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Exclusive to this site, April 6, 1997
What I wish to challenge in Québec Justice Minister Paul Bégin's plea for anti-gang legislation ("Why we need to outlaw motorcycle gangs,"Globe and Mail, April 1, 1997) is not primarily its benevolent naïveté.
Let's forget about the high likelihood that, in five, ten or twenty years, such legislation will be used against targets now undreamed of. Let's close our eyes to the American experience with the "Racketeering and Corrupt Organization Act" (RICO): since its adoption in the 70's, this supposedly anti-gang law has hit individuals suspected of tax evasion, distribution of pornography, and insider trading, among other "crimes".
Assume that our nice governments will never use a Canadian anti-gang law against dissenters and individuals guilty of belonging to unpopular groups. Rest assured that the federal government will never criminalize membership in a separatist group, and that the Québec government will never view advocates of partition as members of a criminal gang.
Forget how highjacking of well-meaning laws has become distressingly common. Who would have thought that customs laws would be used against homosexual bookstores? That databases of drivers' licenses would be put at the disposal of the Québec Department of Revenue? That Social Insurance numbers would be required to open a bank account? That anybody would think of denying passports to citizens who have not paid alimony? And so forth.
Close your eyes to this new excuse for destroying our hard-won rights: right of association, protection against search and seizure, benefit of the doubt for the accused ... Forget that France's anti-gang law does not prevent terrorists from blowing up people in pieces. Never mind the fact that murder is already illegal in Canada, and neglect the paradox of a government claiming it does not have enough power to enforce this prohibition while it takes in its coffers half of what the people produce and earn.
Instead, just consider the nine criteria with which Her Majesty's Honorable Minister defines an outlaw gang. Start with the first one: "They derive significant income from different types of criminal activity: drug trafficking, prostitution, money laundering, smuggling, etc." One problem is that these criminal markets exist only because government has criminalized them. If consuming water melon or raising children without a permit were made crimes, should we say that deriving income from these activities define a criminal gang?
But this is still not my main point, which is that the criteria proposed by the Minister apply nicely to the State, i.e., to the organization he belongs to.
Take the second one: "Many of these people form organizations to increase control over a given territory ..." Isn't that a pure Weberian definition of the State? In all fairness, the honorable Minister does add: "... and criminal activity in that territory." But isn't a government overstepping his bounds and infringing on the rights of the people as criminal as selling pot, trading in sex, or smuggling tobacco?
The third criterion is enlightening: "These organizations are known; they show their colors in public; some have international connections. They survive and expand by force and violence, practicing intimidation and using arms and explosives." One is polluted by symbols of the Canadian and the Québec State much, much more often than by the Hell's Angels' crest. Moreover, what is the second sentence of this criterion, if not a short summary of political history?
The Honorable (and armed) Minister's fourth criterion expands on territorial control: "The warring among these groups for exclusive control over the various types of criminal activity leads to mutual reprisals that endanger the lives and safety of innocent people." Tens of million of people have died in State wars or State persecutions during this century. And, thinking about it, doesn't this criterion remind you of something about what separatists and federalists quarrel about?
Now, the fifth criterion for criminalizing an association: "These organizations have branches throughout Quebec and Canada. Legislation in a single province is not sufficient; if we succeed in controlling their operations in one area, they will move their illegal activities elsewhere." Isn't this a neat description of the main problem in Canada? Governments have branches everywhere, and whatever charter of right you proclaim, you cannot control them. Right now, both the feds and the separatists are conspiring to make a crime out of belonging to associations they define as outlaw!
In order to make sense of the sixth criterion, I suggest replacing "law-enforcement agencies" by "peaceful citizens." It then becomes: "It is very difficult for peaceful citizens to infiltrate these organizations, because in order to be a member one must commit criminal acts such as murder." Granted, you do not have to commit murder to be a member of the Canadian Liberal Party or the Parti Québécois: you only have to be willing to regulate everything by force and intimidation, and steal bread from your fellow citizens' tables.
As for the seventh criterion, I respectfully submit that it describes in vivid terms the impunity enjoyed by our ruling politicians: "These organizations have a hierarchical structure. The more highly placed a person is, the less is his direct involvement in criminal activities. This complicates law enforcement, since the commission of crimes is left to new recruits."
The Minister's eighth criterion actually explains why some of my readers will disagree with me: "The hierarchical structure makes it possible for the leaders to operate with impunity and flaunt their role in public, projecting an image of power and invulnerability that attracts youth and makes it easier to recruit them into crime." By the way, haven't these youths spent most of their lives in government schools?
The climax is reached with the ninth criterion: "These organizations are undermining the free, democratic and safe nature of our society, which is enshrined in our charters of rights." Isn't criminalizing associations of people (as opposed to punishing the actual crimes individuals commit) much more of a threat than any criminal gang's activities?
We might not want to go as far as Lysander Spooner, who argued that our governments are "secret gangs of robbers and murderers." We might even choose not to ride the mounting tide in political philosophy that denies legitimacy to the modern State which cannot, by any stretch of the imagination, be conceived as based on free, voluntary, individual consent (see John T. Sanders and Jan Narveson, Ed., For and Against the State: New Philosophical Readings, Rowman & Littlefield, 1996).
Yet, note how the proposed criteria for a criminal gang come close to describing what government has become, whether one wants to describe it in terms of Tocqueville's "administrative tyranny," or in terms of Jouvenel's "totalitarian democracy." Anti-gang legislation would be another step towards what John Locked called "the exercise of Power beyond Right, which no Body can have a Right to."