WHO NEEDS CONVICTIONS?

Ontario Attorney-General Jim Flaherty, fresh from a "summit" on
organized crime he organized in Toronto, is talking about legislation
to help the government confiscate the profits of such crime, broadly
modeled on the American "Racketeer Influenced and Corruption
Organizations," or RICO law. He should abandon the idea as inimical to
our liberties and to the legal traditions that protect them.

The United States Congress passed RICO in 1970 to give law
enforcement agencies more power to go after the Mafia. It gave police
sweeping authority to seize money and goods believed to be the
proceeds of gambling, drug, protection and other rackets, and it let
them do so regardless of whether the people involved were convicted of
anything. This not only violated the presumption of innocence in
principle, but also in practice, as it frequently deprived the accused
of the resources needed to hire lawyers to fight either the
confiscation or the criminal charges. Under pressure from the courts,
victims of the legislation and investigative journalists, Congress
recently scaled RICO back. So why does Mr. Flaherty want RICO-esque
laws for Ontario?

Well, he wants to be able to use civil courts to take away the
proceeds of things like telemarketing fraud, stock market fraud,
insurance scams and credit card fraud. He freely acknowledges that the
point is to take advantage of the looser standards of proof in civil
courts, where you need only prove your case beyond a balance of
probabilities -- that your version of events is probably true --
rather than the beyond a "reasonable doubt" standard of criminal
courts. As federal law already permits such seizures after a criminal
conviction, the whole point seems to be to punish people you can't
convict.

Absent such a law, to be sure, some big-time mobsters will be able to
hide their ill-gotten fortunes while the state is tied up by due
process. But making a mockery of our legal safeguards is a cure far
worse than the disease. That doesn't seem to to bother Mr. Flaherty,
who is also considering making it a crime to be a member of a
"criminal organization." Since it's already a crime to be an accessory
to an offence, this looks like a direct attack on our Charter right to
associate freely.

Also, under RICO in the U.S., the definition of a criminal
organization has been notoriously nebulous. How would an Ontario
statute avoid the same problem? The idea is to go after biker gangs
and mobsters. But in the U.S., RICO lawsuits have been launched
against sports-card companies (they were accused of operating an
illegal lottery by putting special cards and prizes in some packs of
cards but not others) and pro-life organizations (they were accused of
damaging the business of abortion clinics by making people feel too
threatened to use them, in a sort of quasi-protection extortion
racket). A law that's bad in principle will be bad in practice.

A lesser flaw, but not we hope beneath Mr. Flaherty's attention, is
the failure to distinguish between consensual and non-consensual
offences. Scams like telemarketing (and Internet) fraud have victims,
so if anyone is entitled to restitution from the people behind these
crimes, it's the victims they preyed on, not the government. Mr.
Flaherty apparently plans for the government to pocket the loot,
though. As to the proceeds of consensual crimes like prostitution,
drugs, and gambling, these do not have victims in the classic sense.
There's no one to return the money to. The government could even get
itself into a conflict of interest if it develops any reliance on
money taken from operations it purports to want to shut down.

But the real problem is with the basic philosophy of punishing
citizens without all the fuss and bother of convicting them. This
proposal might appeal to Louis XIV or Genghis Khan, but it shows
contempt for the ancient restrictions on the state's ability to hurt
people it happens not to like. By making such a proposal, Mr. Flaherty
raises serious questions about his fitness to be Ontario's senior
legal authority.