Pubdate: Tue, 19 Sep 2000
Source: Globe and Mail (Canada)
Copyright: 2000, The Globe and Mail Company
Contact:  http://www.globeandmail.ca/
Forum: http://forums.theglobeandmail.com/
Author: Karen Selick, is a lawyer based in Belleville, Ont.,
who writes a column for Canadian Lawyer magazine.

BAD LAWS BEGET WORSE

It's already illegal to shoot people in the back, as journalist Michel
Auger's unknown assailant did last week. Laws against assault and attempted
murder have been around since the beginning of Canada's history.

Presumably, police in Quebec will spare no effort in tracking down the
perpetrator. If they fail, there may be many possible reasons: insufficient
police resources, fear of retribution among witnesses, corruption within the
law-enforcement system or even just plain bungling. But the lack of
necessary laws to prosecute this terrible deed will not be among them.

What purpose would be served by complying with the recent clamour for new
laws outlawing membership in biker gangs?

Who would the new laws catch?

People already subject to the full penalty of existing laws against murder
and assault?

Obviously, only people who didn't commit these crimes.

The argument being made by Quebec politicians and police, boiled down to its
simplest terms, amounts to this: "We have, to date, been utterly ineffectual
at preventing and prosecuting difficult crimes such as attempted murder, so
please create some easier crimes for us to solve. Then we promise to do a
better job."

Absent from this promise is any explanation of how squandering police
resources chasing small-fry criminal wannabes who had never hurt anyone
would lead to a greater success rate in arresting established brutal
killers.

Would the new law deter people from joining criminal gangs?

It seems unlikely. Any penalty the Criminal Code might impose would seem a
mere slap on the wrist compared to the dangers gang members face daily.
Thwart the government and they put you in jail, where you can carry on with
your drug dealing and your various other rackets almost unabated. But thwart
an opposing gang, and it's the death penalty. If the possibility of being
blown up in your clubhouse or shot on the street isn't enough to scare you
away from a life of crime, the threat of jail isn't likely to do it, either.

What is the philosophical justification for outlawing gang membership? Is it
that gang members have probably committed crimes that haven't been detected
yet, so we might as well lock them up on the mere probabilities? Or is it
that they may commit crimes in the future, so we might as well nip them in
the bud?

Either way, the proposal violates not only the right to freedom of
association, but also two of the cornerstones of our criminal justice
system: the need for proof beyond a reasonable doubt, and the presumption of
innocence.

For what noble purpose are we considering throwing away some of the most
important protections a free people can adopt against tyranny? For this: to
punish those who are merely taking advantage of the fabulous opportunities
for riches that we've already handed them through earlier ill-considered
legislation.

Look at the list of activities in which criminal gangs engage: drugs,
gambling, smuggling, prostitution. Every one of these has certain elements
in common. In each case, the participants in the transactions are willing,
voluntary players, exchanging money for goods and services, or vice versa.
They don't consider themselves to be "victims" of their trading partners. It
is only outsiders to the transaction who try to transform their vices into
crimes.

Just as Prohibition gave organized crime its foot in the door, the war on
drugs has probably been the single most important factor vaulting ruthless,
depraved barbarians into the ranks of the rich. The risks and penalties of
the drug trade keep decent people out. The resulting near-monopoly
conditions raise prices and make profits plentiful.

Victimless crime laws have proved, time and again, to be bad laws. Instead
of alleviating the social problems they are supposed to address, they
invariably create a host of additional problems. They also divert police
resources away from solving genuine crimes.

Now they threaten to beget new laws, worse laws, that would jeopardize
traditional civil rights and set a precedent for future encroachments on our
liberty. Parliament risks being transformed from an honourable institution
protecting citizens' rights and freedoms into merely another rival gang
terrorizing the population.

Justice Minister Anne McLellan has said she will consider these proposals.

The minister's energy would be better spent figuring out how to undo the
legislative mistakes we have already made, rather than piling new mistakes
on top of old.
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