'CRIMINAL ORGANIZATION' CHARGE DISMISSED, BUT JUDGE SAYS MEN STILL
MUST FACE COURT

VANCOUVER -- A British Columbia Supreme Court judge formally
dismissed a "criminal organization" charge yesterday against a man
after ruling last month that a key section of the anti-gang
provisions in the Criminal Code section is unconstitutional.

But Madam Justice Heather Holmes rejected a defence motion to quash
all the charges against two men in the case and ruled that the
defendants, who cannot be named because of a publication ban, will
still stand trial on drug-related charges.

The federal Justice Department has 30 days to file an appeal of the
ruling that the anti-gang section is unconstitutional. A Justice
Department spokesman in Vancouver said yesterday that Ottawa will appeal.

The section that was ruled unconstitutional made it an offence for
anyone who is a member of a "criminal organization" to "knowingly
instruct" another person to commit an offence for the benefit of the
organization.

Conviction for the offence carried a maximum penalty of life in
prison, and it was not necessary that the other person actually
carried out the crime for the Crown to get a conviction.

As well, a prosecutor was not required to prove that a specific
person was instructed to commit an offence or that the defendant knew
everyone else in the criminal organization.

In her ruling last month, Judge Holmes observed that the provisions
were "almost boundless."

She said the section could include "members of an almost limitless
variety of groups.

"This reaches far beyond the scope of the public policy objectives
relating to organized crime."

Police criticized the decision to strike down the section.

A senior RCMP official told The Globe and Mail last month that, as a
result, police could be restricted in their efforts to obtain
wiretaps while carrying out organized-crime investigations.

That interpretation was described as "unfair" and "inaccurate" by
defence lawyer Matthew Nathanson, who successfully argued the court
challenge before Judge Holmes.

The effect of the decision was "to strike out a very broad section,
which was vague and had the potential to impact the rights of all
sorts of innocent people.

"The thrust of the ruling was not to protect people engaged in
organized crime, but to protect the rights of all citizens.

"It is to ensure that the means chosen by Parliament to address
organized crime complies with the Constitution and does not go too
far," Mr. Nathanson said.