Canada's anti-gang legislation unconstitutional

Update:12/13/05....
Canadian Press

VICTORIA — The federal Crown intends to appeal a B.C. Supreme Court ruling striking down a section of the Criminal Code used by police to fight organized crime.

"It's our view that the judge erred in her interpretation of the law and we feel it's appropriate that the Court of Appeal consider the decision," Bob Prior, B.C.'s director of federal prosecution services, said on Tuesday. Prior expects the appeal to be launched within days while the case could be heard in court early next year.

Here's hoping.....

From CTV:

Last summer, B.C. police set out to prove that the Hells Angels are one of the most powerful biker organizations on the planet, and that under the Criminal Code of Canada the Angels fit the description of a criminal organization.

Police made two major raids and arrested 18 people with the intention of going after the leaders, those who rarely commit crimes themselves but allegedly pull the strings behind the scenes.

A B.C. Supreme Court judgment last week has found a similar arrest to be unconstitutional therefore the case has been put into jeopardy.

Justice Heather Holmes ruled that section 467.13 of Canada's anti-gang legislation "is of no force and effect," and that "Parliament had a constitutional duty to make clear the legal basis on which a person may determine whether he or she is one of those persons and to guide law enforcement officials in the application of the provisions,"

Basically, the Code just isn't clear enough about exactly what constitutes a criminal organization.

The ruling was made last week, but was under a publication ban until today.

Both the Hells Angels and the RCMP expect the B.C. Crown Attorney's office to appeal the ruling.

Here is the act as found on the Department of Justice Canada web site.

467.1 (1) The following definitions apply in this Act.

"criminal organization" « organisation criminelle »
"criminal organization" means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

"serious offence" « infraction grave »
"serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.

Facilitation
(2) For the purposes of this section and section 467.11, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.

Commission of offence
(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.

Regulations
(4) The Governor in Council may make regulations prescribing offences that are included in the definition "serious offence" in subsection (1).

1997, c. 23, s. 11; 2001, c. 32, s. 27.

Participation in activities of criminal organization
467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) the criminal organization actually facilitated or committed an indictable offence;

(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;

(c) the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or

(d) the accused knew the identity of any of the persons who constitute the criminal organization.

Factors
(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;

(b) frequently associates with any of the persons who constitute the criminal organization;

(c) receives any benefit from the criminal organization; or

(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.

2001, c. 32, s. 27.

Commission of offence for criminal organization
467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.

2001, c. 32, s. 27.

Instructing commission of offence for criminal organization
467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.

Prosecution
(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) an offence other than the offence under subsection (1) was actually committed;

(b) the accused instructed a particular person to commit an offence; or

(c) the accused knew the identity of all of the persons who constitute the criminal organization.

2001, c. 32, s. 27.

Clear as mud to me. Guess I shuld have stayed in school for a few more years.

Does this meen that Stephen Harper might yet have to appologize to the liberals for his comment refering them to a "criminal organization"? I can't help but wonder if Justice Heather Holmes leans a little to the left on the political scale.