Can 'disorganized ' law beat organized crime?
Fears that the critics might be right about C-95 grow as Canada's new crime bill gets off a shaky - and expensive - start in prosecution of a feared street gang

Even as the first test case goes to court, experts on organized crime are asking disturbing questions about Canada's new anti-gang legislation, FABIAN DAWSON reports.
Huddled in a hotel room in Toronto, the three lawyers were fighting the twin pressures of constructing a new law and hunger. One wanted to go with the number three. The others wanted the number seven. They settled for five and went out for pizza. So goes the story in police circles regarding the birth of Bill C-95, Canada's latest weapon in the fight against organized crime - a law that uses the number five to determine what constitutes a criminal gang. Five or more members, and it's a gang under the bill; fewer and it isn't.
Last week in Winnipeg, the new legislation underwent its first test as 32 alleged members of one of Manitoba's most feared aboriginal street gangs were brought to court under Bill C-95. After sheriff's officers spent half an hour shackling the accused into individual, half-Plexiglas booths; and 26 robed lawyers found spots at five long rows of tables, Justice Ruth Krindle took only about 10 minutes to adjourn the show for a week.
"The lawyers are going to meet to try to streamline certain issues in the hope of either cutting down on the number of the accused, possibly shortening the trial or both," said Dave Phillips, whose law firm represents half a dozen of the accused. It was as if the predictions of the critics, that this "flawed" piece of legislation is going to cost taxpayers millions and will not stand up to the test, were spot on. At last count, the bill for the Winnipeg test will be in excess of $10 million, including more than $3,5 million for a special courtroom behind the walls of a former feed warehouse.
The genesis of Bill C-95 can be tracked to the 1995 death of 11-year-old Daniel Desrochers, who was killed by flying debris when a booby-trapped Jeep blew up in Montreal. It was another incident in Quebec's bloody war between rival motorcycle clubs that has seen close to 90 people being shot or blown up, countless fires, bomb explosions and about 100 attempted murders. Outraged Montrealers demanded something be done after Daniel's battered body was laid to rest. Facing an election, the Liberal government in Ottawa obliged. Responding mainly to Quebec's demands, Bill C-95 made it through the House of Commons and the Senate faster than a speeding Harley-Davidson and was declared law in April of 1997.
Ignoring criticism by cops, criminologists, and civil libertarians, the law defined organized crime as any group, association or other body of five or more persons whose primary activity is the commission of indictable offences.
The targets must also have a record of criminal activities committed within five years. Police are given added tools to investigate these gangs, such as easier access to wiretaps and income tax returns. The bill also provides penalties of up to 14 years for being associated with a criminal organization. But even before it was tested, the principal targets of the law, outlaw motorcycle gang, have learned how to get around it. Last year, the Hells Angels opened a new chapter in Ontario and filled it with members who had no criminal records for five years. This prevents them from being considered an organized gang under Bill C-95.
"Nobody seems to show great optimism about Bill C-95," said Antonio Nicaso, an internationally recognized expert on organized crime. "The anti-gang legislation does not differentiate between a sophisticated Mafia crime group and a gang of squeegee kids since it can be applied to any group consisting of five or more persons, whether formally or informally organized," said Nicaso, who has written nine books on the Mafia.
"This is not the definition of the Mafia, the Triads, or the Colombian cartels - the definition of criminal organizations introduces by Bill C-95 has no connection with reality. "Then there is another unconvincing aspect: Why 'five or more persons'? What if they're three? Can't they be a criminal organization?"
Nicaso said the architects of the law demonstrated a woefully limited knowledge of organized crime and its characteristics. This is substantiated by the reluctance so far of justice department officials to use Bill C-95 to go after the Mafia or Chines triads. The new law was not used to go after the Caruana-Cuntrera organization, busted in Toronto last years after two-year investigation called Operation Omerta.
It would seem that Bill C-95 was the ideal piece of legislation to nail the principals of this Sicilian Mafia organization, said to be the most powerful in the world, with links in Italy, South Africa, Australia, the United States and Venezuela. Several people arrested in connection with project Omerta, including key figures, have been charged only with conspiracy to import drugs.
"These people have lawyers that would have torn Bill C-95 to shreds," said Nicaso.
RCMP officials say the new anti-gang legislation give police officers more tools to fight the growing threat of biker gangs and other organized-crime groups. "It covers offences other than the ones in the Criminal Code and allows for wiretaps for a longer period, up to one year," argues an article in an RCMP publication. In addition, under the law's sentencing provisions, jail terms are to be served consecutively. Currently, almost all sentences, including those for major crimes, are served concurrently. Allan Rock, the justice minister who introduced the bill, maintains the measures are severe enough to crack down on gangs like Quebec's Hells Angels and the Rock Machine - and wide enough to be used against teen gangs and terrorist organizations. The justice department had to wait two years before testing the law because they had to build a strong case, said an RCMP spokesman. Prosecutors seem to think they have found the "strong case" by going after the Winnipeg gang.
The Warriors numbers about 300 in Manitoba, with tentacles in Ontario, Saskatchewan and Alberta. The accused face drug, weapons, conspiracy and prostitution charges in addition to belonging to a criminal organization. The defence is challenging the federal anti-gang law and even the special courthouse on constitutional grounds. Those and other motions are expected to eat up the remainder of 1999. The real trial, after some of the lesser accused are let off on plea bargains, is expected to begin only next year. If the Crown gets past a stack of defence motions to change the venue or strike down the charges, there is the issue of selecting a jury.
Lawyers are saying they’re going to be unable to find a jury willing to sit through a case that’s expected to last from 12 to 18 months. What promises to be one of the largest, longest, most expensive and elaborate trials in Canadian history looks set to prove something that the lawyers in that Toronto hotel room didn’t envisage when they settled on five as their magic number: That Bill C-95 is disorganized legislation to combat organized crime.
The Province / Vancouver / Sept. 12, 1999.