Winnipeg Free Press - PRINT EDITION

Rule by law the new norm

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The province's intent to list the Hells Angels as a criminal organization may come as welcome news to some in Manitoba. But the law is simply the latest, worrisome trampling of basic rights in provincial statute, dressed up as public protection.

Justice Minister Andrew Swan said Thursday the decision on whether to list the biker gang as a criminal organization will require the nod of an "independent external review panel." But that, too, is window dressing: Mr. Swan hand-picks the panel members who decide whether the Hells Angels meets the Criminal Code definition of a criminal organization. The panel sends its decision to Mr. Swan, who hands it to his cabinet colleagues for the rubber stamp.

Listing the Hells Angels as a criminal organization merely speeds up the civil proceedings under the Criminal Property Forfeiture Act, and other provincial statutes written to impose penalties, even in the absence of a crime.

Unlike a criminal court, which demands proof of a crime beyond reasonable doubt, the civil court permits seizing property when a judge decides, on the weaker test of the balance of probabilities, that an unlawful act was likely committed or planned.

Nothing need have actually happened, nor is it necessary that a defendant is criminally charged. Even if a criminal charge against the defendant has ended in an acquittal or was withdrawn, the province can proceed with its civil action for forfeiture.

So a gang member nabbed with a wad of cash can see his motorcycle seized because the Crown convinces a judge he was likely on his way to meet a dealer, who was caught with drugs. Equally legal, a soccer coach accused of sexually abusing a player can see his house seized, even if he is found not guilty in criminal court.

None of this would fly in the Criminal Code because the penalty for such crimes could include imprisonment. That is why guilt must be established by the tougher test -- "beyond reasonable doubt."

It is also why the section that deals with criminal organizations does not permit permanent listing of any organization, respecting the presumption of innocence and the charter right to association. The Crown is compelled to prove in each case the gang was involved in a criminal activity.

But seizing someone's house, vehicle or any other "instrument" said to be used in the unlawful activity, or possessions and money obtained by unlawful activity, is all fair game in this province.

Skirting the doctrines of fundamental justice and due process is not cricket in a liberal democratic society, but it works fine in Manitoba where Mr. Swan and his cabinet carve out law to pursue their agenda.

The NDP has proven itself adept at out-flanking the Conservatives on the law-and-order front, and this has come at a real cost to basic rights in Manitoba. An individual who lends a friend some money, for example, can find himself defending against the Crown's accusation in civil court he knew the money would be used to bankroll a drug deal, or trying to prove he could not possibly have known a drug deal was to be made in his house. On balance of probabilities, this association with a criminal organization can result in forfeiture of property.

That's because where the unlawful activity involves a criminal organization, the forfeiture act presumes the property of the defendants was obtained by crime, unless the defendant can prove otherwise.

This is called reverse onus, and it is a hammer rarely used in criminal law because it offends the fundamental right to be presumed innocent. Now, with the latest step to enshrine the presumption of criminality, Mr. Swan shows his administration chooses to govern by law, rather than according to the rule of law.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien and Paul Samyn.

Republished from the Winnipeg Free Press print edition May 21, 2013 A12

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