'EVEN THE DEVIL MUST HAVE THE BENEFIT OF LAW'

The argument in favour of a federal statutory list of criminal
organizations is simple, and awfully hard to crack. No sensible
person would deny that a group like the Hells Angels are a criminal
group. Even they revel in their status as sworn enemies of polite
society -- as outlaws. So why not, essentially, take them at their
word and outlaw them?

That's more or less what Quebec prosecutor Randall Richmond suggested
to the Commons justice committee a while back, and the committee has
agreed to study it. Mr. Richmond proposed that the Angels could,
initially, be the sole group on the list. Right now, he complained,
the criminal nature of the notorious motorcycle club has to be
demonstrated in court, de novo, with every new trial; this is
time-consuming work which involves establishing something that no one
denies in earnest. Richmond's idea is for Parliament to formally
declare the Angels -- and perhaps rival biker gang, the Bandidos -- a
criminal organization; courts could thenceforth take this status as a
given, as they now do with terror groups on Public Safety Canada's
list of banned entities.

It is an attractive idea, but the classical liberal's inevitable
misgivings about it will not be hard to imagine. Any procedural
change which is designed to make life easier for prosecutors, instead
of leading to fairer trial outcomes under an explicitly adversarial
system of criminal law, is rightly regarded with some suspicion.
Having a "list" consisting of one or two especially loathed groups
smacks of the old, abandoned Westminsterian practice of bills of
attainder -- i. e., parliamentary statutes which simply declare a
person or persons guilty of some crime, taking the judicial branch
out of the equation completely. At most, if some avenue of appeal
were included in the law, the Hells Angels would get one
winner-take-all trial of their essentially "criminal" nature; should
they lose, they would be permanently "criminal" until someone got
around to revising their status.

This is a little troubling. (As Robert Bolt made Thomas More say in A
Man For All Seasons, even the devil must have the benefit of law.)
But more troubling is the inevitable expansion of the "criminal
organizations" list. Public Safety Canada says it has already
identified 900 active "organized crime groups" in the country. Many
of them probably do not provide the clear-cut moral outlines that
proscribing the Hells Angels would. The "criminal markets" identified
by the PSC include innately criminal and universally despised
activities such as fraud and car theft, but the ministry also spends
an awful lot of time and energy struggling against crimes that are
creations of policy.

Clearly it would not hesitate to include any trafficking in illicit
drugs, even largely harmless and socially accepted ones, as
"organized crime" for the purposes of prosecution. Any group that
engaged in tobacco smuggling or "intellectual property rights crime"
could end up attainted. Which is presumably why Mr. Richmond is
reluctant to add anybody but the Hells Angels to the list --he is
tacitly conceding that the exercise is likely to become awkward and
possibly abusive very quickly.

It worth noting that the terror-organizations list has not been
successfully challenged in court, though that doesn't seem to stop
people with Tamil Tiger banners from blocking highway arteries and
downtown streets, either. But we should not assume that the "list"
approach to organized crime is justified just because the terror list
might be. Terrorism, as defined in the Criminal Code, means a
challenge to functioning social order or the legitimacy of the state.
Organized crime is a less severe category of offence, except insofar
as all crime naturally threatens these things.

One way or another, an official federal list of organized crime
groups would need plenty of procedural safeguards, and the justice
committee should take the task of framing them seriously. The process
of adding a group to the list, and the evidence used to make that
determination -- all of it --must be public and transparent. There
must be a means of appeal at some stage of the process of adding to
the list, ideally a judicial one. Periodic review of the list must be
a requirement. And there must be firm, objective criteria for
inclusion, as there are for the terror-groups list. Otherwise,
prosecutors will just have to tough it out for the sake of due process.