imprisonment, respectively, but they were both released from jail in less than a year, profiting from society’s impression that financial crime is not as great a threat as violent crime.

Fast forward to the present, and criminal trials that used to take a month can now run for two years or more. The unintended consequences of two Supreme Court decisions – R. v. Stinchcombe, in 1991, and R. v. Jordan in 2016 – are largely responsible for this.

The decision in Stinchcombe some 30 years ago was appropriately heralded as a step forward at the time. The Court ruled that prosecutors were now required to release all relevant evidence to the defence team, even if the prosecution didn’t plan to use that evidence at trial. But in the years since, the process of disclosure has become something of a nightmare, given the digital world that we now inhabit.

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With encrypted cellphones, videos of police arrests, police body-cam footage, wiretaps and more, the Crown has now found itself having to compile and review literally thousands of pages of the evidence that often accumulates during an investigation, requiring months, if not years, of effort. The beneficiaries of this change are organized criminal networks with abundant illicit capital, who can use this process to legally question, delay, or attempt to thwart effective prosecution.

And then, in 2016, along came the Jordan decision, setting presumptive time limits on these complex cases. Failures to meet these time limits have ultimately led to the abandonment of hundreds of prosecutions. The clock starts ticking once a charge has been laid and concludes at the end of the criminal trial. The majority in Jordan held that the presumptive time limit for this clock is 18 months for provincial courts, and 30 months for superior courts.

But the consequences of this reality can be more than the abandonment of prosecutions. To avoid starting the clock, the laying of charges is often delayed, which means that dangerous individuals, some of whom are involved in organized crime, are being released back into the community while the lengthy process of disclosure unfolds.

We need to recognize that the digital world has given wings to transnational organized criminal networks, and that our responses need to change if we are going to be able to respond effectively to this threat. We have to find some ways to simplify and expedite the process of disclosure, possibly through technological innovations and perhaps analogous to the mechanisms of artificial intelligence. Legislative amendments to the Criminal Code are another possibility.

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Further difficulties we face include the delays caused by the judicial expansion of the concept of privacy. In an era where citizens are constantly and voluntarily diminishing their expectations of privacy in online settings, it seems incongruous that we are using the provisions of the Charter to move in the opposite direction in our response to organized crime.

For example, in the 2024 decision of the Supreme Court in R. v. Bykovets, a 5-4 majority found that while police access to an IP address does not provide them with the identity of a subscriber, it nonetheless gives rise to an expectation of privacy. As a result, police must now obtain prior judicial authorization before they make any request for an individual’s IP address from a service provider, even though that information does not identify any individual.

Put differently, we need to find a better balance between the need to respond rapidly and effectively to the predatory nature of organized crime, and the privacy interests of all Canadians, given the current context in which we are confronting this complicated reality.

As we have seen with the second presidency of Donald Trump, we are now living in a world where both democracy and the rule of law are under threat, and where organized criminality – whether by design or neglect – is being given the tools to allow it to flourish. We must do better up here in Canada.