B.C. COURT STRIKES DOWN GANG LAW

VANCOUVER -- A key part of Parliament's recent crackdown on organized
crime groups such as the Hells Angels has been thrown out as
unconstitutional in a B.C. Supreme Court ruling released yesterday.

In the first ruling in the country on a central section of the federal
anti-gang law, Madam Justice Heather Holmes stated that the
four-year-old law was too vague, failing to spell out who would be
considered a member of a criminal organization and who would not.

"Parliament has a constitutional duty to make clear the legal basis on
which a person may determine whether or not he or she is one of those
persons, and to guide law enforcement officials in the application of
the provisions," she stated in a 46-page ruling.

The decision is expected to influence the fight against organized
crime in every province, placing some investigations and court cases
in abeyance until federal Crown prosecutors decide whether to file an
appeal.

"It's a real setback," said Bob Paulson, the director-general of major
and organized crime in the RCMP's criminal intelligence section in
Ottawa.

"It was a significant piece of legislation and a welcome addition to
the fight against organized crime," he said in an interview. "For us,
it is absolutely crucial that this get resolved as quickly as possible."

The case involved the first use of the provision of the anti-gang law
in B.C. to charge the head of an alleged criminal organization. The
legislation sets out new offences, reduces the number of people that
can constitute a gang to three from five, and removes a requirement
that some members have committed serious criminal offences. The new
law also increases sentences and provides stronger protection for
witnesses and jurors.

Judge Holmes quashed section 467.13 of the Criminal Code that deals
with "being one of the persons who constitute a criminal
organization." The ruling does not touch other provisions of the
anti-gang law that refer to participating in or contributing to
activity of a criminal organization, or committing a crime for the
benefit of the gang.

In her reasons for judgment, Judge Holmes wrote that it was not
difficult to envision circumstances in which a person may be aware of
a criminal gang but be unaware he or she may be considered part of
it.

Referring to hypothetical situations to illustrate the vagueness of
the law, she wrote about a martial arts teacher who gives lessons to
members of a known criminal gang, aware that they use the techniques
in beatings. She questioned whether the law provides a basis on which
the teacher could determine whether he or she is also a member of the
"group" known to police as a criminal organization.

"The legislation requires an accused to be one of the persons who
constitute the criminal organization and therefore has an obligation
to define criminal organization in a fashion that enables a person to
determine whether he or she is one of those persons," she wrote.

Her ruling was issued last week under a publication ban. In response
to an application yesterday by The Globe and Mail and The Vancouver
Sun, the judge lifted the restriction on reporting about the
unconstitutionality of the law. However, she banned reporting any
information that would reveal the identity of those who were charged,
concluding that a limited ban is necessary to preserve the integrity
of a jury trial that is to begin early next year.

Chief Superintendent Paulson, who previously served as the RCMP's
biker expert in British Columbia, has been involved in high-profile
busts of Hells Angels members.

The RCMP strategy has been to go after the heads of groups that are
the most significant threat to the community, he said. "This piece of
legislation was designed to bring more significant penalties to those
who instruct the commission of an offence in association with criminal
organization. It takes that strategy away from us," he said.

The RCMP in B.C. made "tremendous headway" over the past year in
working with police forces in the Greater Vancouver Region, targeting
the heads of organized crime and having them charged, he said.

"[The ruling] really gets in the way of our investigation," he added.
Without the provision, police will revert to their traditional
approach of chasing suspects, he said.

Defence lawyer Matthew Nathanson, who was representing a person
charged under the provision, said the ruling was an affirmation of an
individual's right to liberty and privacy. "Every citizen must be able
to know the boundary of risk, what they are allowed and not allowed to
do," he told reporters outside the courthouse.

"This is bad legislation, overly broad," he said. "It captures too
much activity that should not be subject to the strict penalties for
the criminal law."

A spokesperson for the Crown office said later that federal
prosecutors were reviewing the decision "with an eye to appeal," but
no comment would be made until they decide whether an appeal will go
ahead.