WAIT FOR THE VERDICT

Manitoba wants to get tough on criminal gangs. A bill introduced last week
would permit the confiscation of the property of members of a "criminal
organization" even if they had not been convicted of an offence, or charged
with one. Belonging to the organization -- defined by the Criminal Code as
a group of three or more people who have as a main purpose the facilitation
of a serious offence that would enrich at least one of them -- would be
justification enough.

This is smash-and-grab legislation, a bill that would roll over such
constitutional rights as freedom of association and the niceties of due
process. Attorney-General Gordon Mackintosh, who has previously moved to
shut down legitimate businesses owned by gang members, says he believes the
legislation can withstand a challenge under the Charter of Rights.
Opposition justice critic Gerald Hawranik is closer to the mark: "I think
that it would probably survive only until the first defence lawyer wants to
take a stab at it."

The proposed Criminal Property Forfeiture Act would allow a police chief,
if "satisfied" that property had been obtained through the breaking of any
provincial or federal law, to ask a judge to issue an order forfeiting the
property to the government. The court, if "satisfied that there are
reasonable grounds" to believe the property was obtained as a result of
unlawful activity, would have to issue the order. The judge would have to
be satisfied only "on the balance of probabilities," not the more demanding
standard of "beyond a reasonable doubt." No notice would have to be given
for 10 days (and possibly longer) to the person whose property was declared
forfeit. Banks and insurers would have first dibs on any forfeited
property. Failing that, the government would sell it and spend the money.

To prevent the forfeiture, the owner would have to prove the absence of
unlawful activity -- a reverse onus requiring proof of a negative. And if
the owner were a member of a "criminal organization," the law would
consider that to be proof that the property was proceeds of unlawful
activity, "in the absence of evidence to the contrary" -- again, a reverse
onus.

The bill attempts to piggyback on the federal Criminal Code, since
Parliament is the only body that can set criminal law. However, Mr.
Mackintosh takes shortcuts that Section 462 of the Criminal Code, which
deals with the proceeds of crime, would consider unacceptable.

Under Section 462, most property is forfeit to the state only if the owner
has been found guilty of an offence in a court of law. If the Crown thinks
the property was the proceeds of some other crime than the one the owner
has been convicted of, it must persuade the judge of that beyond a
reasonable doubt. The only way the judge can declare property forfeit
without a trial is if the accused has died or absconded.

The judge does have the right under the Criminal Code to order property
seized before a trial, and to do so without notifying the owner, to prevent
"the disappearance, dissipation or reduction in value of the property," but
the owner must receive a report within seven days and the property must be
protected until trial. (Even if it is deemed to have "little or no value,"
it can't be destroyed without a judicial destruction order. The Manitoba
bill would require no such order.)

Mr. Mackintosh's bill would effectively make it a crime to be a member of a
criminal organization. The Criminal Code, conscious of Charter protections,
stops well short of that: It outlaws membership only if the person
knowingly contributes to an activity of the group to help the group commit
an indictable offence. Manitoba seeks to expand the criminal law, which is
an intrusion into federal jurisdiction.

Criminal gang activity is a serious problem. That's why the Criminal Code
has so many provisions to deal with it -- on participation,
money-laundering, proceeds of crime. But Manitoba goes too far in
disregarding important provisions of the Constitution. Mr. Mackintosh
should revise his bill before a judge does it for him.