Lawyer may challenge use of reputed gang member list

A Brandon defence lawyer is thinking of mounting a constitutional challenge to the local Crown attorneys’ latest technique aimed at curbing gang crime and rehabilitating offenders.

Jonathon Richert describes no-contact orders based on lists of reputed gang members as a “slippery slope” that may violate the right to free assembly.

“We ought to be cautious about making these broad, sweeping no-contact or communication orders,” Richert said during a recent sentencing in Brandon court.

“On principle alone I would say it would be inappropriate.”

His 16-year-old client had pleaded guilty to possession of a weapon for a dangerous purpose after being found at the courthouse with a pool ball in a cloth — a weapon known as an “eight ball.”

He also pleaded guilty to a number of counts related to failing to abide by various orders.

Crown attorney Jim Ross said that the teen told police he had the weapon to protect himself from members of the Manitoba Warriors street gang.

On another occasion the youth told authorities that he was a Bloodz street gang member, Ross said.

Richert, however, told court that his client maintained the weapon was protection from family members or friends following a dispute.

Ross asked Judge Shauna Hewitt-Michta to use a probation order to ban the youth from contact with Bloodz members or associates, and he provided six names.

Brandon Crown attorneys have been providing lists of gang members or associates to the court lately, when dealing with offenders or accused who are believed to be gang involved.

The names are based on intelligence gathering and gang membership criteria set out by the Criminal Intelligence Service of Canada — or those on the list may have admitted to being gang members.

Crown attorneys have asked for offenders and accused to be banned from contact with people on the lists as part of bail conditions or probation orders.

The idea is to limit gang activity and promote rehabilitation by separating the offender or accused from bad influences.

Until recently, Brandon judges have used the lists to fashion no-contact orders with little or no opposition from defence.

But Richert, who seemed surprised by Ross’ request, put up a fight.

He said his client indicated the crime wasn’t gang-related and denied ever identifying himself as a gang member. Richert said there was no concrete evidence that his client was a gang member or continues to be.

Even identifying oneself as a gang member doesn’t necessarily mean that it’s so, Richert said.

The teen only knew two of the people on the six-name list, Richert added, although those two people did seem to have gang involvement. The Crown had appeared to pick the names “out of the air,” he said.

Richert questioned how his client would know the four other individuals if he met them on the street.

Ross countered that he wasn’t asking the court to find that the teen was a gang member. But the youth had reportedly claimed to be one and that he needed a weapon to protect himself from members of another gang, so the order had a basis in law.

“I also say, what’s the harm?” Ross said.

While Hewitt-Michta said she didn’t necessarily agree with Ross — she said the Crown needs to justify such an order.

But she ruled that in this case, Ross had justified his request. Citing the need for rehabilitation, she made the no-contact order part of a probationary sentence she imposed for the youth’s offences.

“It’s in the public interest to make an order that keeps (the youth) separate from these people,” Hewitt-Michta said.

However, Richert now says he may now pursue an appeal of the no-contact order, arguing that it may breach the Charter of Rights and Freedoms.

He said he didn’t want to argue the case in the media, but pointed to Section 2 of the Charter of Rights and Freedoms, which states everyone has the right to peaceful assembly and freedom of association.

And he pointed to Section 7 which states: “Everyone has the right to life, liberty and security ... and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Richert agreed that there’s a chance that an offender may unwittingly breach his bail condition and be arrested if he has contact with a gang member whom he didn’t realize was on the list.

Any appeal would be heard in Court of Queen’s Bench, likely in Brandon.

On the other hand, Section 732.1 of the Criminal Code covers probation order conditions.

Under that section, the court can order an offender to “comply with any other reasonable conditions as the court considers desirable ... for protecting society and for facilitating the offenders successful reintegration into the community.”

If an accused disagrees with any facts presented by the Crown during sentencing — including any possible gang membership — the Crown can call witnesses and present evidence at a sentencing hearing.

That wasn’t done in this case, as Richert suggested to the court that it wasn’t necessary.

If Richert launches an appeal and it’s successful, it could limit or narrow the kind of any future orders made.

» ihitchen@brandonsun.com

Republished from the Brandon Sun print edition October 4, 2012