WHETHER ANTI-GANG LAW STAYS OR GOES, JUDGE PROTECTED OUR RIGHTS

The fight against organized crime just got tougher. But all is not lost.
British Columbia Supreme Court Justice Heather Holmes recently declared
unconstitutional part of Canada's four-year-old anti-gang legislation which
makes it an offence for a member of a criminal organization to instruct
people to commit crimes on behalf of the organization.

Holmes concluded that the law violates the Charter of Rights because the
Criminal Code definition of "criminal organization" is unconstitutionally
vague. The Code defines a "criminal organization" as "a group, however
organized, that is composed of three or more persons ... and has as one of
its main purposes" the facilitation of serious offences likely to benefit
the group. Serious offences are those punishable by five years or more in jail.

The law is clearly aimed at crime syndicates, but Holmes concluded that the
definition doesn't provide a clear "legal basis on which a person may
determine whether he or she is one of those persons." In other words, under
the definition, a person could be aware of the existence of a criminal
organization, yet unaware that he or she is considered part of that group.

As an example, Holmes noted that a martial arts teacher could give lessons
to members of a criminal gang knowing that the gang uses his techniques to
deliver beatings to other gang members. Holmes noted that the teacher would
have no basis on which to determine whether he qualifies as a member of the
criminal group. This, of course, is a serious problem, since people
convicted under the law would face life in prison.

Further, Holmes concluded that the law's vagueness also affects law
enforcement, since the police would have difficulty knowing when to apply
this section of the Criminal Code.

Consequently, Holmes declared the law unconstitutional because of its
vagueness, which means it's no longer operative in B.C. (The B.C. decision
isn't binding in other provinces, though Holmes's judgment might have a
persuasive effect on other courts.)

Holmes's judgment isn't terribly surprising since the law does seem
unusually vague. It's also not surprising that the police were unhappy with
her judgment. After all, police have for years had trouble laying charges
against gang leaders who pull the strings but don't necessarily commit
illegal acts, and the impugned law was designed to remedy this problem.

Nevertheless, not all is doom and gloom. The police aren't entirely
powerless without the benefit of this law, since gang leaders can still be
charged under other criminal legislation (though, admittedly, that is,
often difficult). And the federal Justice Department confirmed on Tuesday
that it would appeal Holmes's decision, which means the law might
ultimately live to see another day.

If the higher courts declare the law valid, they will have to provide some
advice on how to interpret the law so that it's not unconstitutionally
vague. This will preserve Canadians' constitutional right not to be subject
to vague laws and will also help law enforcement in applying the law.

If, on the other hand, the higher courts agree with Holmes's conclusions,
it will be up to Parliament to fashion a new law with a tighter definition
of "criminal organization." That too would preserve our constitutional
rights and aid the police.

So Holmes's decision, while a temporary setback in the fight against
organized crime, could lead to changes that will benefit us all.