Tuesday, December 13, 2005

The Globe and Mail: Crown to appeal B.C. ‘gangs' ruling

The Crown will appeal B.C. ‘gangs' ruling.

Here is a case where I do not side with the crown. I do not share a particular fondness to gangs. I would like to see the elimination of criminal gangs altogether. Yet there are problems with the way the government is going about stopping them. And let me argue, I think their solutions are a bit myopic.

1. The freedom of association, the ugly swan in comparison with the other freedoms (ie. of religion, speech, etc.), is trampled by the government's definition of "criminal organization." If people are allowed to freely assemble, that includes the right to assembling under an organization with loose or unloose memberships.

2. A gang is not criminal or un-criminal, just like a corporation is not criminal or uncriminal. Any body of people that come together under an organization is just that - a body. The corporation - or gang - itself is merely a legal fiction: an entity that is ascribed status. Following the government's logic of criminal organizations as an organization which habitually breaks the law, it puts the government in quite a tight spot.

After all, the government is perhaps the premiere prominent law breaker. Adscam notwithstanding, the government frequently coerces people to obey laws which are not actually legal - courts frequently strike down laws which go contrary to the law. Ought we call the legislature or Parliament "criminal" when it does that? Ought we prosecute legislators for passing laws which get struck down?

No. We should not. I am arguing from the position that the government's logic leads to an absurd result. Belonging to a criminal organization cannot be considered a crime any more than being a party of the Liberal party or Nazi party ought to be considered a crime. People individually break the law. People individually need to be accountable to the law. (Yes, there are laws governing corporations. They are not above the law; corporations get punished collectively for their sins).

3. The rule of law demands that s. 467.13 of the criminal code be struck down. It is of no force or effect precisely because it violates the rule of law. The rule of law demands guidance. Vagueness cannot guide. Therefore, if "criminal organizations" is a vague term, it ought to not be enforcable since it cannot guide people. For instance, ought people belonging to the Liberal party, an arguably criminal group, be punished? No. Because the section of the Code is so vague that its application may lead to wildly broad and arbitrary results, which violate the rule of law. No reasonable person can be expected to know that joining the Liberal party might actually be criminal. The section itself lends no credence to this interpretation. Yet, it could be construed that way under its vague definition. If criminal organizations is unduly vague, and I think it is, then the judge had no choice but to strike the section down.

The most positive counter-argument to this, I suppose, is for the Crown to rely on the previous jurisprudence of the court, which has stated that a section of law is vague when no one can debate what it means. If there is debate on what the law means, then it is not vague. Let me just say that I think this jurisprudence is terrible, because it makes no sense. Yet, if the Crown is to have a hope in convincing the Supreme Court, they might have to argue that the section is quite debatable.

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