© 2000 Karen Selick
 Bad Laws Beget Worse
An edited version of this article first appeared in the September 19, 2000 issue of The Globe and Mail.  If you wish to reproduce this article, click here for copyright info.



 
 

 Bad Laws Beget Worse


Itís already illegal to shoot people in the back, as journalist Michel Augerís unknown assailants did last week.  Laws against assault and attempted murder have been around since the beginning of Canadaís history. 

Presumably, police in Quebec will spare no effort in tracking down the perpetrators and building a case against them.  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. However, 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 so-called biker gangs?  Whom would the new laws catch who isnít already subject to the full penalty of existing laws against murder and assault?  Obviously, only people who didnít 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 like 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 actually 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 itís the death penalty.  If the possibility of being blown up in your clubhouse or gunned down on the street isnít enough to scare you away from a life of crime, the threat of jail isnít likely to do it either.  

What is the philosophical justification for outlawing gang membership?  Is it that gang members have probably already committed crimes that just havenít been detected yet, so we might as well lock them up on the mere probabilities?  Or is it that they might 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 weíve already handed them through earlier ill-considered legislation.  

Look at the list of activities that criminal gangs engage in: 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 donít consider themselves to be "victims" of their trading partners.  It is only outsiders to the transaction who attempt 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 proven, 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 citizensí rights and freedoms into merely another rival gang terrorizing the population.  

Justice Minister Anne McLellan has said she will consider these proposals.  Her 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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January 18, 2001