RULING HOBBLES ORGANIZED CRIME BATTLE, POLICE SAY

A new section of the Criminal Code under which three B.C. Hells Angels
were charged this year with being members of a criminal organization
has been struck down by a B.C. Supreme Court judge.

It was the first time Section 467.13 of the code -- which makes it
illegal for a member of a criminal organization to instruct someone
else to commit an offence -- has been challenged in any Canadian court
since it became law in January 2002.

B.C. Supreme Court Justice Heather Holmes concluded the law was too
broad and vague, and therefore violated the constitution. Her ruling
has dealt a major blow to police efforts to crack down on organized
crime.

"We're back to struggling with targeting organized crime. This was a
very powerful tool to go after the heads of these groups, and we
haven't got it anymore," said RCMP Chief Supt. Bob Paulson, a biker
gang expert.

"So, [the ruling] kind of takes away that strategy."

Paulson, who was just promoted to director-general of major and
organized crime intelligence at RCMP headquarters in Ottawa, added:
"Law-enforcement across the country are turning their minds to this
decision here to see what is going on."

The Department of Justice says there were three cases before the
courts in B.C. involving charges under 467.13, including one Holmes
ruled on -- considered a test case in B.C. -- which has a publication
ban protecting the name of the accused and details of the crime.

The other cases involved Eric Brendan Montgomery, the alleged
ringleader of the Dark Alley gang, who is accused of running a Lower
Mainland crime ring; and Hells Angels members Ronaldo Lising, John
Punko and Randall Potts, who were charged with 16 other gang members
or associates in July.

B.C. Attorney-General Wally Oppal said in an interview Monday those
charges are quashed.

"The Supreme Court judge has ruled that the section is of no force and
effect. So, there wouldn't be any charges that would proceed," he said.

But he noted other charges the accused in those three cases were
facing would still stand.

In the case of some of the Hells Angels, those include charges under a
related, but less serious, section of the Criminal Code, 467.12, which
makes it illegal to commit an offence in association with a criminal
organization. That section survived a similar court challenge recently
in Ontario.

Oppal said the federal Department of Justice, which tried the case
before Holmes because it involved alleged drug offences, will decide
whether to appeal. The province may join any appeal, he added.

Holmes' ruling does not strike down the law in other provinces, said
Oppal, a former judge, but her decision could be "persuasive" to other
judges considering similar cases across Canada.

He did not think Holmes' ruling was disastrous for police, saying the
federal government could eventually amend the legislation by
"tightening up" the definition of a criminal organization.

Police and prosecutors in B.C. laid an unprecedented number of charges
between late 2004 and 2005, resulting in 45 Hells Angels or their
associates being arrested. Many of those charges fell under Sections
476.12 and 476.13.

Rick Ciarniello, a Vancouver Hells Angels member who speaks for the
group, criticized the new law for trying to target a large number of
people under unclear guidelines. The Hells Angels maintain they are
not a criminal organization.

Defence lawyer Matthew Nathanson, who successfully argued before
Holmes, said wiping 476.13 "off the books" is an affirmation of
people's rights because the legislation gave police unfair powers to
gather information from wiretaps and other evidence while
investigating organized crime.

Holmes' ruling was made last Thursday, but could not be reported on
until Monday after lawyers for media outlets, including The Vancouver
Sun, argued a publication ban should be lifted. Holmes ruled the
definition of a member of a criminal organization was too vague for an
offence that carried a maximum penalty of life in prison.

She added that "Parliament had a constitutional duty to make clear the
legal basis" on which a person is deemed to be a member of a criminal
organization, and that 467.13 failed to do that and therefore
"violates . . . the Charter."

[sidebar]

MEMBERSHIP IN A CRIMINAL ORGANIZATION:

Section 476 of the Criminal Code deals with criminal organization
offences. The legislation broadens a previous organized crime law, and
was brought into force Jan. 7, 2002. It contains three offences:

- - Section 476 of the Criminal Code deals with criminal organization
offences. The legislation broadens a previous organized crime law, and
was brought into force Jan. 7, 2002. It contains three offences:

- - 467.11: knowingly participating in or contributing to any activity
of a criminal organization for the purpose of enhancing the ability of
the criminal organization to facilitate or commit an indictable
offence under a federal statute. Maximum penalty: five years in prison

- - 467.12: committing an indictable offence under a federal statute for
the benefit of, at the direction of, or in association with, a
criminal organization. Maximum penalty: 14 years in prison. (This
sub-section survived an Ontario court challenge.)

- - 467.13: being one of the persons who constitute a criminal
organization, and instructing 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. Maximum penalty: life in
prison. (This sub-section has been quashed in B.C.)

Source - Dec. 8 ruling of B.C. Supreme Court Justice Heather Holmes