Canadian Police College Seminar Series

Perspectives on Organized Crime in Canada

Wednesday, June 21, 2000

Paper titled:

"Facts from Fiction—Tactics and Strategies of Addressing Organized Crime and Organized Criminals"

By

Margaret E. Beare

Director, Nathanson Centre for the Study of Organized Crime and Corruption

INTRODUCTION

I would like to thank the Canadian Police College and my friend, the Director, Tonita Murray for giving me the opportunity to participate in this panel.

It is always fun to come last in a panel line-up so one can point out ‘supportively of course’ the flaws or omissions in the arguments that have come before. Alas---I was rightly denied this enjoyment. I will go boldly first and be corrected I am sure by all of these gentlemen who follow!

In March I spoke to the Australian Federal Police (at the end of a ‘Serious crime" course that Deputy Commissioner Zaccardelli also spoke at). I began by somewhat jokingly saying that the great collaboration in policing across nations was demonstrated by the fact that any criticism of the RCMP that I might make, however far from home, would be conveyed by all means of communication back to the RCMP before my head hit that pillow that night. A friend within the force (yes--I have one) has since informed me that he personally received three copies of my speech from three different sources. Alas, video-conferencing is taking any remaining uncertainty out of the informal communications network within the force!

I was in Australia on that occasion in order to give the plenary presentation at a Transnational Crime Conference in Canberra hosted by the Australian institute of criminology, the Australian Customs Service and the Australian Federal Police. The points that I want to make today, are to some extent an extension of some of the points that I introduced at that meeting. On that occasion I presented what I termed a ‘David Bayley-type’ of list of issues that I argued were essential in order to understand the structure, tactics, or enforcement of transnational crime. Today, I will shorten that list from 8 issues to 3 and speak more directly about the Canadian experience and speak with some urgency about what I see to be serious performance issues with our current policing strategies. To use a much over-used phase—I think policing is in a state of crisis in Canada and some of the cause of this crisis may relate indirectly to the role played by private policing.

The 3 issues that I shall offer as evidence of the crises are:

Changing and tightening linkages between the police and the media—i.e. the dressing up and packaging of organized crime police work in place of quiet/ invisible efficiency. Most remarkable is the contradictions between the secrecy with which Canadian officials—police and government—treat all discussion related to organized crime fact-finding, policies and practices as compared to the near frenzy media coverage at the time of arrests.
Apparently increasing levels of police corruption that one tends to associate with forces such as the NYPD, simultaneous with demands for less accountability, greater policing powers, and an increasingly strong union voice.
Management issues—within both government departments and police forces—that appear to result in strategy-less policy changes.

These three issues are not restricted to organized crime enforcement however, this high-profile issue serves to emphasize these fault-lines.

 

1. Politics, Resources, the Media and Transnational Crime

While most issues related to social control or moral regulation have a political aspect to them, discussions related to organized crime and transnational crime are steeped in politics—from the creation of illegal markets in the first place, to the declarations of the size of the ‘threat’ and the passing into force of extra-ordinary legislation to attack the problem. Rather than ignoring these pressures—or acknowledging them and then ignoring them—government policies and law enforcement strategies instead must see distortion of purpose to be always a possibility and therefore to guard against it. An informed, rather than an entertained public, via the media’s presentation of accurate transnational crime information would be a place to start.

An alternative approach would be to open up discussions about organized crime to include researchers—and also the interested and informed public and practitioners so that the official organized crime rhetoric could be ‘tested’ or at least debated. The current ‘in camera’ House Justice Committee hearings on organized crime, ‘closed’ seminars such as the conference that the Federation of Canadian Municipalities held in April, and the disbanded CACP organized crime committee are all indicative of this secrecy.

I am not of course referring to the type of information that must be kept confidential in order to protect informants or for other clear investigation reasons, but rather the tendency to wrap all organized crime discussions in unnecessary and counter-productive secrecy. While researching illegal migration issues a couple of weeks ago, I again was made aware of the fact that other countries do not treat publicly funded information with the same exclusionary access. A look at the web-sites from Australia immigration and policing agencies reveals real information that can allow for and in fact encourage real open debate. Either our information will not stand up to scrutiny or there is a gain from being able to speak in closed sessions and then publicly announce that the ‘threats’ are growing and that our democratic institutions are being threatened in Canada.

The police, politicians, and media (and hence the public) tend to see the term organized crime and alternatively transnational crime, as an undifferentiated blanket under which most ‘serious’ crimes can be shoved. The concept of organized crime has become mythologized to the point of total distortion, rendering it useless for anything but political mileage and the bargaining for resources by law enforcement. Leading some critics to suspect that those results might have been the objective.

I would argue that this has been true for quite a long time but that more recently we are seeing a greater ‘commodification’ of the concept of organized crime—by governments and by the police and delivered to the public largely by the media. Academics might explain this in terms of neo-liberalism, the withdrawal of the state from certain services and the fact that the public police now have actual competition from the private policing sector.

I completed for my doctoral thesis what most of you would consider extremely tedious content analysis of police media stories (specifically involving the Metropolitan Toronto Police) from 1957 to 1984. We tend now to take for granted that the police have always used the media as their number one method of conveying their successes and demands to the public and to the politicians. This in fact has not always been true. The police went from having almost no presence in the Toronto press, to daily coverage. This change reflected both a change in the nature of the news coverage but also a change in the perception of the police regarding the utility of publicity. A 1981 Hickling-Johnson recommendation to the Toronto police was to ‘carefully channel their information in a ‘useable’ form to the press and to the media in order to ‘yield major gains’. (Beare Thesis, final chapter, draft p. 287).`During the 1980’s one could trace the hiring of ‘professional’ public relations people to serve as the link to the media and the greater sophistication with which the police allowed the media access to their work. Over a relatively few years one saw an increasing involvement of the police in elections and the black-listing of candidates deemed to be unfavourable to the police cause and an escalation of ‘lobbying’ through the media for specific legislation and increasing policing powers.

Where are we now---? The police are no longer willing to allow the media to ‘discover’ their news stories but rather a seemingly essential component of policing is the lengthy press release and news conference and on occasion the media becomes part of the police action. I was taken to task following my Australian paper for not understanding that often the RCMP did not actively seek to include the media in arrests that they might make, but rather that inviting the media to be present at these events was necessary in order to insure that the media would not leak information before the police could obtain their warrants. I thought therefore I should research this to see what the courts were saying about this practice.

Court cases within Canada and within the US speak to the legality (or more accurately, the illegality) of the police ‘inviting’ the media to be present at the culmination of cases. In Regina v. West in the BC Court of Appeal (Judgement rendered December 10, 1997) the judge concluded that the police had ‘allowed, tolerated, may even have encouraged the media to attend and to photograph at least a portion of what took place at the home of the accused’:

"A search in these circumstances was unreasonable because it exceeded the authority of the warrant and it violated, for no investigatory or judicial purpose, the highest possible privacy interest of the accused in the security of his residence. It was unthinkable that officers of the state would undertake a search, even though they had a warrant, when they knew the inside of a private residence would be filmed and probably broadcast for the public."

The judge largely discounted the police view that the CBC might have broadcast what they knew about the case before the warrant could be obtained and therefore the police made a ‘deal’ with the media. While this might have been true—it did not justify the degree of access given to the media and in this particular case the re-entry of the media into the home of the accused after he specified that he wanted them to leave. The judgement in this case quotes from R. v. Dyment :

"The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state".

They concluded that a serious breach of section 8 of the Canadian Charter of Rights and Freedoms had occurred and a new trial was ordered. This case involved West who has been convicted on child-pornography related offenses.

A similar case for the Supreme Court of the United States served also to emphasize the violations that occur when the media takes an active part in police work. Wilson v. Layne involved the Deputy Federal Marshals and their media ‘ride-along’ program. Similar to the Canadian case, it was concluded that when the presence of the third party in the home was not in aid of the warrant’s execution, then the fourth Amendment concerning the privacy of the home is violated. All of the reasons that the Marshals gave:

publicizing the government’s efforts to combat crime;
facilitating accurate reporting of law enforcement activities;
minimizing police abuses; protecting the officers and the suspects

were similar to some of the arguments given by the Canadian police, and were deemed to ‘fall short of justifying media ride-alongs’. The judgement took the opportunity to emphasize the need for rules for the law enforcement community and ground rules for the media. Similar cases occurred in Alberta (Her Majesty the Queen v. B.(R.E.), a youth, May 15, 1997)

A number of embarrassing and expensive cases involve the over-zealous police use of the media:
Frazier v. Purdy in the Ontario Court where the police held a press conference to tell the media about the ‘largest bust of hash oil in Ontario history"—only to have the charges dropped prior to the preliminary hearing and the plaintiffs sued the police (unsuccessfully) for damages, false arrest and malicious prosecution.
The more recent ecstasy "biggest ever" bust would be another example—where the police had to apologize when they discovered that they had made a mistake between metric and imperial measurements when calculating the size of the seizure—two weeks later, an RCMP corporal from BC announced with greater confidence the "biggest ever lab".
The case against Alfonso Caruanna "World’s No.1 Mob Chief" was jeopardized by the invited participation of W5 (CTV) and then the sentencing became controversial when it was discovered that the new sentence was made concurrent with time already served on a previous charge.

While community based rhetoric has emphasized the efficiency/ effectiveness of police actions in terms of ‘problem-solving’, I will argue that organized crime enforcement is currently still about the big seizure/ the dramatic sting operation—often ignored is the impact, if any, of the expensive cases and at the risk of unduly causing fear within the communities.

Nothing I am saying this afternoon is meant in any way to diminish the importance of organized crime and the numerous issues that relate to transnational crimes. In fact the reverse is true. I am suggesting that the situation is serious enough to warrant some even greater action than rhetoric—i.e. the activity that is necessary in order to ‘understanding’ what are and what are not real threats. The argument would then be to cut out the rhetoric that blankets everything and target what is ‘fixable’ and ‘serious’. The absence of either of these two characteristics renders the use of limited resources, possibly the risking of lives, and the creation of varying states of panic or despair a pointless and stupid exercise unless the exercise is about something quite entirely different.

While other criminals groups are also ‘policed’, the public police in Canada focus in a concentrated manner upon the more traditional and more visible criminal operations, i.e. biker gangs, Italian ‘Mafia’, Asian gangs. Cynically these groups might be seen to be an enforcement delight—in part because they will always be front-page news, the ‘stories’ are understandable to the public, and the criminal activities lend themselves to unverifiable estimates—most notable, the amount of the drugs seized or shipped. Bikers even advertise, have clubhouses, wear sign of their backs and persist is going on their rides. I am not suggesting that outlaw bikers do not need to be policed. I am also aware of the business persona of many of the bikers and their ability to corrupt and influence.

I am suggesting however that the ‘policing tasks’ that are required in order to focus on these groups may be closer to traditional police work than what must be directed against some other forms of transnational crimes. If our focus is dominated by the ‘organized crime/ transnational’ aspect, we may be ignoring not only the local aspect but also what might be seen to be the lower level crimes that are part of the transnational crime processes. Empirical research reveals a complex mix of criminals that range from the sophisticated ‘specialists’ to the ‘opportunists’—all operating within the same crime field.

To be fair, it must be acknowledged that the public police are handicapped in any effort that they themselves might make to change their targeting in this area of enforcement. The public police in Canada as in Australia and other countries are ‘resource dependent. Their funding comes from governments and in exchange they must meet certain expectations of their political masters and of the public and of the media. "Biker wars" and other ‘visibly violent’ groups are sexier and far easier for the public and politicians to understand than are the criminal deal-making and the massive financial frauds. Hence we get the Gretzsky’s and the Rothchild of the mob-world cases to hold the public in awe.

What is the harm---increased fear by the public, wasted resources if greater organized crime ‘threats’ are non-media worthy, possibly violations of rights. And—perhaps a sense that the police are more than the enforcement of legislation, but rather safe guardians of a moral order. The cases that have involved this display of collaboration with the media have been drug cases and child pornography cases—harking to a notion that the police have the ability to ‘know’ guilt when they see it and therefore the individuals rights are deemed to be less worthy of safeguarding. (not withstanding all of the Guy Pauls and Davids).

Again—the police are not in this media game by themselves. Interestingly, after the homelessness ‘riot’, the media spokespersons were dismayed by the fact that the police wanted to take possession of the video coverage that the media took of the protesters. The position expressed was that it is critically important for the media to be, and to be seen to be, separate from the interests of the police and government and to operate independently of either. Perhaps they want it both ways—willing to be invited on raids—but still want to claim an independence in their reporting.

  1. Morale Issues: Corruption and Accountability

Which leads to my second point. It is very hard to determine whether or not the amount of corruption within Canadian policing has increased because an argument could be made that detection is merely better. I think this is hard to defend. During the last three years an array of diverse forms of serious corruption has been in the media:

the old-fashion greed sort and
so called ‘worthy cause’ corruption where the law is violated supposedly to get the job done and
unethical and/or violent conduct of the sort that one associates with the NYPD (by the way, a historically corrupt and violent force that our police seem determined to visit, study their supposed community policing strategies and to emulate).

Again---this corruption is not restricted to Organized Crime enforcement but whereever the opportunities for money and power exist some people will exploit these conditions. OC enforcement offers many opportunities.

Recent examples:

Theft by police from informant money funds and false documentation
Theft by police from suspects and extortion from members of the public
Bribery, obstruction of justice, perjury
Jeopardized drug cases due to corrupt police
Several cases of police absent from duty and drinking on the job
Theft from exhibits
Planting of evidence, re-writing of note-books, lying and cover-ups
Police with ties to criminal organizations and collaborations with criminal operations.
Systemic ethical issues regarding management of found/seized items and returned guns—including the sale of guns.

Coupled with evidence of corruption, has been increasingly aggressive police unions—that have served to marginalize the police and reduce aspects of accountability that had been harm won during the early 1980’s, i.e., civilian review being one aspect of diminishing accountability.

Attempting to explain an increase in corruption and unethical police work is difficult. Typically, one looks at salaries to see if there is a sense of ‘informal’ entitlement due to under funded formal rewards. This is not the case with Canadian policing where salaries and benefits are considered to be appropriate. More likely, the answer may lie with sheer opportunities.

Police culture plays a role. I had an opportunity to attend the retirement party for one of the ‘old guard' hold-up squad/ biker unit members. One came away believing the rhetoric about the bond of the brotherhood and the loyalty and love among the members and the sense that ‘outsiders’ (everyone else) could have no real understanding of what it meant to be a member of that fraternity. Unfortunately, a couple of those key members were the officers who were drinking and watching a hockey game while supposedly on duty when their colleague was killed. The chances of this occurring where negligible but it happened and one feels sorry for everyone involved. However, I think it also reveals a fraudulent aspect to the brotherhood rhetoric. What may be needed is greater accountability, more visibility and less rhetoric about the uniqueness of policing.

Private policing eliminates the theatre and drama. The objective is to make money and ‘problem-solve’ for the client. This is the ‘new’ competition for the public police in areas relating to serious, economic/financial, and/or organized crime. This new competition may serve to undermine the morale of the public police as they see in some cases better funded operations enticing excellent investigators away from the public policing community.

Transnational crime investigations involve numerous issues that can be more expediently dealt with by the private police if there is a paying victimized client : i.e.

no sovereignty issues,
no drawn out Mutual Legal Assistance Treaty (MLAT) process,
usually a generous budget,
no evidentiary restrictions since the case most likely is not intended to end up in court.

The down-side is that there will be most likely:

no formal criminal sanction,
no records,
questionable accountability regarding ‘policing’ strategies, and
there is not always a willing paying client who has a vested interest in stopping a particular form of transnational crime. The offenses most likely to be addressed are those where corporate profits are at risk.

 

3. Management and Policy issues

The multiple agendas and hidden constituencies complicate the process of formulating, enforcing, and assessing the success of any enforcement policy. Equally important, varying pressures make it difficult or impossible to reverse a policy that fails to have any useful effect in terms of its nominal objectives. Some policies of course may also make a situation worse, rather than merely having no impact. There are ‘costs’ attached to enforcement and enforcement policies—in terms of dollars spent vs. gain but also in terms of the unanticipated or unaddressed consequences directly stemming from the enforcement strategies. (In other papers and presentations I have emphasized some of the dangers seemingly inherent in an approach that prioritizes ‘going after the illicit proceeds’ if adequate restraints are not in place.)

If policing is:

influenced by the desire for media coverage, and
is allowed to define the extent and nature of the ‘threat’ and
then is allowed to operate in an environment devoid of scrutiny

one ought to predict that adherence to a clear strategy and the putting into place of long-term policies to reach definable objectives will be absent. In place of strategic planning based on research and intelligence, there will be little commitment to high profile ‘shifting’ initiatives that speak to unfocussed management. What do we see—confusion, frustration, and a rush to inappropriate policies. For example:

The adoption of, and commitment to, the philosophy of community-based policing which appeared to be appropriate for domestic policing was criticized by others as being disabling in international cases brought by liaison officers.

With funding delegated out into the field and down into the ranks, resources for major cases initiated abroad found no sympathetic ear among the detachments. At risk were not only these transnational cases but also working relationships with foreign agencies.

The adoption of the community-based policing encouraged police forces to eliminate ranks in order to form a less hierarchical para-military organization. However, the commitment to a more level organization was never very complete.

Hence, taking away levels merely meant that more, and more diverse, responsibilities fell to Deputy Chiefs and in some of the municipal forces supervision was lacking. Chief Fantino in Toronto has announced that he may be restoring the rank of staff-superintendent and bringing to an end a period of de-centralization rhetoric. He announced that once again ‘police headquarters would be the heart of police operations’.

Quick on the heels of the announcement of the Ontario budget for 2000, the Ontario government announced plans to ‘take the profit away from criminals’. Ignoring the fact that the provinces (particularly Ontario) have been resisting making use of the Proceeds of Crime legislation that has been in place since 1999, they announced that civil forfeiture was the area that they were looking to use. As one official stated: the beauty is that you don’t even need a conviction. Three days after an official assured me that they would not be attempting to put any new legislation in place without reviewing evidence from the civil forfeiture experiences of other countries, a media release announced their legislative strategy to beat organized crime—civil forfeiture legislation.

Conclusion: Re-Newing the Policing Organizations

My conclusions relate more to the organization of policing for organized crime/ transnational crime enforcement rather than the operational efforts within the given structure. There remains remnants of the perception that the police can be and ought to be generalists who are able to spontaneously become specialists. Whether that is still true is debatable.

Police forces around the world are seeking new and better ways to meet the changing demands of changing crimes. The Australian Federal Police has perhaps made the most headway in terms of these structural changes. The following are some of the areas that are causing degrees of inefficiencies within policing:
Deployment of Officers: The Best People in the Appropriate Jobs

The difficulty for the police is to ensure that the most qualified officer for a particular task is actually in that position. This is compellingly obvious in areas of responsibility such as economic crime, high technology crimes, and the integrated proceeds of crime units. We speak about the sophistication of the ‘new’ order organized criminals/ transnational criminals and money launderers and yet they are still being ‘policed’ publicly in many cases by non-specialist units that suffer from a disruptive movement of officers into and out of the areas of specialization.

While on a case by case basis, senior management might be able to intervene to ensure that a particular officer is kept within a particular function, however this tends to be the exception due to the machinery that moves the personnel around within the organization. While there is a policy that attempts to give managers of specialized units such as the Integrated Proceeds of Crime Units (13) across Canada greater say as to who joins their unit, successful intervention even in these ‘elite’ situations is still rare, or at best unpredictable.

Another way to gain expertise within police work is to hire the expertise from outside. While the police are making wider and perhaps increasingly better use of civilians these non-member employees soon discover that there is no career path to keep their salaries from falling behind a competitive position in the private market.

In the United States the wide range of "agent" levels may respond to some of these difficulties. Thus we have the Federal Bureau of Investigation (FBI), Customs, Alcohol, Tax and Firearms (ATF), DEA, and so on, to investigate crime usually of a trans-jurisdictional complex nature.

Perhaps the most interesting model is the Australian Federal Police (AFP). Several key changes have been implemented: teams vs. ranks, and rewarding individual capability (among other changes) and the ability of the Commission to fire officers for poor or corrupt performances. While few in Australia would argue that these changes have been perfectly implemented, the changes address some of the critical issues that are common across police services internationally and are therefore worthy of study.

Related to corruption and unethical conduct and cases involving sheer bad-police work, it is still very hard or impossible to fire a police officer in Canada. This is vastly different in the private policing world.
Collaborating Across Police Services and Strategic Intelligence Sharing

Police forces nationally and internationally have been criticized for the lack of collaboration, sharing of intelligence and cooperation across the separate policing jurisdictions. At times this failure has directly jeopardized investigations. Less than ideal working relationships have been acknowledged in countless reports. These same reports always conclude that ‘relations are better now than they have been in the past’. However, as the same criticisms are repeated years later, one must question the optimism of the improvement.

The joint force/ IPOC model seems to be the model that is increasingly relied upon internationally. The success of joint force policing, combined with international partnerships, was illustrated by the recent sentencing of Alfonso Caruana. In New Zealand the Combined Law Agency Group (CLAG) provides a linkage across the separate districts. In Australia various joint force operations plus the National Crime Authority serves this function.

Not unique to Canada but apparently universal is a resistance or an inability for police services across jurisdictions to make a long-term commitment to criminal intelligence work----strategic as well as tactical. The "commitment" tends to come in phases and is reliant on who is in charge at any moment in time. An excellent strategic intelligence system can be rendered useless by the lack of a commitment from the manager at any given period in time. Strategic intelligence is vulnerable to personalities and budget cuts in ways that other aspects of police work are not. There is some evidence that criminal intelligence units or organizations go through cycles which may be due to an inability to maintain a high-energy commitment to something that does not always appear to directly link to immediate results.
Promotion and Recognition Within the Services

Attention must be paid to the role that media coverage and headlines plays in the internal rewards within police services. If an officer get rewarded most predictably in terms of the high-profile busts that he/ she takes credit for, then there is little motivation to share the glory—or the intelligence that is essential to make the cases.
Separate Organized Crime Commission

While eliminating policing ranks within the Canadian policing structure may cause difficulties, the solution may not be to add the ranks back but to complete the re-organization and form policing teams with managers selected based on expertise specific to a particular case. If this is not practical for domestic street-level police work, then perhaps a stand-alone ‘serious’ or ‘transnational’ policing agency is required.

Maybe it is now time to consider a new structure for serious/ OC crimes that does not have the hierarchy, tenure, union, and policy contradictions with street policing. From time to time Canadian officials discuss the possibility of creating a standing organized crime commission. Would the seemingly systemic difficulties inherent in organized crime enforcement be solved or aided by the creation of a National Organized Crime Commission in Canada? Some countries have had a tradition of Organized Crime Commission i.e. United States and Australia—Canada has not. In the US there has been a slow movement away from the permanent standing type of Commission—whether due to political interference as in Pennsylvania Crime Commission or claim of lack of resources as in N.Y.

Australia again offers an interesting model. In Australia, two separate agencies in addition to State Police and Crime Commissions in New South Wales and Queensland have some responsibilities for organized crime enforcement. The National Crime Authority (NCA) is tasked with targeting what are called ‘referenced’ organized crime groups. The Police Ministers of every State sit on a Board of National Crime Authority and determine what groups to target for a specific period of time. Currently South East Asian Organized Crime; Outlaw Motorcycle Gangs, Anglo-Celtic crime networks and money laundering operations are ‘referenced’. The Australian Federal Police (AFP) have become the ‘investigative’ arm of the NCA for these references groups and in addition can operate against organized crime in those areas that are under their mandate i.e. drugs. The National Crime Authority has existed since 1984 and the continuing need for the NCA was confirmed ten years later.
Independent Corruption Commission

Maybe it is time to examine the Hong Kong or Australian models of independent Anti-Corruption agencies. In Hong Kong, the ICAC has been operating since 1974 and operates through a three-pronged strategy: The Operations Department that is responsible for investigations; The Corruption Prevention Department that reviews practices and procedures for government, public and some private bodies; and the Community Relations Department which focuses on education. A major component of the third-prong has been community relations through the development and teaching of moral education.

In addition, I would argue that we must get more serious about:

the lack of timeliness of using MLAT s internationally;
some agreement as to the balance between sovereign issues and international crime issues;
again—still—a re-examination of what is gained by criminalizing certain drugs;
and finally, taking a human security perspective, a commitment to strategies that include non-enforcement ‘alternative’ approaches to combat either transnational crimes or the harm from transnational crimes. There must be greater awareness that government policies—both domestic and international—and policing strategies—both domestic and international—in some circumstances can produce more harm than good and therefore must be carefully monitored and evaluated.