THE COMPANY YOU KEEP

Gangsters are bad people, and we really would advise people to be
discriminating in the friends they keep, but hanging out with
criminals shouldn't be enough to get the police on your case.

In a decision made public last Monday, Justice Heather Holmes of
B.C.'s Supreme Court overturned a four-year-old section of the
Criminal Code that targeted gang leaders. The controversial sections
aimed to make it an offence to be a gang member who gives an order to
someone else to commit an offence.

That may sound like a reasonable aim, but Judge Holmes rightly threw
out the law on the grounds that it was too vague. The ruling only has
legal force in B.C. but the judge's reasoning could reverberate across
in Canada, throwing other prosecutions into doubt. It's certainly
impaired the Crown in the case before her, the details of which are
covered by a publication ban. The federal Department of Justice is
appealing; the Supreme Court of Canada will likely weigh in eventually.

The particular section of the Criminal Code at stake makes it an
offence punishable by up to a life sentence to be "one of the persons
who constitute a criminal organization, and (who) instruct(s) a person
to commit an offence under a federal statute for the benefit of, at
the direction of, or in association with, a criminal
organization."

Confusing? Judge Holmes thought so. Specifically, she demanded to know
how a person determines whether he or she is "one of the persons who
constitute a criminal organization." Her ruling pores over the letter
of the law in both the English and French versions of the code, and
finds that it does an inadequate job of delineating the edges of a
criminal organization. Is a martial-arts instructor who gives lessons
to gangsters a member of the gang? Maybe, maybe not. Such vagueness is
contrary to the principles of fundamental justice, found Judge Holmes,
so she struck the law down.

Her confusion is the inevitable consequence of anti-gang laws
generally -- laws that impose different penalties on different people
for the same crimes, be they assault or drug-dealing or murder. The
penalties vary depending on the circumstances of the accused's life,
namely, whether he or she associates with crooks. Criminal groups
aren't always careful with their membership rolls; creating offences
that rest on how one defines gang membership is an intrinsically
dubious exercise.

Police like anti-gang legislation because it helps them pursue people
they believe are bad guys but on whom they can't pin specific criminal
acts. But proof of having committed a specific criminal act is
supposed to be the foundation of a conviction.

Should there not be a right to associate freely, even with unsavoury
people? As a general principle, the state should prosecute you only
for what you do, not for why you do it or whom you do it with (though
it's appropriate to discuss extenuating or aggravating circumstances
at the sentencing stage). Committing an assault or a robbery is crime
enough, regardless if it's committed in association with people who
wear the same leather jackets or grew up in the same
neighbourhood.

If you want to attend a motorcycle gang's Christmas party but don't do
anything otherwise illegal yourself, that's your right as a free person.