Scheer's claim about penalties for violent gang crime 'extremely misleading,' says lawyer

Liberal government legislation changed how prosecutors can pursue alleged gang members who commit violent crimes. But that doesn't mean they're getting off easier, lawyers say.

Suggestion that violent gang members get off with a fine is wrong, criminal lawyers say

Conservative Leader Andrew Scheer unveiled his party's plan to combat gun violence on Friday. (Jonathan Hayward/The Canadian Press)

As part of our federal election coverage, CBC News is assessing the truthfulness and accuracy of statements made by politicians and their parties.

The Claim: "Instead of going after gangsters and criminals who use guns to commit violent crime, Trudeau actually reduced the penalty for gang crime to as little as a fine."

— Conservative Leader Andrew Scheer

The Facts:

During a campaign stop in Toronto to announce the Conservatives' plans to curb gun violence, Scheer tried to paint Liberal Leader Justin Trudeau as soft on crime.

Though he never mentioned it by name, Scheer alluded to a host of justice system reforms outlined in Bill C-75, sweeping omnibus legislation introduced and passed by Trudeau's government.

The bill included changes to Canada's bail regime, jury selection and sentencing, among others.

Most relevant to the claim by Scheer cited above is the legislation's Clause 186, which modified how prosecutors can choose to proceed against Canadians accused of participating in the activities of a criminal organization.

But before we dive into Bill C-75 and its consequences, let's go over some key definitions.

In the Criminal Code, there are "indictable" offences and "summary" offences. Indictable offences are the most serious and carry the harshest penalties. Murder, for example, falls in this category.

Summary offences are less serious and are punishable by a maximum of up to two years in jail, a fine of up to $5,000 or some combination of the two.

The type of offence a person has been charged with determines various aspects of subsequent court proceedings. Summary offences move more quickly through the system because the accused loses their rights to a jury trial and a preliminary inquiry.

There is, however, a third classification of offences called "hybrid" offences. These make up the majority of offences outlined in the Criminal Code. They give Crown prosecutors the option to pursue an offence as either indictable or summary, depending on the specific circumstances of the case.

So hybrid offences allow for greater discretion in how cases move forward.

More discretion for the Crown

Here's where Bill C-75 comes into the picture. The bill transformed many formerly indictable offences into hybrid offences — including participation in a criminal organization.

The change was motivated partly by the fact that the term "criminal organization" is broadly defined in law. Such an organization must have at least three members, and one of its purposes must be to carry out criminal activities.

The definition has been further refined by case law over time, but there's considerable room for interpretation, said Michael Spratt, a criminal lawyer at the Ottawa firm Abergel Goldstein & Partners LLP.

"We could be looking at the Hells Angels, which is a very serious group, or we could be looking at a group of friends who agreed to a 'criminal enterprise' together to steal from a convenience store," he said.

The change included in Bill C-75 gives the Crown more leeway to assess the facts of a particular case and decide whether opting for an indictable offence is the best option.

'Categorically false'

Craig Bottomley, a criminal lawyer at Bottomley Barristers in Toronto, said any case involving gun crime and a criminal organization will be pursued as an indictable offence.

He called the suggestion that Bill C-75 has resulted in gang members who committed violent offences walking away with fines "categorically false."

Spratt agreed, calling it an "outright lie" to claim the bill lets gang members convicted of violent crimes off the hook with a fine.

"Just because an offence can proceed one way doesn't mean that an offence will proceed that way. For serious offences for real criminal organizations, the Crown can still proceed by indictment and still seek a very serious sentence," Spratt said.

"So it's extremely misleading to say that Trudeau has reduced sentences for gang crime."

Verdict: Misleading.

Sources: Bill C-75, Parliament of Canada; Legislative Summary of Bill C‑75: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, Parliament of Canada; Criminal offences, Department of Justice


Lucas Powers

Senior Writer

Lucas Powers is a Toronto-based reporter and writer. He's reported for CBC News from across Canada. Have a story to tell? Email lucas.powers@cbc.ca any time.

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