LEGISLATION FLIES IN FACE OF CHARTER: FORMER AG

PROPOSED Manitoba legislation to seize the property of gang members is
neither constitutional nor enforceable, a former NDP Attorney General
says.

Roland Penner, now a University of Manitoba law professor and expert
in constitutional law, said Attorney General Gord Mackintosh's bill to
allow the province to seize property of gang members whether or not
they have been convicted of a crime flies in the face of the Canadian
Charter of Rights.

"I think there is a lot of difficulties with the bill as reported,"
Penner said, although he pointed out he wants to study the bill in
more detail.

He said the Canadian justice system is rooted in the ideal of being
innocent until proven guilty, which isn't reflected in this bill. And
he said on top of that, the guilt by association present in this law
is offensive.

"Guilt by association is something we try to avoid at all costs in our
system. In my view it offends the rule of law."

He said it is "virtually impossible" to enforce the law without
violating the charter. "How are you going to prove the person whose
property you now want to take is a member of a gang? I think it's
virtually impossible to define a gang in terms that doesn't offend the
freedom of association guarded by the charter," Penner said.

Penner said the bill also might run into a challenge over
jurisdiction, saying it is suspiciously close to criminal law, which
only Ottawa can pass.

Mackintosh said the bill does not trample on anyone's charter
rights.

Confident

"There's been a full analysis of this legislation by departmental
officials and we're confident that the bill will withstand any charter
challenge."

He also said the province does have jurisdiction here. "This does not
focus on criminals but rather on criminal property and that is the key
difference. It's been recognized provinces have the ability to deal
with property issues and crime prevention."

The government contends that because this law is civil, not criminal,
the charter rights that exist in the criminal or penal context, such
innocent until proven guilty, are not applicable.

As well, a government spokesman said the presumption of being a gang
member applies only to a member of a group that organized for the
purpose of committing a serious offence.

The charter does not include a right to engage in organized crime, the
spokesman said.

Tory Justice Critic Gerald Hawranik was critical of Mackintosh's bill,
saying it wouldn't stand up to a charter challenge. But Hawranik
himself introduced a bill Wednesday that is, according Penner, even
less likely to meet charter requirements.

Hawranik's private members bill would deny legal aid to gang members
automatically, without even a court hearing to prove their gang
association. The onus is on the supposed gang member to prove he is
not a gang member.