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Dominic Lamb: Anti-gang legislation brings guilt by association to the fore

(2012-09-21)

 

Anti-gang legislation brings guilt by association to the fore

By Dominic Lamb, Ottawa Citizen

OTTAWA — So you thought the concept of “guilt by association” has no place in Canadian criminal law? Think again.

Young people tend to hang out in groups. We see kids hanging out together, having fun, or possibly getting up to no good. But when it comes to young men, we tend to label groups of them — particularly those from immigrant backgrounds, often those deeply affected by poverty and lack of opportunity — as something possibly a bit more sinister.

And so we have this recurring fixation with “street gangs,” or “youth gangs.” In Ottawa we have seen the Ritchie-Ramsey Bloods, The Ledbury-Banff Crips, The Juggalos, The Ace Crew. The list goes on.

You may not have heard of The Forty Thieves. They were the first officially labelled “street gang” in New York City. They came to light out of the Irish slums of Manhattan shortly after the American Revolution. They were young men, immigrants or the sons of immigrants, who banded together to rebel against their low social status but quickly turned to crime to make money.

Since that time, the perceived phenomenon of the gang, and the associated fear and menace of young men acting in concert in furtherance of criminal enterprise, has continued to provide compelling newspaper copy, public anxiety and, sometimes, very real crime.

Most of us, if asked to define a “criminal organization,” would think of the Mafia or the Hells Angels. The motive for the criminal organization provisions being added to the Criminal Code was a direct response to the proliferation of such groups, particularly in Quebec. Concerns about organized crime and its influence and infiltration into Canadian society are back in the spotlight due to the Charbonneau Commission into corruption in the Quebec construction industry.

Our Supreme Court has recently weighed in on what constitutes a criminal organization and has concluded that, rather than look for a checklist of attributes, the courts should adopt a flexible approach. It is preferable to focus on the goal of the criminal organization legislation itself, which is to identify and undermine groups that pose an elevated threat to society.

In our Criminal Code, a criminal organization is defined as a group of three or more people that has as one of its main purposes the facilitation or commission of serious offences that would likely result in material benefit by the group or any of its individuals.

A serious offence means any offence that carries a maximum punishment of five years or more, including such offences as mischief and theft.

Simply participating in the activities of a criminal organization is a crime and carries penalties of up to five years in prison. Committing an offence for a criminal organization carries a maximum prison term of 14 years, and instructing the commission of such an offence carries a maximum term of life.

Anyone convicted of any of these offences must serve their sentences consecutively to any other sentence and must serve at least half of their sentence before being considered for parole (normally, one becomes eligible for parole after one third of a sentence).

Street gangs, as they are defined by policing agencies, fit squarely into the Criminal Code definition of a criminal organization using a test that looks to six criteria to show gang membership that could allow for conviction.

The six point criteria consists of the following:

1. Reliable information that a person is “a gang member”.

2. Police officer observes a person associating with a gang member.

3. Person acknowledges gang membership.

4. Person is involved directly or indirectly in “a gang motivated” crime.

5. Court finds the person to be a gang member.

6. Person found to be displaying common or symbolic identification or paraphernalia (street-name, tattoos, colours).

To be classified as a gang member, you have to meet criterion four and two of the other five criteria.

These criteria are vague, and upon examination, it could be quite easy to be identified as a gang member. Listen to the wrong music, sport the wrong tattoos, have acquaintances with undesirable connections and be “indirectly involved” in a gang motivated crime and you’re in a gang.

The Criminal Code provisions have also introduced factors that our courts may consider in determining whether someone has participated or contributed to any activity of a criminal organization.

Using a name, word or symbol associated with the organization, frequently associating with any of the people that constitute the organization, receiving any benefit from the organization, or repeatedly engaging in activities at the instruction of any person who is part of a criminal organization, can all be used as evidence of participating in a criminal organization.

Much of the criminal organization legislation in the Criminal Code could be described, to some extent, as guilt by association. Those who participate in, commit crimes in, or instruct others to commit crimes, in groups of three or more are subject to much greater punishment than those who act alone. We have traditionally punished the wrongdoer for his or her individual actions, not for the company they keep.

Our current and recurring fascination with youth gangs ensures that these provisions will undoubtedly see more use in the near future in our criminal courts. It gives an entirely new perspective to the old saying that if you fly with the crows, you get shot with the crows.

Dominic Lamb is a criminal defence lawyer with Edleson Clifford D’Angelo LLP. He can be reached at dominic@edelsonlaw.ca or 613-237-2290. Follow Dominic on twitter.com/dominiclamb

 

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