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Canadian anti-gang laws seen as perfect fit for Island

A lawyer who has been helping Government formulate an anti-gang law for Bermuda believes the Canadian legislation is a perfect fit for Bermuda.

Kevin Comeau believes the Canadian law is a good mix of “fairness and toughness” and will not encounter human rights hurdles as gang laws have in Australia and elsewhere.

Minister of National Security Wayne Perinchief revealed at a public meeting on Wednesday that Mr Comeau had helped Government draft anti-gang legislation.

However, Mr Perinchief said, concerns over civil liberties are still being addressed, and the whole issue has turned into a “vexing conundrum” because those concerns are halting the implementation of such a law.

Yesterday, Mr Comeau told

The Royal Gazette: “I am advocating moving forward with the Canadian legislation which is a mix of fairness and toughness that will fit the Bermuda gang problem even better than it does the Canadian gang problem.”

Mr Comeau said the law is “sensitive to the fundamental rights and freedoms” that must be protected in Bermuda for the law to pass the Constitutional test.

He concluded that it would be right for Bermuda after examining legislation in more than 60 countries in the context of the social, geographic and economic factors that make gang violence what it is on the Island. He also looked at the potential policy ramifications that could follow.

“It became pretty clear that the Canadian legislation was the one that was going to meet our needs,” said Mr Comeau. “Canada is known as one of the strongest advocates of human rights in the world.”

Outlining the recommended legislation, he explained there are four levels of gang involvement recognised in Canada. The lowest is being on the periphery of a gang but not committing any crime or aiding any crime in being committed. There is no punishment under the legislation for that.

The second is low-level gang members who enhance the gang’s ability to commit crimes. Mr Comeau cited as an example someone who guards the door for a drug dealer and alerts him if the police are coming, or someone who allows his home to be used as a drug dealing den.

Punishment for that level of crime is up to five years.

“It’s very much left to the judge’s discretion so he can be fair where he needs to be fair and he can be tougher where he needs to be tougher,” said Mr Comeau.

Level three, he said “is when we switch from being extremely fair under the legislation to being extremely tough”. This section makes it punishable by up to 14 years in prison for a person to commit a gang-related serious offence. The punishment is to be served consecutively to the original crime committed.

“The power of that part of the legislation is huge because it means that when you commit one crime but you do it as part of a gang, you have now committed two crimes.”

Mr Comeau said the prospect of getting an additional 14 years on top of the sentence for offences such as gun possession makes this a good tool to persuade gang members to testify against others in return for a plea bargain.

“Let’s take the guy who is hiding the guns. Right now, when the DPP says ‘we want to cut a deal with you; we want you to testify against the big guys, he says ‘no, I will do my time’. When you pass this additional legislation he’s looking at an additional 14 years and that sentence will run consecutive to the first one, which means it only starts running after the first one has expired.

“Now you’ve got him a position of weakness where you can really get his attention, and what’s really great about the unique Bermuda system is that these gang members, like all Bermudians, have the right of abode in the UK so you can put them in a witness protection programme in the UK. This guy is monitored by the UK police all the time and for putting him in that protection programme he can testify against the top gang leaders, putting them away for life.”

Mr Comeau said the fourth level is designed to tackle gang leaders.

“These are the guys that are controlling not just the drugs and illegal activities but also the shootings and killings in Bermuda,” he said. “If anyone can control gang violence in Bermuda it is these guys.”

The Canadian legislation allows sentences up to life imprisonment for instructing another person to commit a criminal offence on behalf of a gang, such as ordering an attack on a rival gangster, even if the order itself is not carried out.

Mr Comeau explained the Canada legislation is significantly different from that implemented in some South American countries and most recently Trinidad and Tobago, where it is a criminal offence simply to be a member of a gang (see sidebar.)

Mr Comeau is a retired corporate securities lawyer who is originally from Canada. He has lived in Bermuda for 23 years, and after retiring in 1999 he began to look at solving what he describes as the gap in Bermuda “between the haves and the have-nots”.

He began talking to Minister of National Security Wayne Perinchief after Government Senator and retired Police Commissioner Jonathan Smith introduced them last May. Since then, he has also discussed his ideas with various other lawyers and the inter-agency gang task force set up by Government.

He said that before Bermuda can adopt Canada’s law, it will need redrafting to make it specific to Bermuda’s Criminal Code and he would like to see some consultation with the draftsmen behind the Canada law.

Mr Comeau added: “I’ve known for quite a while that Mr Perinchief understood the legislation and was in favour of the legislation and I think he’s working very hard to enact this along with many other things.”

In an interview with this newspaper prior to Wednesday’s public meeting, Mr Perinchief confirmed he is leaning towards Canada’s anti-gang laws as one of the best models for Bermuda.

“Canada passed its legislation in anti-gang legislation in 2009. It has survived several challenges by civil and human rights proponents who might challenge the new legislation on constitutional grounds on issues like freedom of association and assembly,” he commented.

The two remaining Members of Parliament elected under the United Bermuda Party, Kim Swan and Charles Swan, also signalled support for the Minister’s position.

Kim Swan said the impact on the community transcends party politics. “Unfortunately, by the Minister’s own admission, he lacks political support, particularly on his side of the political aisle,” he commented.

He said of the civil liberties concerns that have delayed the implementation of such legislation: “We are concerned about the civil liberties of law-abiding citizens whose quality of life have been significantly diminished by the presence of gangs, especially, the family members and perpetrators of murder victims in communities where gang activity is most prevalent.”

Kevin Comeau has advised Government on anti-gang legislation ( Photo by Arisha Butterfield).

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Published February 24, 2012 at 8:17 am (Updated February 24, 2012 at 8:17 am)

Canadian anti-gang laws seen as perfect fit for Island

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