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

Canada’s legal toolkit is outdated, inadequate and built for an era that bears no relation to today’s sophisticated criminal landscape. The head of the Canadian Association of Chiefs of Police, Thomas Carrique, reinforced this grim reality last week.

Carrique warned that “geopolitical instability and social unrest” have forced law enforcement to try to combat transnational crime, extremism, drug trafficking and online exploitation with tools never designed for such challenges.

Loopholes as trivial as the inability to secure a warrant for a Canada Post parcel under 500 grams — despite its capacity to hold lethal fentanyl — highlight the disconnect between legal thresholds and criminal realities.

Police have been flagging these issues for 30 years, but warnings went unheeded. Now, like several other issues, it has taken unpleasant pressure from U.S. President Donald Trump to wake Canadians up to these issues. Bill C-2, the strong borders act, is only a start; real reform requires we go much further.

Today’s threats are not limited to the Hell’s Angels or traditional mafias. Foreign state actors now exert unprecedented influence over organized crime in Canada and the United States, exploiting criminal networks as tools of hybrid warfare.

Whether it’s raging antisemitism, hate crimes and violent protests, opioid supply chains and illicit drugs, surging auto theft or violent crime and gang-related violence, foreign-influenced organized crime is increasingly interwoven into our public safety challenges. Yet our laws treat them as isolated domestic crimes, leaving police and prosecutors hamstrung.

Canada’s high thresholds for searches, surveillance and due process exist to protect rights, public trust and human dignity. But modern threats demand targeted carve-outs for organized crime and national security — preserving core rights while removing the handcuffs from those tasked with defending them.

Canada’s legal architecture has failed to keep pace with the evolving reality of hybrid threats and transnational organized crime. We impose high thresholds for surveillance and digital data access, even in serious organized crime cases, under Section 8 of the Charter.

Landmark cases such as R. v. Tse and R. v. Spencer restrict even emergency wiretaps and access to internet subscriber data, respectively, without prior judicial authorization. Other democracies, like the United Kingdom, allow bulk data access in comparable contexts.

Immediate access to counsel can prematurely halt interrogations in high-stakes cases — where the United States and Australia permit limited, supervised delays in terrorism and organized crime investigations.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Financial transparency must be improved through a more robust and enforceable beneficial ownership registry and expanded FINTRAC powers.

Jurisdictional loopholes when dealing with federally controlled infrastructure should be closed by granting local police authority and embedding integrated intelligence-law enforcement prosecution teams.

Finally, Canada should adopt a closed-material procedure framework to enable the use of CSIS intelligence in court without compromising national security.

The strong borders act is a start, but it leaves our deep-rooted vulnerabilities untouched. Hybrid threats are already entrenched in our communities, financial systems and infrastructure. Without legal modernization, organized crime will continue to run roughshod over the sovereignty of our nation and the safety of Canadians.

Peter Copeland is deputy director of domestic policy at the Macdonald-Laurier Institute. Cal Chrustie is a former RCMP senior intelligence officer with deep experience in national security and transnational crime.