UTUCR Volume 5

1 Vol. 5. 2018______________________________________________________________________

2 TABLE OF CONTENTS3 Letter from the Editor-in-Chief4 Affiliations5 Masthead 2017-20186 Addressing the Practicality and Morality of Retributive Punishment inCriminal Drug Addiction PolicyAlex Cote15 Revisiting R. v. Jordan and its Treatment of Unconstitutional Delay inLight of Prejudice to the AccusedTeodora Pasca35 Understanding the Concept of Organized Cybercrime through the lens ofTraditional Organized Criminological TheoryRhea Hsu50 Injustice in Tort: The Crumbling Skull Defence and its Role inProblematizing Canadian Residential School Civil LitigationTanzim Rashid61 About our Authors

3 Letter from the Editor-in-ChiefDear valued readers,It is with pride and joy that I present to you the fifth volume of the University of TorontoUndergraduate Criminology Review (UTUCR). The UTUCR is an undergraduate academic journalthat has, for half a decade, published original, thoughtful, and analytically rigorous works on avariety of issues related to criminology and socio-legal studies. The journal features studentsfrom all disciplines, including political science, ethics, law, and philosophy, and has maintained aclose partnership with the Centre for Criminology & Socio-legal Studies and CriminologyStudents Association (CRIMSA) at the University of Toronto.This year, as Editor-in-Chief, I sought to continue the rich legacy of academic excellence andsocial consciousness that has come define the journal and its members. Our diverse editorialboard, consisting of senior and junior editors, provided a breadth of unique perspectives duringthe editorial process, informing our selections and enriching our discussions. This year wedecided to give students full control over the publication process. This meant, for the first time,excluding faculty members from the review process. Although this approach may change in lateryears, it was my strong belief that the UTUCR should be for, by, and of the undergraduatestudent body.Four outstanding papers were selected for publication this year. Each paper features a uniquetake on an often-unexplored corner of our criminal justice system. From an examination of therole prejudice plays and ought to play in decisions regarding court delays, to an exploration ofthe relationship between organized cybercrime and traditional criminal activities, to anassessment of the practicality and morality of retributive criminal drug addiction policy, eachpaper delves deep into the nuances of crime, justice, and the law, and provides an original voiceon long-standing issues. Our masthead worked tirelessly to refine and improve the selectedpapers, focusing on spelling, grammar, citations, logical fluency, and originality. Their hard workis the seed from which this journal has blossomed over the past year, and they have my deepestgratitude.As Editor-in-Chief, my passion for criminology flourished in these past twelve months. I learned ofnew ideas, critically thought about complicated issues, and formed a community around thestudy of our criminal justice system. My time at the UTUCR will follow me throughout the nextstages of my academic and professional life, and I am grateful for the opportunity. I look forwardto what next year’s masthead will bring.Yours truly,Tanzim RashidEditor-in-Chief | 2017-18University of Toronto Undergraduate Criminology Review

4 AFFILIATIONS CENTRE FOR CRIMINOLOGY AND SOCIOLEGAL STUDIES The Centre for Criminology & Socio-legal Studies is a research and teaching unit at the University of Toronto. Founded in 1963 by Professor John Edwards, the Centre’s faculty and students study crime, order, and security from a variety of disciplinary perspectives and theoretical approaches. With backgrounds in sociology, law, history, psychology, philosophy, and political science, the faculty are actively engaged in Canadian and international criminological research. CRIMINOLOGY STUDENTS’ ASSOCIATION Arts and Science Union, University of TorontoThe Criminology Students’ Association (CRIMSA) represents all graduate andundergraduate criminology students, and anyone taking at least one Criminology course(WDW) at the University of Toronto, St. George campus. CRIMSA aims to bring theCriminology community together and build stronger relationships between the students,staff and alumni through social and academic events. CRIMSA’s mandate involvesincreasing student participation in the Criminology program and representing theirinterests to the University. CRIMSA organizes academic events (lectures, job searchpanels, professor-student networking, and volunteer opportunities) in order to engagestudents in a deeper involvement and understanding in the study of Criminology.CRIMSA also hosts various social events in order to foster a stronger feeling of inclusionand community amongst the students.

5 Masthead 2017-2018 Editor-in-Chief Tanzim Rashid Managing Editor Andrea Dimiskovska Senior Editors Zafir Rattani Rachel Courts Stephanie Bianco Junior Editors Raphael Padolina Bradley GouldJoshua Michael Harriott Roxy Shlapak

6An Eye for an EyeAddressing the Practicality and Morality of RetributivePunishment in Criminal Drug Addiction PolicyAlex CotePhoto Credit: Daniel Baxter Art — Prescription for Abuse

7Introduction The presidency of Ronald Reagan — beginning in 1981 — marked aperiod of mass expansion for the ‘War on Drugs’. By the mid 1980s, concernabout illicit drug use had reached a climax in the United States. In response, theU.S. government introduced harsh punishments for drug offenses in an effort todeter production, trafficking, and usage. Thirty years later, drug overdosemortalities in the United States tripled from a mere 17,000 in 1999 to 55,000 in2015. [1] Experts, such as Emily Crick, argue that this surge in overdose mortalitieswas a direct result of the Reagan administration's amplification of the drug war,which shifted drug treatment resources from health agencies to the Departmentof Justice. [2] This change in policy marked a notable transformation in theideological framework upon which the criminal justice system’s approach to drugaddiction was predicated upon, with policy makers, law enforcement officials,and correctional officers opting for a retributive paradigm of punishment, asopposed to its rehabilitative counterpart. In examining the morality andpracticality of retributive punishment within the context of nonviolent drugaddicted offenders, it will be argued that this shift to retributive justice has beensocially detrimental, lacking both the philosophical and empirical supportnecessary to justify its imposition.Practicality The retributive approach to drug addicted offenders lacks any notablepractical value. According to a study by the National Institute on Drug Abuse,most drug addicts who remain in treatment change in three important ways: theystop using drugs, decrease their criminal activity, and improve their occupationalfunctionality. [3] By contrast, current studies show that approximately 95 percent of

8drug addicted offenders return to abuse after incarceration, and 60 to 80 percentgo on to reoffend.[4] Similarly, further studies have found that diverting drugaddicted offenders to community-based treatment programs, rather thancorrectional facilities, could significantly reduce crime rates [5] and eliminate thedetrimental stigma surrounding drug addiction. [6] This latter consequence isespecially acute given the false public perception of addiction it generates,which subsequently results in reduced public funding for addiction services,intensifying the issues, and thus creating a vicious cycle. A final facet putting intoquestion the practicality of retributive punishment is the financial aspect ofcorrections within the context of drug addiction. According to the NationalInstitute on Drug Addiction, drug treatment options, when successful, aresignificantly cheaper than incarcerating an addicted offender. [7] Specifically, a fullyear of maintenance on a methadone treatment clinic for an individual is $4,700,while incarcerating a prisoner for a full year can range from $30,000 to $50,000. [8]Furthermore, the high rate of recidivism under the retributive model puts furtherstrain on the economic cost of the correctional system, as drug addicts move inand out of the prison system in a highly frequent manner. Most importantly, theaforesaid studies have suggested that improved treatment programs, and areduction in retributive justice, can function in two beneficial ways: first, it canstimulate the economy by recirculating labour — previously lost to drugaddiction — back into the market, and second, it can reduce homelessness byproviding alternative pathways towards reintegration for a populationdisproportionately affected by drug abuse. [9] Given the aforesaid information, when viewing the criminal justicesystem’s approach to drug addiction through the prism of practicality, it is clear

9that correctional facilities operating under the rubric of retribution do not offereffective treatment for drug addicted offenders. Instead, they carry a higher cost,increase stigma, and maintain crime rates. The impracticality of retributive justiceis compounded by the immorality that closely follows it.Morality The retributive approach to criminal justice in the context of drugoffenders is morally questionable. Contrary to dominant narratives, the root ofdrug addiction and their attendant criminal consequences is not grounded in the‘evils’ of drug offenders or their ‘lack of self-responsibility’. North America’scurrent opioid addiction crisis can be largely credited to an over-prescription ofpain relief medication. [10] Recently, multiple states in the U.S. have filed lawsuitsagainst Purdue Pharmaceuticals, the main producer of the addictive painkillerOxyContin. [11] The appellants argue that Purdue exploited vulnerable markets,including the elderly and the “opioid-naive”, in order to boost profits. Moreover,the lawsuit claims that Purdue aggressively and deceptively marketed opioids todoctors, claiming that OxyContin was the primary treatment option for chronicpain conditions, despite the lack of comprehensive and scientifically exhaustivestudies demonstrating its efficacy. [12] Many addicts who first received theseprescriptions, and were later denied it, eventually turned to illicit heroin, harddrugs, and criminal options to satisfy the addiction that followed. This providesan alternative impetus for the sharp rise in drug related offences in the UnitedStates: addiction to prescription medications. The heart of the issue thereforelies in the ethically questionable marketing practices of pharmaceuticalcompanies and neglect of medical practitioners, and not the unscrupulouscharacter of drug addicts. More importantly, this information centers the drug

10addiction issue in public health terms, as opposed to the language of moralcorruption or failed self-responsibility, which alters the nature of thecorresponding solution. The detachment between drug addicted offenders andmoral culpability is further realized when viewed through a purely legal andjurisprudential lens. In order to prove legal culpability, the illegal physical act, or actus reus,must be proven, as well as the guilty mind, or mens rea. Therefore, in a case ofdrug possession, there must be the actual act of drug possession, as well as theintention to possess said illegal narcotics. However, modern neuroscience hasbegun to diagnose drug addiction as a disease of the mind, [13] shrouding thetraditional conception of drug addiction crimes in doubt. Academic scholarshipsupports the fact that long-term drug addiction significantly alters the humanbrain. [14] In essence, addictive drugs operate by releasing dopamine into thehuman system, causing sensations of pleasure and wellbeing. [15] These consistentand high-level releases of dopamine can affect one's base level of happiness,productivity, and reasoning. [16] In order to operate, be a productive member ofsociety, and reach euphoric levels of happiness, drug addicts are forced to ingestan exponentially increasing amount of the drug. This consequently impairs theirjudgment and significantly alters their brain chemistry, including their motorfunctions, mood stabilizers, and sensitivity to stress. These changes directly bringinto question whether the accused had the mental acuity to actually form theintention to, among other things, possess narcotics. In this way, the traditional dejure conception of drug addicted offenders, and the retributive frameworkconcomitant to it, are complicated by the modern science regarding drugaddiction. This alternative paradigm shifts the culpability away from the offender

11and to the opioids themselves. When this reformulated understanding of drugaddiction, and its weak connection to the legal criteria of mens rea, is read incombination with the jurisprudential notion that the state ought not punish theinnocent ,[18] it is evident that retributive punishment for drug addicted offendersis immoral. In a philosophical context, this latent immorality of retributive justice (in adrug addiction context) is laid bare. Retributive justice is best understood as amoral entitlement to a proportional punishment for a wrongful act. [19] Within thescope of criminal drug policy, the core element of retributive punishment lieswithin just deserts, delivering punishment according to the harm the drugoffender had caused to society. However, the applicability of this retributive logicto criminal justice approaches to drug addiction is problematic. Drug addiction isunderstood as a disease of the mind, [20] with its mentally debilitating naturereleasing the agent from culpability. It would therefore be difficult to understanddrug offenders as deserving of punishment, since they have little to no directresponsibility for their actions. In reality, even in the formative stages ofaddictions, drug addicts have little control given the deceptive practices ofpharmaceutical companies and medical practitioners in leading them to opioiduse. As such, the morality of a retributive approach to drug addicts in criminaljustice is just as precarious as its practicality.Conclusion

12 In sum, the investigation of the morality and practicality of retributionwithin criminal drug addiction policy reveals the doubtful tenability of theapproach. With the western world facing an increasingly pressing epidemic ofopioid abuse, it will be important for policy makers to engage with the academicsphere to design their approaches and disentangle the many assumptions andfalse narratives that have previously informed their decisions. End Notes[1] Kristina Kuttnig, \"World Drug Report,\" World Drug Report, 2017.[2] Emily Crick, “Reagan’s Militarisation of the ‘War on Drugs’,” Global Drug Policy Observatory, 2016.[3] National Institute on Drug Abuse (from hereon NIDA), “Is drug addiction treatment worth its cost?” 2012.[4] \"Drugs and Crime in America,\" National Association of Drug Court Professionals. 2010.[5] Gary A. Zarkin et al., \"Lifetime Benefits and Costs of Diverting Substance- Abusing Offenders From State Prison,\" Crime & Delinquency 61, no. 6 (2012): 829-50, doi:10.1177/0011128712461904.[6] Ibid.[7] NIDA, “Drug Addiction”.[8] Ibid.[9] Ibid.[10] Ibid.[11] Alana Semuels, \"Are Pharmaceutical Companies to Blame for the Opioid Epidemic?\" The Atlantic, June 02, 2017.[12] Semuels, “Opioid Epidemic”.[13] NIDA, “Drug Addiction”.[14] NIDA, “Drug Addiction”.[15] NIDA, “Drug Addiction”.[16] NIDA, “Drug Addiction”.[17] NIDA, “Drug Addiction”.[18] William Watson, \"Lecture 4,\" Lecture, England, Oxford, 2017.[19] Alec Walen \"Retributive Justice,\" Stanford Encyclopedia of Philosophy, 2014.[20] NIDA, “Drug Addiction”.

13 ReferencesCrick, Emily. “Reagan’s Militarisation of the ‘War on Drugs’.” Global Drug Policy Observatory. 2016. Accessed August 30, 2017. http://gdpo.swan.ac.uk/?p=440.Delva, Jorge, Yehuda D. Neumark, Carolyn D. M. Furr, and James C. Anthony. \"Drug Use Among Welfare Recipients in the United States.\" The American Journal of Drug and Alcohol Abuse 26, no. 2 (2000): 335-42. doi:10.1081/ada-100100609.\"Drugs and Crime in America.\" NADCP. 2010. Accessed August 30, 2017. http://www.nadcp.org/learn/drug-courts-work/drugs-and-crime-america.Kuttnig, Kristina. \"World Drug Report.\" World Drug Report. 2017. Accessed August 30, 2018. http://www.unodc.org/wdr2017/en/maps-and- graphs.html.National Institute on Drug Abuse. “Is drug addiction treatment worth its cost?” 2012. Accessed August 30, 2017. https://www.drugabuse.gov/publications/principles- drug-addiction- treatment-research-based-guide-third-edition/frequently-asked- questions/drug-addiction-treatment-worth-its-costSemuels, Alana. \"Are Pharmaceutical Companies to Blame for the Opioid Epidemic?\" The Atlantic. June 02, 2017. Accessed August 30, 2017.

14 https://www.theatlantic.com/business/archive/2017/06/lawsuit- pharmaceutical-companies-opioids/529020/.The National Coalition for the Homeless. “Substance Abuse and Homelessness.” 2009. Accessed August 30, 2017. http://www.nationalhomeless.org/factsheets/addiction.pdf.Walen, Alec. \"Retributive Justice.\" Stanford Encyclopedia of Philosophy. June 18, 2014. Accessed August 30, 2017. https://plato.stanford.edu/archives/sum2015/entries/justice-retributive/.Watson, William. \"Lecture 4.\" Lecture, England, Oxford, 2017.Zarkin, Gary A., Alexander J. Cowell, Katherine A. Hicks, Michael J. Mills, Steven Belenko, Laura J. Dunlap, and Vincent Keyes. \"Lifetime Benefits and Costs of Diverting Substance-Abusing Offenders From State Prison.\" Crime & Delinquency 61, no. 6 (2012): 829-50. doi:10.1177/0011128712461904.Due Process in Due Time

15Revisiting R. v. Jordan and its treatment of unconstitutional delayin light of prejudice to the accusedTeodora PascaPhoto Credit: ihfgraphicsIntroduction

16 Backlogged courts and lengthy wait times have been an unfortunatereality of the Canadian criminal court system for over two decades. S. 11(b) of theCanadian Charter of Rights and Freedoms, which codifies the right of all accusedpersons “to be tried within a reasonable time”, serves as an important form ofresistance in the face of threats to liberty, security of the person, and fair trialinterests associated with delay. On July 8, 2016, the Supreme Court of Canadareleased their decision for the case of R. v. Jordan, which significantly impactedhow the right to be tried within a reasonable time is now conceptualized by thecourts. Though Jordan clarified the point at which delay is consideredunreasonable, it has also rendered the role of prejudice in evaluating delayuncertain, which bodes concerning implications for the accused, who of allplayers in the criminal justice system, is arguably the most vulnerable toprejudice as a result of delay. In order to adequately account for the impact aprolonged trial can have on an accused’s wellbeing and the fairness of theprocess, revisions to the Jordan test are warranted.Context: Criminal court delay in Canada According to a 2008 report commissioned for the Attorney General ofOntario, criminal trials have become increasingly long and complex over the past30 years.[1] Justice officials across the country have become increasinglyconcerned about accelerating rates of delay within the criminal court system — aphenomenon that has persisted despite an overall decline in crime since the1990s.[2] Potential causes of delay include analytical complexities and pre-trialprocedures stemming from the expansion of Charter jurisprudence, the addition

17of complex statutory provisions to criminal law statutes, and depleting resourceson the part of the federal and provincial governments.[3] In this context, stays of proceedings under s. 11(b) have provided refugefrom the harms associated with delay.[4] Accused persons appear to be filing11(b) Charter claims with increasing frequency: a review of Canadian court casesover the past 25 years reveals that an average of 168 claims of unreasonabledelay per year were filed between 2008 and 2013, compared to an average of90.4 claims per year between 1988 and 1998.[5] This latter figure plummets to59.4 claims per year when controlling for the three years immediately following R.v. Askov — a high-profile decision that firmly established the standards by which11(b) claims were to be judged, and resulted in an unusual spike in 11(b)applications as well as over 47,000 stays of proceedings and charge withdrawalsin Ontario alone.[6] Ironically, the increase in 11(b) applications has onlyexacerbated backlog in criminal courts.[7]S. 11(b) and prejudice as treated throughout the jurisprudence Prior to the Jordan decision, courts looked to the 1992 decision of R. v.Morin for guidance as to how to assess the constitutionality of delay. Morinclarified the contextual factors set out in Askov for demonstrating unreasonabledelay under s. 11(b), thereby establishing itself as the jurisprudential standard forover two decades. While Morin lists a number of other factors in evaluatingdelay, the most salient factor for the purpose of this analysis is prejudice to theaccused. Throughout the case law, courts have established a logical connectionbetween prejudice and the length of a delay, ruling that it is possible to inferprejudice from the excessive length of proceedings.[8] In Morin, Justice Sopinka,

18writing for the majority, stated that “the longer the delay, the more likely that theinference will be drawn.” As Sopinka elaborated, “inferred prejudice” is assumedon the basis of time elapsed, in acknowledgment of the fact that the fairness of atrial is typically compromised as time drags on. The concept of inferred prejudicehas been distinguished from the concept of actual prejudice, which refers toevidence of tangible harm the accused experienced due to the delay.[9] The concept of prejudice has historically created a host of analyticalproblems for judges. In Mills v. The Queen, Justices Lamer and Wilsonnotoriously disagreed over whether, in the scope of 11(b) applications, prejudiceto the accused should be limited to prejudice tied to the delay, or also includeprejudice that occurs as a result of the criminal charge they are facing, such asthe stigma associated with certain offences. Lamer argued that proof of actualprejudice is irrelevant, and prejudice should instead be inferred from lengthydelay given that the two concepts are intrinsically connected.[10] The distinctionbetween actual and inferred prejudice has been repeatedly challenged andconvoluted throughout the case law. Furthermore, courts have hesitated to apply stays of proceedings — theonly available remedy in 11(b) applications, and a severe remedy by all accountsgiven that it involves dropping all charges and allowing the accused to go free —when the accused is unable to show that they have been prejudiced by thedelay.[11] In Morin, Justice McLachlin poised prejudice to the accused directly inopposition to society’s interest in bringing criminals to trial. It consequentlyseemed difficult under the Morin jurisprudence for stays of proceedings to be

19issued unless actual prejudice could be proven, meaning that months or evenyears of unexplained delay were excused with relative ease.[12] The Jordan decision intended to put an end to these problems byremoving the criterion of prejudice from the test altogether. Replacing the Morinlist of contextual factors, the Supreme Court devised a new test quantifying thepoint at which delay should be assumed to be unreasonable. In the Jordananalysis, after factoring out delay caused by the defence, the total amount ofdelay is compared to a “presumptive ceiling” of 18 months for cases tried inprovincial court, and 30 months for cases tried in superior court or involving apreliminary inquiry. If this ceiling is breached, to avoid a stay of proceedings, theCrown must prove that at least some of the delay was caused by reasonablyunforeseen or unavoidable exceptional circumstances, and the delay could notbe remedied. For a stay of proceedings to be issued below the ceiling, thedefence must prove that they took expediting steps to respond to the delay andthat the case took “markedly longer” than it should have. The latter criterion isevaluated by scrutinizing the case’s inherent time requirements, depending onfactors such as the complexity of the case or considerations relevant to the localjurisdiction.[13] Mindful that the Jordan framework is a significant departure from theformer test under Morin, the final stage in the Jordan inquiry — referred to as its“transitional provisions” — provides leeway for the law to change gradually onthis front. Jordan states that cases currently in the system must be decided withflexibility. If the Crown can convince the court that the delay would be justifiableunder the Morin framework, and that the parties involved reasonably relied on

20the previous framework throughout the trial process, a stay of proceedings maybe avoided regardless of whether the presumptive ceiling was breached. Thoughthe transitional provisions are temporary and intended to exist only insofar as toallow the law to adapt to Jordan, it is unclear at what point these provisions willbecome obsolete.[14] With respect to prejudice, the majority in Jordan argued that the Morinjurisprudence was wrought with confusion and inconsistency as a result of theexplicit inclusion of prejudice as a factor in the Morin test, calling it “confusing,hard to prove, and highly subjective.” Accordingly, the majority removed explicitconsideration of prejudice from the 11(b) inquiry, arguing that prejudice now“informs the setting of the presumptive ceiling.” The ceiling demarcates thepoint at which the accused is now assumed to have experienced a threat to theirliberty, security of the person, and fair trial interests, without having to adduceevidence on this front. Furthermore, unlike in Morin, where the Crown couldadduce evidence that the accused was not prejudiced by the delay, its onlyoption for justifying delay under Jordan is to utilize exceptional circumstances,meaning that the absence of prejudice can no longer make an unreasonabledelay reasonable.[15]How delay disadvantages accused persons Although delay impacts all parties in the criminal justice system, it isarguably the accused who is most vulnerable to its detrimental effects. Firstly,timely trials ensure that the accused spends as little time as possible with theirliberty restricted through pre-trial custody.[16] Yet many accused personscontinue to spend significant periods of time on remand while awaiting trial; the

21remand population in Canada has tripled over the past 35 years, and since 2004-2005, the number of people in provincial facilities being held in anticipation oftrial has been larger than those serving sentences.[17] Accused persons are notfinancially compensated for pre-trial incarceration, nor for the impact it may haveon their well-being, making it all the more important that their cases get to trialwithin a reasonable time.[18] Even an accused who is released before trial may still be subject toonerous conditions.[19] In R. v. Coulter, due to the accused’s child pornographycharges, he was subjected to numerous restrictions over the course of 29 months— including a complete ban on accessing the Internet. With the looming threatof criminal conviction over their heads, accused persons may also experience jobloss and damage to relationships.[20] Meanwhile, Canada’s legal system isrampantly underfunded, and this lack of resources can exacerbate court delaysfor accused forced to rely on legal aid due to financial difficulties.[21] In R. v.Park, the accused received two court adjournments due to a lack of availablecounsel who could represent him; he had repeatedly attempted to hire a legalaid lawyer, to no avail.[22] The right to a fair trial can be compromised by delay in various ways. Thelonger a trial drags on, the less likely it is that witnesses will be available to testifybefore the court — and if a witness moves out of the country or is otherwiseunavailable, the evidence may be lost altogether.[23] In a study on the impact ofdelay on memory recall, individuals shown selected videotapes were less likely tobe able to accurately describe their contents when questioned six months later.Viewers were also significantly less confident that they were right about what

22they thought they had seen. Research has demonstrated that witness confidencecan make or break whether the jury ultimately believes their statements.[24] Admittedly, the guilty accused benefits greatly from postponing his trialand sentence, especially if living free in the community.[25] Yet given that thepresumption of innocence is protected under s. 11(d) of the Charter, courts havecautioned against justifying delay on account of the accused’s guilt. In R. v.Williamson, the majority condemned the dissent for factoring guilt into the 11(b)analysis, ruling that it was wholly irrelevant to the amount of time it takes to bringthe accused to trial.[26] Furthermore, it seems that Jordan adequately protectsagainst the abuse of s. 11(b): the Crown is not required to answer for delaycaused by the defence, and the defence in turn must take expediting steps tomove proceedings along if the delay falls below the ceiling. Therefore, under theJordan framework, it is difficult for an accused to manipulate delay to their ownadvantage and benefit from doing so in the long run.Why Jordan does not adequately account for prejudice to theaccused Jordan aimed to eradicate previous analytical difficulties with the criterionof prejudice by removing its explicit consideration from the s. 11(b) test. Yet thisapproach disregards the intrinsic connection between prejudice andunreasonable delay that has been confirmed throughout the jurisprudence,including in Morin. It also does not pay appropriate regard to the potentiallydevastating impact that arduously long legal proceedings can have on accused

23persons. Moreover, because prejudice is no longer an explicit criterion, it isunclear what role — if any — it is now meant to play in 11(b) claims. A number of questions consequently remain unanswered. Jordan is clearthat the absence of prejudice is now irrelevant to whether the Crown can justify adelay above the ceiling, with the only available excuse being “exceptionalcircumstances.” However, Jordan does not explicitly preclude the accused frombringing forth evidence of prejudice in cases where exceptional circumstancesexist. It is unclear where this evidence might come into play and how muchweight it is to be given compared to the Crown’s efforts.[27] The exactrelationship between the defence’s initiative below the ceiling and the amount ofprejudice the accused experiences is also questionable. The majority links thesetwo factors together, but it remains unspecified whether the accused is able tobring forth evidence of prejudice outside the context of taking expediting stepsin response to their own hardship.[28] One possibility for including considerations of prejudice in the Jordananalysis is to do so under its transitional provisions. Prejudice, having played adecisive role in the Morin jurisprudence, can “inform whether the parties’reliance on the previous state of the law was reasonable.”[29] Indeed, inWilliamson, prejudice to the accused was considered under the transitionalportion of the Jordan analysis for the first time. Multiple cases after Williamsonseemed to follow suit; in R. v. Picard, R. v. Manasseri, and R. v. Regan, theaccused persons involved were kept in pre-trial custody and prejudice to theirliberty interests were not considered until the transitional inquiry. All threeaccused received stays of proceedings after rulings that they had been

24significantly impacted by the delay, suggesting that the transitional provisionsserve as a safety valve for making claims of prejudice heard.[30] The problem is that even the transitional provisions do not set a precisestandard for when and how prejudice should be considered. As pointed out in R.v. Sheldrick, Jordan explicitly describes prejudice as a deciding factor only in thecontext of cases that lie above the ceiling, leaving the fate of other casesundecided.[31] The transitional provisions are also prone to differinginterpretations. In R. v. McNab, the transitional portion of the Jordan analysis wasdismissed altogether; the 21.5 months that the accused spent on remand,including a significant portion served in solitary confinement, were not taken intoconsideration under the 11(b) analysis.[32] Finally, the transitional provisions onlyapply in cases where the Morin framework was used in previous stages of theproceedings. As Jordan becomes more ubiquitous throughout thejurisprudence, Morin cases will be gradually funneled out, meaning theseprovisions are at best a temporary solution for cases currently in the system. Jordan’s uncertainty with respect to prejudice has the potential to bedetrimental to accused persons. The accused is hardly responsible for delays dueto the complexity of their charges or discrete and unforeseen events on the partof the Crown, yet they can be penalized so long as the Crown can persuade thecourt that they qualify as exceptional circumstances.[33] Moreover, those whoexperience significant hardship as a result of delay no longer have a direct meansto bring that evidence forth; some judges might interpret Jordan so as toprevent raising prejudice in the context of s. 11(b) at all.

25 Jordan’s failure to account for prejudice therefore seems to be adeparture from the interests that s. 11(b) is intended to protect. What Jordanseems to suggest is that it is acceptable for an accused to spend prolongedperiods of time in custody or under onerous bail condition, and that concreteevidence of their suffering is no longer clearly relevant at trial.[34] As the Jordantest prioritizes productivity and division of labour, the analytical focus of s. 11(b)may shift instead to discussions of case management and institutionalinefficiencies. Though these are valid factors to consider in light of the systemicproblem of court delay in Canada, the specific constitutional injuries suffered bythe accused might be lost in the process.[35] Moreover, the inflexibility of the presumptive ceilings means there is noclear way to account for distance from the ceilings, despite the fact thatprejudice tends to increase over time. The lack of nuance associated with thisapproach is counterintuitive: it seems absurd to treat an accused whoexperiences 1 month of delay above the ceiling in the same way as an accusedwho experiences 50 months of delay above the ceiling. The inflexibility of theceilings was the subject of vigorous debate between the majority and the dissentin Jordan, the latter of which argued that the ceilings were too crude to accountfor inherent contextual variations across criminal cases.[36] The concern that Jordan does not appropriately account for distance fromthe ceiling is particularly important for the accused. Some have argued that it issignificantly more difficult for the accused to obtain a stay of proceedings belowthe ceilings than for the Crown to secure a conviction when the ceiling isbreached.[37] Below the ceiling, not only is a case required to take “markedly

26longer” than its typical time requirements, but the accused is expected torespond to delay that may fall outside of their control.[38] Placing theresponsibility on the accused to do this is incongruent with the finding in Askovthat “it is the Crown’s responsibility to bring the accused to trial” and that “anyinquiry into the conduct of the accused should in no way absolve the Crown”from that responsibility.[39] Requiring the accused to take these steps depends entirely on whetherthe delay happens to fall below the ceiling — but not how far below the ceilingthe delay lies. The defence could consequently find itself with a more difficultcase to meet solely on the basis of falling short of the ceiling by a couple ofmonths. In Park, the accused received a stay of proceedings for his impaireddriving charge (2.5 months above the ceiling), but not for the failure to appearcharge that he obtained in the process of those proceedings (0.5 months belowthe ceiling). The latter decision was due to Park’s inability to demonstratedefence initiative — a factor irrelevant in the impaired driving proceeding giventhat the ceiling was exceeded in that case by 2.5 months, and that the Crowncould not justify the breach.[40] Ultimately, excluding the concept of prejudice from the Jordan frameworkrenders the test confusing and open to conflicting interpretations. It alsodistances s. 11(b) from its relationship with s. 7 of the Charter, risking thepossibility that the accused’s suffering will not be given sufficient weight inunreasonable delay applications going forward.

27Recommended revisions With all these concerns in mind, my proposed revisions to the test aredelineated below. The first steps of the Jordan test — subtracting delay causedby the defence, and making the comparison to the 18- and 30-month ceilings —remain intact, as do the test’s transitional provisions. However, I havereintroduced the concept of prejudice into the test by modifying the evidentiaryburdens of both the Crown and the defence. This is done in a way that issensitive both to any actual hardship experienced and to the trial unfairness thatmight be inferred from the length of the delay. If the ceiling is breached, the Crown must demonstrate exceptionalcircumstances that were reasonably unforeseen or unavoidable, and that it tooksteps to mitigate the delay that were proportional to a) any actual prejudiceexperienced by the accused and b) the length of delay that elapsed above theceiling. Similarly, if the delay lies below the ceiling, the defence mustdemonstrate expediting steps that were proportional to a) any actual prejudiceexperienced by the accused and b) the length of delay that elapsed above theceiling, as well as the fact that the case took markedly longer than it should have.As previously mentioned, actual prejudice pertains to tangible harms that theaccused experiences (liberty restrictions, economic hardship, etc.), whileprejudice is inferred according to the distance between the ceiling and the actualdelay experienced. Above the ceiling, the Crown’s justification for delay must now be madewith consideration to the accused’s interests. If the accused is kept in custody, orthe case drags on so long that the fairness of the trial is likely to be

28compromised, it is reasonable to require the Crown to provide more justificationfor the delay. On the other hand, if the delay elapses the ceiling by a couple ofweeks, or if the accused does not suffer, the degree of the Crown’s responsibilityis diminished. Importantly, while the onus for bringing evidence of prejudice waspreviously placed solely on the defence,[41] the ceilings have remained intactthroughout my revisions. If the ceilings are breached, the burden of proofcontinues to lie with the Crown, who must demonstrate exceptionalcircumstances that outweigh any prejudice experienced. Prejudice is accounted for below the ceiling in a similar vein. However,contrary to the majority’s position in Jordan that prejudice is positively correlatedwith defence initiative, this correlation is negative in the revised framework.Essentially, the more prejudice the accused experiences, the fewer expeditingsteps they are required to take. The reasoning for this lies in Askov’s assertionthat the Crown holds the responsibility of bringing the accused to trial in a timelymanner.[42] It is also grounded in the presumption of innocence codified in s.11(d) of the Charter, in that an accused should not be penalized if the Crown failsto prove them guilty in a timely manner. This is not to say that evidence ofexpediting steps will no longer serve to benefit the accused — it is rather thatthey are no longer required to the same extent if the accused experiencessignificant hardship. And though this approach is arguably more favourable tothe accused’s interests, they are still precluded from abusing the process giventhat any delay they directly cause is subtracted from the equation. One might object to opening up the 11(b) test to the same analyticalconfusion that the prejudice criterion created under Morin. However, the

29alternative under Jordan is to shirk considerations of prejudice altogether. Thenew test places prejudice to the accused at the forefront of the analysis, butclarifies its role by distinguishing between actual and inferred prejudice and bydefining it in relation to the actions of the parties involved. These revisionsadmittedly leave Jordan largely open-ended; it is still entirely up to judges todecide whether the prejudice experienced was enough to outweigh the Crown’sexcuses for delay above the ceiling. However, a certain level of judicial discretionis necessary in order to fully capture the contextual circumstances of 11(b) cases,so long as it is conducted within explicit parameters.Conclusion Jordan represents a significant development in the right to be tried withina reasonable time in Canadian law. However, the Jordan framework suffers fromshortcomings with respect to its treatment of prejudice to the accused, andbodes concerning implications for those negatively impacted by state-causeddelay. I have proposed revisions to the Jordan framework that better account forprejudice, thereby ensuring that s. 11(b) is adequately protected. It remains to beseen how the Supreme Court will revisit and clarify the test for cases to come.

30 ReferencesBond, Jennifer. “Failure to Fund: The Link between Canada’s Legal Aid Crisis & Unconstitutional Delay in the Provision of State-Funded Legal Counsel.”National Journal of Constitutional Law 35, no. 1 (December 1, 2015): 1–29.Canadian Charter of Rights and Freedoms, ss. 10(b), 11(b), 11(d), Part I of theConstitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11Code, Michael. Trial within a Reasonable Time: A Short History of RecentControversies Surrounding Speedy Trial Rights in Canada and the United States.Scarborough, ON: Thomson Canada Limited, 1992.Law Reform Commission of Canada. Trial within a reasonable time: A workingpaper prepared for the Law Reform Commission of Canada. Canada CommunicationGroup (1994).LeSage, Patrick J. and Michael Code. Report of the review of large and complexcriminal case procedures. Ministry of the Attorney General (2008). Retrieved from https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/lesage_code/Manarin, Brian. “Bedeviled by Delay: Straight Talk about Memory Loss,Procedural Manipulation and the Myth of Swift Justice.” Windsor Review of Legal andSocial Issues 27 (2009): 117-144.

31Mills v. The Queen, [1986] 1 SCR 863, 1986 CanLII 17 (SCC)Mitchell, Graeme G. “Significant Developments in Criminal CharterJurisprudence in 1992.” Saskatchewan Law Review 57 (1993): 1–46.Off, Carol, and Jeff Douglas. “Ottawa Judge Stays Murder Trial over Delays,Victim’s Mother Calls Justice System ‘Corrupt.’” CBC Radio, November 17, 2016, sec. As ItHappens.Runciman, Bob and George Baker. Delaying justice is denying justice: An urgentneed to address lengthy court delays in Canada. Standing Senate Committee on Legal andConstitutional Affairs (2017).R. v. Askov, [1990] 2 SCR 1199R. v. Coulter, 2016 ONCA 704R. v. Jordan, 2016 SCC 27R. v. Manasseri, 2016 ONCA 703R v. McNab, 2016 SKQB 333R. v. Morin, [1992] 1 SCR 771R v. Park, 2016 SKPC 137R. v. Picard, 2016 ONSC 7061R v. Regan, 2016 ABQB 561

32R. v. Sheldrick, 2017 ONCJ 16R. v. Williamson, 2016 SCC 28Sherrin, Christopher. “Reconsidering the Charter Remedy for UnreasonableDelay in Criminal Cases.” Canadian Criminal Law Review 20, no. 3 (July 2016): 263–93.Sherrin, Christopher. “Understanding and Applying the New Approach toCharter Claims of Unreasonable Delay.” Canadian Criminal Law Review 22, no. 1 (February2017): 1–29.Wheatcroft, Jacqueline M., Graham F. Wagstaff, and Brian Manarin. “TheInfluence of Delay and Item Difficulty in Criminal Justice Systems on Eyewitness Confidenceand Accuracy.” International Journal of Humanities and Social ScienceResearch 1 (2015): 1–9.[1] Patrick J. LeSage and Michael Code, Report of the review of large andcomplex criminal case procedures, Ministry of the Attorney General, 2008, 5.[2] Bob Runciman and George Baker, Delaying justice is denying justice: Anurgent need to address lengthy court delays in Canada, Standing SenateCommittee on Legal and Constitutional Affairs, 2017, 11.[3] LeSage and Code, above n 1, 6-8; Runciman and Baker, above n 2, 12.[4] Christopher Sherrin, “Reconsidering the Charter Remedy for UnreasonableDelay in Criminal Cases,” Canadian Criminal Law Review 20, no. 3 (July 2016):263.

33[5] Jennifer Bond, “Failure to Fund: The Link between Canada’s Legal Aid Crisis& Unconstitutional Delay in the Provision of State-Funded Legal Counsel,”National Journal of Constitutional Law 35, no. 1 (December 1, 2015): 9.[6] Ibid.[7] Runciman and Baker, above n 2, 20.[8] Michael Code, Trial within a Reasonable Time: A Short History of RecentControversies Surrounding Speedy Trial Rights in Canada and the United States.Scarborough, ON: Thomson Canada Limited, 1992, 24-26.[9] R. v. Morin, [1992] 1 SCR 771.[10] Law Reform Commission of Canada, Trial within a reasonable time: Aworking paper prepared for the Law Reform Commission of Canada, CanadaCommunication Group (1994), 118.[11] Sherrin, above n 4, 264.[12] Graeme G. Mitchell, “Significant Developments in Criminal CharterJurisprudence in 1992,” Saskatchewan Law Review 57 (1993): 21-23.[13] R. v. Jordan, 2016 SCC 27.[14] Ibid.[15] Ibid.[16] Ibid.[17] Runciman & Baker, above n 2, 133.[18] Ibid.[19] R. v. Jordan, 2016 SCC 27.[20] Runciman & Baker, above n 2, 67.[21] Bond, above n 5, 10.[22] R v. Park, 2016 SKPC 137.[23] R. v. Askov, [1990] 2 SCR 1199.[24] Jacqueline M. Wheatcroft, Graham F. Wagstaff, and Brian Manarin, “TheInfluence of Delay and Item Difficulty in Criminal Justice Systems on EyewitnessConfidence and Accuracy.” International Journal of Humanities and SocialScience Research 1 (2015).[25] See, for example, Brian Manarin, “Bedeviled by Delay: Straight Talk aboutMemory Loss, Procedural Manipulation and the Myth of Swift Justice,” WindsorReview of Legal and Social Issues 27 (2009).[26] R. v. Williamson, 2016 SCC 28.

34[27] Christopher Sherrin, “Understanding and Applying the New Approach toCharter Claims of Unreasonable Delay,” Canadian Criminal Law Review 22, no. 1(February 2017): 20.[28] R. v. Jordan, 2016 SCC 27.[29] Ibid, para 96.[30] R. v. Manasseri, 2016 ONCA 703; R. v. Picard, 2016 ONSC 7061; R v. Regan,2016 ABQB 561.[31] R. v. Sheldrick, 2017 ONCJ 16.[32] R v. McNab, 2016 SKQB 333.[33] Sherrin, above n 4, 269.[34] Sherrin, above n 27, 20.[35] Ibid.[36] R. v. Jordan, 2016 SCC 27.[37] Sherrin, above n 27, 21.[38] R. v. Jordan, 2016 SCC 27.[39] R. v. Askov, [1990] 2 SCR 1199.[40] R v. Park, 2016 SKPC 137.[41] R. v. Morin, [1992] 1 SCR 771.[42] Ibid.

35The Digital Wild WestUnderstanding the Concept of Organized Cybercrime throughthe lens of Traditional Organized Criminological TheoryRhea HsuPhoto Credit: Shutterstock

36Introduction Within this new Information Age, the emergence of the cyberspace andthe continuous innovations made in the technology and communicationsindustry have greatly influenced the evolution of criminal organizations and theconcept of organized crime. In recent decades, criminals and criminalorganizations have adapted and exploited the technological advancements ofthe Information Age to fit their own purposes, which has led to the prevalence ofa new phenomenon: organized cybercrime. Due to the relative newness of thisphenomenon, much discourse exists today surrounding the lack of a singulardefinition and characterization of what organized cybercrime is. Is organizedcybercrime a newly advanced and unique form of organized crime, or is it simplyan adapted method of facilitating the more traditional crimes of traditionalcriminal organizations? In this paper, I will analyze and explain how organizedcybercrime operates as a distinct form of criminal activity, while retaining asignificant connection with traditional organized criminological theory. I will drawthese conclusions through an examination of the operational structure ofcybergangs, the nature of crimes that are facilitated by or committed via thecyberspace, and the use and role of intimidation and violence in cybercriminality.Global context: Why is organized cybercrime relevant? In 1977, the International Criminal Police Organization (INTERPOL) firstrecognized and fully acknowledged the potential threat of computer-assistedand other computer-related crimes against the international community andnational security. Since then, many other law enforcement agencies and politicalinstitutions have become increasingly aware of the possible uses that criminalorganizations can have for adopting new information and communication

37technologies. 1 In spite of the rapid speed at which information andcommunications technology has evolved in recent decades, criminals andcriminal organizations have displayed an impressive capability for adapting toand exploiting technological advancements, as well as utilizing these newopportunities to pursue their own ends.2 According to Moise, cyberspace and the new innovations incommunication technologies that continue to accompany it possess six distinctfeatures, which, understood in tandem, make the use of technologicaladvancements appealing to criminal organizations. First, it provides substantialanonymity for the user. Second, it can provide credibility through websites andweb pages that create the façade of a legitimate business. Third, it allows for therapid transmission of large quantities of data, which can aid in the speed at whichcrimes are committed. Fourth, the methods are relatively simple and do notusually require one to be overly knowledgeable in computer science. Fifth, itsignificantly reduces the financial costs and physical risks of committing thecrimes. Finally, physical borders or national territories do not limit thecommission of crimes and mobility of criminals through cyberspace.3 Cybercrime deserves further analytic attention because it has a)problematized the traditional relationship between organized crime and territory,b) reduced the risks traditionally associated with criminal behavior, and c)preserved traditional criminal avenues while opening up new ones.1 Barry A.K. Rider, “Cyber-Organised Crime: The Impact of Information Technology on Organised Crime,” Journal ofFinancial Crime 8, no. 4 (2001).2 Adrian Cristian Moise, “Some Considerations on the Phenomenon of Cybercrime,” Journal of Advanced Research inLaw and Economics 5, no. 1 (2014).3 Ibid.  

38 First, since the early emergence of organized crime, criminal organizationshave been comparable to Olson’s idea of a “stationary bandit,” whocontinuously stole from a given group of victims in the form of taxation whileprotecting them from being robbed by other bandits.4 According to Olson, somestationary bandits evolved over time to encompass global spaces, becomingmodern-day democratic governments (otherwise known as the state), whileothers remained in their lower levels of evolution, restricted to localenvironments, such as Mafias and Triads.5 In both cases, criminal organizationsoperated in contoured, perceptible spaces that law enforcement agencies couldprecisely calibrate their responses towards. However, with the new InformationAge, a new aspect of territory has emerged that is not entirely understandablethrough the concept of boundaries: the cyberspace. This novel space hascreated a vacuum within the criminal sphere that has made opaque the onceperceptible distinction between stationary bandits, their transient counterparts,and those who operate beyond their local communities. Second, the creation of this new, territorially ambiguous cyberspace hasgiven organized cybercrime a cross-border, global dimension.6 According toMoise, this intangibility has carved out a significant amount of spatial andtemporal distance between the criminal and the criminal act being committed,7significantly reducing the risks traditionally associated with criminal behavior(interaction with law enforcement officers, immediate retaliation from targets,revealing one’s identity).4 Mancur Olson, “Dictatorship, Democracy, and Development,” The American Political Science Review 87 (1993):568.5 Ibid.6 Adrian Cristian Moise, “Some Considerations on the Phenomenon of Cybercrime,” Journal of Advanced Research inLaw and Economics 5, no. 1 (2014).7 Ibid.

39 Finally, cyberspace has protected and facilitated the commission of moretraditional crimes, such as child pornography and drug trafficking, and allowedfor a relatively new wave of crimes committed exclusively online, such as thoseinvolving e-currency and online banking.Cybergangs: Operational Structure and System of OrganizationI: Vertical vs. Horizontal Systems of Order Over the past few decades, it has been observed that the hierarchicalsystem and operational structures of criminal organizations have evolved fromtraditional crime business models founded on familial relationships and kinship,to morphing criminal gangs based on skills and mutual interests.8 According toCatino, almost all criminal organizations fall under these two forms (or even bothforms) of organizational structure, characterized as either a) a vertical order ofoperations, or b) a horizontal order of operations.9 Many traditional criminal organizations adopt a vertical order ofoperations, as they require a centralized authority, and a systemic process formaking decisions, to function effectively.10 One example of this hierarchal systemcan be found in the structural organization of the Cosa Nostra. According to VonLampe, the Magliocco family, one of the major families making up the CosaNostra, was segregated into three levels of authority: first, there was theleadership, which consisted of the boss and the underboss; second, there werethe middlemen, known as the caporegime; finally, there were the ordinary8 G. Stevenson Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no. 1(2015).      9 Maurizio Catino, “How Do Mafias Organize? Conflict and Violence in Three Mafia Organizations,” EuropeanJournal of Sociology 55, no. 2 (2014).10 Ibid.

40members, known as the soldiers.11 With traditional hierarchical systems like these,roles are defined at each level, and members are bound by the obligations thatcome with their position. However, members in lower positions are faced withrestrictions that do not apply to higher-ranking members, and the former areoften the subject of punishments handed out by the latter.12 On the other hand, in a horizontal system of order, power is equallydistributed amongst members of the organization.13 As such, characteristicallyhorizontal or flat systems usually lack a rigid centralized authority figure andadopt a flexible decision making process.14 Moreover, according to Catino, theless that an organization tries to control the actions of its members — minimizingthe chain of command and thus reducing communication between members —the less likely it is that the actions of the criminal organization would be detectedby law enforcement.15 This positive correlation does, however, work againstcriminal organizations as well. For example, when criminal organizations adopt adecentralized, horizontal structure of operations, it mutes the possibility ofassigning command responsibility to bosses and leaders during criminalprosecution, who would become liable for all of the crimes that the organizationis responsible for committing.16 Instead, the responsibility is shared equally by all,expanding the ambit of culpability.11 Klaus von Lampe, Organized Crime: Analyzing Illegal Activities, Criminal Structures, and Extra-Legal Governance(Los Angeles: SAGE, 2016).12 G. Stevenson Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no.1(2015).13 Maurizio Catino, “How Do Mafias Organize? Conflict and Violence in Three Mafia Organizations,” EuropeanJournal of Sociology 55, no. 2 (2014).14 G. Stevenson Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no.1(2015).      15 Maurizio Catino, “How Do Mafias Organize? Conflict and Violence in Three Mafia Organizations,” EuropeanJournal of Sociology 55, no. 2 (2014).16 Rafael Etges and Emma Sutcliffe, “An Overview of Transnational Organized Cyber Crime,” Journal of DigitalForensic Practice 3, (2010).

41 Cybergangs, more often than not, take on a horizontal system of order,and are generally comprised of “a loose federation of skilled, criminal hackerswho have developed their reputations online and who have morphed together orbeen recruited to attack a target.”17 This is because the interactions betweenmembers within a typical cybergang are not like orders from a boss or leader to agroup of criminal subordinates. Instead, members of cybergangs are usuallyequally capable in their computer-related skills, and thus all have the same levelof authority within the operational scheme and the planning process.18 Much likethe structures of narcotics and terrorist organizations described by Björnehed,19cybergangs make use of widespread cells, composed of a small number ofindividuals, in their criminal operations. 20 This way, when a cyber attack islaunched, one cell of cybercriminals could be responsible for one step of theattack, while another cell of different hackers holds the skills needed for the nextstep of the attack. Additionally, like numerous criminal organizations that hireother non-gang members for jobs that the organization has no capacity toperform, cybergangs also exhibit an inclination towards the hiring of non-gangmembers.21 According to Smith, these non-gang members are often hired to actas money mules, who collect and safely transfer the stolen funds or equipmentback to the cybergangs.22 Furthermore, due to the globalized dimension of thecyberspace, cybergangs are not bound or limited by national or physicalborders.23 As such, similar to transnational criminal organizations, cybergangs are17 Ibid. 107-108.18 Ibid.19 Emma Björnehed, “Narco-Terrorism: The Merger of the War on Drugs and the War on Terror,” Global Crime 6, no.3 & 4 (2004).20 G. Stevenson Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no.1(2015).21 Ibid.22 Ibid.23 Adrian Cristian Moise, “Some Considerations on the Phenomenon of Cybercrime,” Journal of Advanced Research inLaw and Economics 5, no. 1 (2014).  

42often comprised of members from various nationalities; but unlike transnationalcriminal organizations, physical distance has little to no influence over thefacilitation of their criminal activities.24II: Loyalty, Membership, and Recruitment Regarding membership, traditional criminal organizations, such as theNeapolitan Camorra, recruit their members based on kinship and run their mafiaenterprise similar to how one would run a family business.25 Kinship is oftenpreferred in traditional criminal organizations because “ethnic ties provide thestrongest possibility of ensuring trust among persons who cannot rely on the lawto protect their rights and obligations within cooperative but outlawed economicactivity.”26 Moreover, when kinship is valued amongst criminal organizations, it isbecause, by giving them the incentive of possibly inheriting or having asignificant influence on the business in the future, their self-interests are alignedwith those of the family — resulting in lower chances of betrayal or disloyalty.Finally, recruiting members based on kinship can act as a method of “hostagetaking,” with a member’s family being used as leverage during instances ofdisloyalty or deviation. 27 However, not all mafias and criminal organizationsrecruit members based on kinship and family ties. Factors such as kinship and family ties play a minor, if any role whencybergangs operate online. Different types of criminal organizations require24  Rafael Etges and Emma Sutcliffe, “An Overview of Transnational Organized Cyber Crime,” Journal of DigitalForensic Practice 3, (2010); Adrian Cristian Moise, “Some Considerations on the Phenomenon of Cybercrime,”Journal of Advanced Research in Law and Economics 5, no. 1 (2014).  25  Paolo Campana and Federico Varese, “Cooperation in criminal organizations: Kinship and violence as crediblecommitments,” Rationality and Society 25, no. 3 (2013).26 Dwight C. Smith, “Paragons, Pariahs, and Pirates: A Spectrum-Based Theory of Enterprise,” Crime & Delinquency26, no. 3 (1980): 375.27 Paolo Campana and Federico Varese, “Cooperation in criminal organizations: Kinship and violence as crediblecommitments,” Rationality and Society 25, no. 3 (2013): 270.

43different types of operational needs. Mafias value kinship and family becauseconnections, contacts, and favours are needed for business to thrive. Thesefeatures are contingent on reputation, which itself is dependent ontrustworthiness.28 However, with cybergangs, trust between members is not arequisite for either building a reputation or forming alliances.29 This is a productof the aforementioned flat structure of operations and the independent nature ofmembers within a cybergang. The only linkage between cyber criminals is thecommon target they have assembled to attack. This linkage requires capabilityrather than trust.30 Thus, cybergangs will find little to no need for basing theircriminal relationships on reputation, as there is nothing compelling the formationof intimate connections or the exchange of favours. The lack of trust between members of a cybergang raises an importantquestion — posed by Von Lampe (2016) — as to why cybercriminals, despite thelack of trust between them, are still willing and able to cooperate and coordinatewith each other to commit crimes. 31 While trust and loyalty are crucialcomponents for criminal organizations to survive, this relationship dynamic isdifferent once it enters the cyberspace, removing the need for the former andlatter. This is due to two main factors: the methods of communication incyberspace and the differentiation in skills.3228 Diego Gambetta, The Sicilian Mafia: The Business of Private Protection (Massachusetts: Harvard University Press,1996).29 G. Stevenson Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no.130(2Ib0i1d5, )   : 107.  (31LKoslaAuns gveolnesL: aSmApGeE, O, 2r0g1a6n)i.z e  d Crime: Analyzing Illegal Activities, Criminal Structures, and Extra-Legal Governance132(2G0.1S5t)e:v1e0n7s.o  n Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no.

44 The cyberspace provides a more discrete and secure space forcommunication between cybercriminals, in the form of secured online networksand criminal chat rooms,33 allowing for a form of cooperation that relies less ontrust and loyalty. For example, while cyber communication minimizes the risk of acybercriminal accidentally revealing their criminal identity to an undercoveragent,34 members of traditional criminal organizations would need to physicallymeet to finalize deals and commit crimes — an arrangement requiring strongerlevels of trust and loyalty due to the increased risk of exposure. In fact, in theformer arrangement, the participants would never need to know each other’sidentity to proceed with their plans, whereas the latter would demand it.35 Furthermore, the method by which cybercrimes are committed often allowfor cooperation without the traditional requisites of trust or loyalty. Cybercrimesusually involve numerous steps that each requires relatively different types ofskills, ranging from hacking, programming, encryption breaking, and more. As aresult, cybercriminals with varying computer and software specialties usuallycombine or are recruited to form cybergangs designed for certain targetedattacks. In this way, cybercriminals morph into cybergangs due to individualisticinterests and not, as would be found in traditional criminal organizations, acollective purpose. This atomization diminishes the need for trust and loyalty toconduct operations and maintains a chasm between co-conspirators.33 Susan W. Brenner, “Organized cybercrime? How cyberspace may affect the structure of criminal relationships,”North Carolina Journal of Law & Technology 4, no. 1(2002).34 Ibid.135(2G0.1S5t)e.v   enson Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no.

45The Nature of Crimes Committed in Cyberspace Leukfeldt et al. explain that one of the biggest problems with the conceptof organized cybercrime is the complexity that arises from the fact that “itencompasses an extremely broad range of different crimes.”36 However, whenone fully understands the dynamics of organized cybercrime, there is a clear,persisting connection with traditional criminal activities. McCusker identifiesthree types of “generic cyber crime threats.” The first consists of “offencesagainst the confidentiality, integrity and availability of computer data andsystems,” usually achieved through methods such as hacking, espionage, andthe interception of information. The second type consists of “computer-related‘traditional’ crimes,” such as fraud and forgery, and the last consists of “offencesrelating to the infringement of copyright and related rights,” such as the illegalreproduction and distribution of copyrighted software programs.37 What thesethree types of cyber crime have in common is that all are used for profit-makingpurposes, which is often one of the defining characteristics of a traditionalcriminal organization. 38 This connection between cybercrime and traditionalcriminal activities goes even further when one examines the ways in whichtraditional criminal organizations have appropriated cyber technology for theirown ends. Traditional criminal organizations use and exploit new opportunitiesprovided by innovative technologies and the Internet for their own nefariousends, albeit, within the confines of conventional criminal activities. Although36 E. Rutger Leukfeldt, Anita Lavorgna and Edward R. Kleemans, “Organised Cybercrime or Cybercrime that isOrganised? An Assessment of the Conceptualism of Financial Cybercrime as Organised Crime,” European Journal onCriminal Policy and Research 23, (2017): 288.37 Rob McCusker, “Transnational organised cyber crime: Distinguishing threat from reality,” Crime Law Society &Change 46, (2006): 268.(38LKoslaAuns gveolnesL: aSmApGeE, O, 2r0g1a6n)i.z e  d Crime: Analyzing Illegal Activities, Criminal Structures, and Extra-Legal Governance

46these groups focus primarily on traditional types of crime, such as fraud, moneylaundering, extortion, and illicit trafficking, they also use the cyberspace andother technological advancements to augment their criminal operations.39 Forexample, there have been various instances in which criminal organizations havefacilitated prostitution, illicit drug trafficking, and arms trading on the cyberspaceby utilizing encrypted websites and criminal chat rooms. These mechanisms allowfor faster, easier, and more secure forums for organizing business arrangementsand communicating with partners. In this sense, traditional criminal organizationsuse the cyberspace to build on their non-digital criminal operations, rather thanengage in a new form of virtual online criminality.40 However, traditional criminalorganizations have, in more recent times, begun to hire or recruit cybergangsand cyber criminals to carry out increasingly unconventional, digital only crimesin the cyber space.41 For example, in 2000, a Sicilian mafia group created a cloneof the Bank of Sicily’s online website, with plans “involving the diversion of $400million allocated to the Bank by the European Union for regional projects withinSicily.”42 However, while virtual crimes committed exclusively in the cyberspaceyield appreciable profits, those quantities are dwarfed by the incomes generatedby traditional activities. For this reason, profits made from cybercrimes are oftenutilized as a secondary fund for traditional crimes rather than a primary source ofrevenue.4339 Kim-Kwang Raymond Choo, “Organised crime groups in cyberspace: a typology,” Trends in Organized Crime 11,(2008).C40hRaonbgeM4c6C, u(2sk0e0r6,)“:T2r6a8n.s  national organised cyber crime: Distinguishing threat from reality,” Crime Law Society &(4120K0i8m)-. K   wang Raymond Choo, “Organised crime groups in cyberspace: a typology,” Trends in Organized Crime 11,C42hRaonbgeM4c6C, u(2sk0e0r6,)“:T2r6a8n.s  national organised cyber crime: Distinguishing threat from reality,” Crime Law Society &43 Rafael EPtrgaecstiacned3E, (m2m01a0S).u   tcliffe, “An Overview of Transnational Organized Cyber Crime,” Journal of DigitalForensic

47 On the other hand, there is a new, emerging brand of organized crimethat is starting to separate the existing connections between traditionalcriminality and cyber technology: cybergangs. Cybergangs have developed areputation for engaging in complicated and sophisticated cybercrimes that arecarried out exclusively over the cyberspace.44 These organized cyber criminalgroups are known to be involved in extensive hacking and phishing schemes,spamming, and the creation of malware to steal sensitive information.45 Moreimportantly, cybergangs tend to feature horizontal operational structures, ratherthan vertical ones, distinguishing them from their traditional counterparts. Thesedistinctions aim to move beyond a one-dimensional characterization oforganized cyber crime’s relationship with traditional criminal activity, from theview of absolutely similarity or complete difference, to one that acknowledgesthat separation can be created without releasing significant connections.The Use of Violence and Intimidation The limited role violence plays in cybergang activity is a stark departurefrom its importance in the functioning of traditional criminal organizations.According to Gambetta, violence is a resource or an instrument that can be usedby criminal organizations as a means to achieve their goals. In other words,violence in itself is not the objective, but rather, it is a means to an end. As aninstrument that can be used, violence can thus also be managed, controlled, andcontained by a criminal organization.46 For cybercrime groups, this violence plays144(2G0.1S5t)e.v   enson Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no.(4520K0i8m)-. K   wang Raymond Choo, “Organised crime groups in cyberspace: a typology,” Trends in Organized Crime 11,1469D96ie)g.  o Gambetta, The Sicilian Mafia: The Business of Private Protection (Massachusetts: Harvard University Press,

48a very minimal role within the dynamics and functioning of cybergangs.47 Thisdeviation from traditional models of organized crime is, however, consistent withtraditional criminological theory. Organized criminological research hasuncovered a positive relationship between the use of violence and the level ofcompetition that exists between criminal organizations.48 Due to the intangiblenature of the cyberspace, and its global dimension, this relationship does notsurface in cybergang communities. For example, according to Smith, cybergangsdo not participate in violent territorial disputes because they are not profitingwithin any restricted geographical region.49 Similarly, the Council of Europe notesthat, because cybercrime involves little to no control over territory, cybergangshave minimal requirement to use violence and intimidation.50 For this reason,while traditional criminal organizations rely heavily on violence as a means ofacquiring, controlling, and protecting territory, cybergangs find little to no use inthese instruments, since there is no territory to battle over. In addition, cyberspace, due to its digitized nature, rarely if ever requires participants to physicallyengage in their activities. Thus, cyber criminals avoid physical confrontations,interactions with other criminals, or any other form of engagement that wouldrequire physical violence. In this way, the role of violence in cyber crime is greatlydiminished in everyday operations.47  Rob McCusker, “Transnational organised cyber crime: Distinguishing threat from reality,” Crime Law Society &CCrhiamnege224,6n, o(2. 010(260);1G5).. S   tevenson Smith, “Management models for international cybercrime,” Journal of Financial48 Angelica Duran-Martinez, “To Kill and Tell? State Power, Criminal Competition, and Drug Violence,” Journal ofConflict Resolution 59, (2015); Richard Snyder and Angelica Duran-Martinez, “Does illegality breed violence? Drugtrafficking and state-sponsored protection rackets,” Crime Law Social Change 52, (2009).149(2G0.1S5t)e.v   enson Smith, “Management models for international cybercrime,” Journal of Financial Crime 22, no.50 Rob McCusker, “Transnational organised cyber crime: Distinguishing threat from reality,” Crime Law Society &Change 46, (2006)

49Limitations The common parallels that researchers often try and draw betweenorganized cybercriminal groups and traditional mafias are faced with pressinglimitations.51 There are central characteristics of traditional criminal organizationsthat must be reconsidered when groups are operating in cyberspace.52 Forexample, in illicit online trading forums, Lusthaus notes that, although thereexists a well-defined hierarchical system in the form of online administrators, aprofit-seeking objective, and an attempt to offer protection services,53 there alsoexist inherent limitations in comparing this form of cyber criminality withtraditional mafias. For example, protection services offered in online forums areweak and difficult to guarantee, because the “monitoring and enforcement [ofonline transactions and trade deals] are virtual rather than physical.”54 Similarly,whereas mafias use violence and intimidation to ensure guarantees, theadministrators and moderators of online trading forums are unable to do so.Instead, “the most serious and effective form of punishment in a forum isexclusion…[which] prevents someone from operating in a key marketplace.”55However, this does not prevent them from creating a new username for theforum and operating under different or even multiple online identities.56Conclusion When examining cybergangs through the prism of violence andintimidation, embedded operational structures, and the nature of crimescommitted, the distinction between traditional criminal organizations and their51 Jonathan Lusthaus, “How organised is organised cybercrime?” Global Crime 14, no. 1(2013).52 E. Rutger Leukfeldt, Anita Lavorgna and Edward R. Kleemans, “Organised Cybercrime or Cybercrime that isOrganised? An Assessment of the Conceptualism of Financial Cybercrime as Organised Crime,” European Journal onCriminal Policy and Research 23, (2017).53 Jonathan Lusthaus, “How organised is organised cybercrime?” Global Crime 14, no. 1(2013): 56.54 Ibid.55 Ibid.56 Ibid.

50cybercriminal counterparts is palpable. Yet, the merging of traditional organizedcrime and organized cybercrime under a single concept is a common narrative inpublic policy initiatives. As pointed out by Von Lampe, policymakers and mediaforums have exhibited a history of using overarching labels to target certaingroups and emphasize the seriousness and realness of the threat they pose, evenif this means homogenizing two very distinct forms of criminality. Nevertheless,the connections between traditional and emerging forms of organized crimeshould be acknowledged. As organized crime further shifts along the beat oftechnological and social progress, the nuanced relationship betweenconventional and unconventional forms of criminality, as both distinct butconnected entities, ought to be focal point in academic and political discussion.