GO AHEAD, MAKE OUR DAY

Crime will pay if the Ontario government has its way, says lawyer KAREN SELICK

According to Ontario Solicitor-General David Tsubouchi, organized crime has
become "a threat to our way of life." Therefore, he and his colleagues in
the Ontario government have introduced Bill 155, the Remedies for Organized
Crime and Other Unlawful Activities Act. It had first reading in the
legislature on Dec. 5.

Unfortunately, like many legislative remedies to society's problems, this
one promises merely to cloak the symptoms, not cure the underlying disease.
What's worse, for anyone concerned about civil liberties, the remedy
threatens to endanger our way of life far more gravely than the original
problem.

The law will operate by allowing judges to transfer suspected proceeds of
crime (including drugs and cash), as well as property allegedly
instrumental in the commission of a crime (such as biker-gang clubhouses
and vehicles), to the government, whether or not anyone is ever charged
with or convicted of the alleged crime. This is called "civil asset
forfeiture." The theory is that it will remove the profit from crime --
that it will prove to criminals, literally, that crime doesn't pay.

A good theory, except for one small flaw. The profit won't really be gone,
it will merely be diverted.

This little fact has two important implications. First, it undermines the
likely efficacy of the proposal. Criminals can hardly be expected to give
up their lucrative occupations for new careers in taxi-driving when there's
still a raging demand for illegal products they've been providing.

Instead, they will simply carry on with business, turning some of their
energies to preventing the diversion of their profits.

Every new law enforcement measure in recent years has been met with
increasingly sophisticated evasive techniques on the part of organized
crime. Those who were formerly just drug dealers or smugglers now conduct
money-laundering schemes. Local criminal organizations have gone global.

Foreign jurisdictions such as the United States, where civil asset
forfeiture laws have been in place for decades, now find it necessary to
encourage neighbouring territories to adopt similar measures. Ontario, too,
will find that its proposed law may drive criminals' accumulated assets out
of the province to safer havens, but it won't stop the crimes from being
perpetrated here -- not as long as there's money to be made from it.

Organized crime still thrives in the United States despite harsh asset
forfeiture laws.

The second implication is that all that diverted money has to go somewhere.
Ontario proposes that it go into a special fund. From there, it will be
used to compensate victims of organized crime and to reimburse law
enforcement bodies (the Crown, municipal police departments, etc.) for
expenses incurred in processing cases under the asset forfeiture laws.
Anything left over will be used as the regulations prescribe -- in other
words, as the cabinet chooses.

Compensating victims -- a worthy goal, right? But just who are the victims
of organized crime? When Ontario Attorney-General James Flaherty talks
about this aspect of Bill 155, he likes to focus on car thefts and credit
card scams. However, studies indicate that the main source of revenue for
organized crime is still the drug trade, which is estimated to generate
revenues of $7-billion to $10-billion in Canada annually. Other major
activities include the smuggling of liquor, tobacco and people. Illegal
gambling is another, relatively minor, activity. The common thread among
all these activities is that the participants on both sides of the
transaction engage in the activity voluntarily. There are no unwilling
victims. Both sides are guilty of something the state has deemed a crime.

It seems unlikely that anyone will ever approach Ontario's victim fund
seeking compensation because the marijuana he bought turned out to be
oregano. Or because his dealer overcharged him for cocaine. Or because he
got cirrhosis of the liver drinking untaxed booze. Or because his snakehead
promised to get him to the States but abandoned him in Ontario.

So there should be plenty of money left over to beef up the budgets of the
Ontario Crown and police departments and to go into cabinet's slush fund.

What's wrong with this picture? It will mean that crime does pay -- for the
state and its minions. It will add a flock of respectable citizens --
judges, lawyers, police officers, bureaucrats -- to the burgeoning number
of people whose livelihood depends upon the continued existence of
organized crime.

Furthermore, it will distort the priorities that law enforcement officials
will attach to different types of crime. Why send officers out to
investigate some trivial purse-snatching, burglary or car theft when their
time could be spent sniffing out drug proceeds that will end up in police
department coffers? Then we can hire more officers and sniff out more drug
proceeds, and so on, and so on.

In fact, why attempt to keep drugs out of the country, or prevent them from
being sold? After all, police can't be everywhere at once. Since choices
have to be made, it will be tempting to let the drug trade proceed
unmolested, then just go after the cash.

This law threatens to transform policing into a self-contained,
self-perpetuating little industry, hooked on the proceeds of vice just like
any addict, putting occasional pressure on organized crime but never enough
to derail the gravy train. If it were anyone other than the government
doing this, we would call it a protection racket.

Once the state becomes the ultimate beneficiary of crime proceeds, how
different is it, really, from being simply the most powerful gang in a
battlefield of gangs? Power corrupts, and government employees are not
immune. Quebec's anti-gang police squad has already gotten into the spirit
of gang mentality, dubbing itself the Wolverines.

Despite these criticisms of Bill 155, there is still merit in the idea of
tackling organized crime by taking the profit out of its activities. This
doesn't mean diverting the profits, it means preventing profits from
arising in the first place.

The solution is to legalize drugs, gambling, prostitution, adult
pornography. Repeal the huge sin taxes on liquor and tobacco. Eliminate the
conditions of high risk that make it possible for the brutal and reckless
to monopolize the vice industries and drive up prices. When people can grow
their own marijuana or buy it from their next-door neighbour's patch, there
won't be any profit in it for organized crime. When prostitutes can
advertise in the Yellow Pages and turn to police if they get robbed or
assaulted, they won't need pimps.

We will never succeed in eliminating vice. Centuries of laws have already
proven that. Our efforts to control unsavoury, but voluntary, human
activities by criminalizing them have backfired every time. Each new law
has created problems of far greater magnitude. Isn't it time we stopped
repeating the same mistake?