Canada needs a RICO law. Can we do it better than the U.S.?

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Alexandra Wrage is president of TRACE, an anti-corruption and good governance business association.

This week, Donald Trump and 18 others were indicted under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act, modelled on the U.S.’s federal RICO statute. That indictment is based on an alleged conspiracy “to unlawfully change the outcome” of the 2020 presidential election.

For some Canadians, however, it has raised a more local question: why doesn’t Canada have such a law to tackle the international drug cartels and vast money-laundering operations that are also helping fuel the opioid crisis?

Criminal RICO laws are powerful vehicles for bringing these charges against such organizations. Prosecutors need only demonstrate that a defendant is associated with an “enterprise” – defined broadly enough to include practically any group of individuals – and has engaged in a “pattern of racketeering activity” in connection with that enterprise. A “pattern” requires at least two “overt acts” in furtherance of any of a raft of specified criminal violations. (It appears to be bad luck for Mr. Trump that Georgia’s law defines a pattern more loosely than the federal version, which has been interpreted to require an extensive “continuity” of related activity.)

These laws have made it easier for U.S. justice officials to charge and convict both high- and low-ranking individuals within a wide range of organizations, from the “Five Families” of New York’s mafia to the perpetrators of the more recent “Varsity Blues” scheme to fraudulently inflate potential students’ test scores, manufacture athletic records and bribe college admissions officials. They allow prosecutors to tell jurors an extended story about a long-term criminal operation instead of restricting them to the details of a single crime. They can be used not only to hold the leaders of criminal organizations responsible for the activity they oversee, but also to incapacitate the organization itself.

But in Canada, prosecutors lack similarly effective tools to confront the extensive money-laundering abuses plaguing this country; in British Columbia alone, billions of dollars are laundered each year through the economy. Our reluctance to adopt U.S. criminal justice measures stems in part from well-founded revulsion at America’s “three strikes laws” – which can lead to outsized prison sentences for repeat offenders – and other sentencing guideline excesses. But it is clear current enforcement mechanisms here are failing to adequately address the problem.

Although Canadian policy-makers once toyed with the idea of RICO-style legislation, they opted for a more restrictively defined concept of a criminal organization, introduced into the Criminal Code in the late 1990s. These laws, together with the more general law of criminal conspiracy, have proven unwieldy in addressing the breadth of modern transnational criminal organizations. Many crimes here cannot be effectively prosecuted without the ability to address their full scope and to hold responsible both the organizations’ leaders and those who carry out their schemes. A new law along the lines of the U.S. RICO statutes would dramatically strengthen the country’s ability to root out these massive abuses. Indeed, in 2019, B.C.’s then attorney-general asked the federal government for such legal tools, but there has been no meaningful progress to date.

In the words of former prosecutor Rudy Giuliani – yes, that Rudy Giuliani: “Rather than pursuing the leader or small number of subordinates for a single crime or scheme, the Government is able to indict the entire hierarchy of an organized crime family for the diverse criminal activities in which that ‘enterprise’ engages.” That Mr. Giuliani himself has now been charged with a RICO violation as part of Georgia’s indictment reflects the sweeping power, scope and versatility of these laws.

Of course, such power can be applied heavy-handedly. Last year, for example, the same Georgia prosecutor who launched the Trump indictment issued one against Atlanta-based rap artist Jeffery Williams – more commonly known as Young Thug – claiming that he is associated with the alleged street gang Young Slime Life. To support their case, prosecutors have presented some of Mr. Williams’s lyrics as “overt acts” in support of the enterprise. Many in the hip-hop community, including Canada’s own Drake, quite reasonably see this as overreach: as a formalized guilt-by-loose-association and a penalization of free speech.

But we can learn from the U.S. experience and address the potential for prosecutorial overreach, while also pursuing stronger laws. Canada should consider appropriate safeguards, such as a more targeted definition of criminal enterprise, a clearer delineation of racketeering activity, and a more robust specification of what constitutes a pattern of such activity. But the underlying need for a Canadian racketeering law is clear. A U.S. case study involving the alleged criminal conduct of a former U.S. president should give Canadians real-time insight into its power, as well as some comfort with respect to its safeguards.