Pubdate: Tue, 13 Dec 2005 Source: Vancouver Sun (CN BC) Copyright: 2005 The Vancouver Sun Contact: http://www.canada.com/vancouver/vancouversun/ Details: http://www.mapinc.org/media/477 Author: Lori Culbert, Vancouver Sun Bookmark: http://www.mapinc.org/find?188 (Outlaw Bikers) RULING HOBBLES ORGANIZED CRIME BATTLE, POLICE SAY A new section of the Criminal Code under which three B.C. Hells Angels were charged this year with being members of a criminal organization has been struck down by a B.C. Supreme Court judge. It was the first time Section 467.13 of the code -- which makes it illegal for a member of a criminal organization to instruct someone else to commit an offence -- has been challenged in any Canadian court since it became law in January 2002. B.C. Supreme Court Justice Heather Holmes concluded the law was too broad and vague, and therefore violated the constitution. Her ruling has dealt a major blow to police efforts to crack down on organized crime. "We're back to struggling with targeting organized crime. This was a very powerful tool to go after the heads of these groups, and we haven't got it anymore," said RCMP Chief Supt. Bob Paulson, a biker gang expert. "So, [the ruling] kind of takes away that strategy." Paulson, who was just promoted to director-general of major and organized crime intelligence at RCMP headquarters in Ottawa, added: "Law-enforcement across the country are turning their minds to this decision here to see what is going on." The Department of Justice says there were three cases before the courts in B.C. involving charges under 467.13, including one Holmes ruled on -- considered a test case in B.C. -- which has a publication ban protecting the name of the accused and details of the crime. The other cases involved Eric Brendan Montgomery, the alleged ringleader of the Dark Alley gang, who is accused of running a Lower Mainland crime ring; and Hells Angels members Ronaldo Lising, John Punko and Randall Potts, who were charged with 16 other gang members or associates in July. B.C. Attorney-General Wally Oppal said in an interview Monday those charges are quashed. "The Supreme Court judge has ruled that the section is of no force and effect. So, there wouldn't be any charges that would proceed," he said. But he noted other charges the accused in those three cases were facing would still stand. In the case of some of the Hells Angels, those include charges under a related, but less serious, section of the Criminal Code, 467.12, which makes it illegal to commit an offence in association with a criminal organization. That section survived a similar court challenge recently in Ontario. Oppal said the federal Department of Justice, which tried the case before Holmes because it involved alleged drug offences, will decide whether to appeal. The province may join any appeal, he added. Holmes' ruling does not strike down the law in other provinces, said Oppal, a former judge, but her decision could be "persuasive" to other judges considering similar cases across Canada. He did not think Holmes' ruling was disastrous for police, saying the federal government could eventually amend the legislation by "tightening up" the definition of a criminal organization. Police and prosecutors in B.C. laid an unprecedented number of charges between late 2004 and 2005, resulting in 45 Hells Angels or their associates being arrested. Many of those charges fell under Sections 476.12 and 476.13. Rick Ciarniello, a Vancouver Hells Angels member who speaks for the group, criticized the new law for trying to target a large number of people under unclear guidelines. The Hells Angels maintain they are not a criminal organization. Defence lawyer Matthew Nathanson, who successfully argued before Holmes, said wiping 476.13 "off the books" is an affirmation of people's rights because the legislation gave police unfair powers to gather information from wiretaps and other evidence while investigating organized crime. Holmes' ruling was made last Thursday, but could not be reported on until Monday after lawyers for media outlets, including The Vancouver Sun, argued a publication ban should be lifted. Holmes ruled the definition of a member of a criminal organization was too vague for an offence that carried a maximum penalty of life in prison. She added that "Parliament had a constitutional duty to make clear the legal basis" on which a person is deemed to be a member of a criminal organization, and that 467.13 failed to do that and therefore "violates . . . the Charter." [sidebar] MEMBERSHIP IN A CRIMINAL ORGANIZATION: Section 476 of the Criminal Code deals with criminal organization offences. The legislation broadens a previous organized crime law, and was brought into force Jan. 7, 2002. It contains three offences: - - Section 476 of the Criminal Code deals with criminal organization offences. The legislation broadens a previous organized crime law, and was brought into force Jan. 7, 2002. It contains three offences: - - 467.11: knowingly participating in or contributing to any activity of a criminal organization for the purpose of enhancing the ability of the criminal organization to facilitate or commit an indictable offence under a federal statute. Maximum penalty: five years in prison - - 467.12: committing an indictable offence under a federal statute for the benefit of, at the direction of, or in association with, a criminal organization. Maximum penalty: 14 years in prison. (This sub-section survived an Ontario court challenge.) - - 467.13: being one of the persons who constitute a criminal organization, and instructing a person to commit an offence under a federal statute for the benefit of, at the direction of, or in association with, a criminal organization. Maximum penalty: life in prison. (This sub-section has been quashed in B.C.) Source - Dec. 8 ruling of B.C. Supreme Court Justice Heather Holmes - --- MAP posted-by: Richard Lake