Canada's anti-organized crime law.

[Muffin]

What do you think of Canada’s anti-organized crime law?

In Canada we have a relatively new (1997) law that was put in place to fight organized crime, and has been key to making inroads against the biker gangs that have been causing a great deal of serious trouble. (For examples, see the GQ thread “What is the current state of the Hell’s Angels?”
http://boards.straightdope.com/sdmb/showthread.php?t=266725&page=1&pp=50 )

Conventional laws have not been too effective due to the nature of organized crime, so our government has introduced a new law that pretty much makes it illegal to participate in a criminal organization. While that seems well enough on its face, the problem arises when you try to consider just what defines a criminal organization, and what defines participation.

Through our Constitution’s Charter of Rights we have a fair bit of protection from the state. How does the new law hold up against the Constitution’s Charter of Rights? Is the law a good thing or a bad thing? Is it legal or does it violate our constitutional rights, and if so how?

For reference, following are the sections of our Constitution’s Charter of Rights that may apply, and of course the new anti-organized crime law itself. For the complete Charter of rights and Criminal Code, go to http://lois.justice.gc.ca/en/

From the Canadian Constitution’s Charter of Rights and Freedoms

*Guarantee of Rights and Freedoms *

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
   *Fundamental Freedoms *

2. Everyone has the following fundamental freedoms:

a) freedom of conscience and religion;

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

c) freedom of peaceful assembly; and

d) freedom of association.

. . . .

*Legal Rights *

*Life, liberty and security of person *

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

. . . .

*Proceedings in criminal and penal matters *

11. Any person charged with an offence has the right . . . .
    d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
    . . . .
    g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

From the Criminal Code of Canada

*Definitions *

467.1 (1) The following definitions apply in this Act.

“criminal organization” « organisation criminelle »
“criminal organization” means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and

(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence.

“serious offence” « infraction grave »
“serious offence” means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
Facilitation

(2) For the purposes of this section and section 467.11, facilitation of an offence does not require knowledge of a particular offence the commission of which is facilitated, or that an offence actually be committed.
Commission of offence

(3) In this section and in sections 467.11 to 467.13, committing an offence means being a party to it or counselling any person to be a party to it.
Regulations

(4) The Governor in Council may make regulations prescribing offences that are included in the definition “serious offence” in subsection (1).
1997, c. 23, s. 11; 2001, c. 32, s. 27.
*Participation in activities of criminal organization *

467.11 (1) Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) the criminal organization actually facilitated or committed an indictable offence;

(b) the participation or contribution of the accused actually enhanced the ability of the criminal organization to facilitate or commit an indictable offence;

© the accused knew the specific nature of any indictable offence that may have been facilitated or committed by the criminal organization; or

(d) the accused knew the identity of any of the persons who constitute the criminal organization.
Factors

(3) In determining whether an accused participates in or contributes to any activity of a criminal organization, the Court may consider, among other factors, whether the accused

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization;

(b) frequently associates with any of the persons who constitute the criminal organization;

© receives any benefit from the criminal organization; or

(d) repeatedly engages in activities at the instruction of any of the persons who constitute the criminal organization.
2001, c. 32, s. 27.
*Commission of offence for criminal organization *

467.12 (1) Every person who commits an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, a criminal organization is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that the accused knew the identity of any of the persons who constitute the criminal organization.
2001, c. 32, s. 27.
*Instructing commission of offence for criminal organization *

467.13 (1) Every person who is one of the persons who constitute a criminal organization and who knowingly instructs, directly or indirectly, any person to commit an offence under this or any other Act of Parliament for the benefit of, at the direction of, or in association with, the criminal organization is guilty of an indictable offence and liable to imprisonment for life.
Prosecution

(2) In a prosecution for an offence under subsection (1), it is not necessary for the prosecutor to prove that

(a) an offence other than the offence under subsection (1) was actually committed;

(b) the accused instructed a particular person to commit an offence; or

© the accused knew the identity of all of the persons who constitute the criminal organization.
2001, c. 32, s. 27.