The Criminal Code Amendment Act — which allows for additional prison sentencing for crimes committed as part of gang activity — was passed yesterday [July 6] in the House of Assembly, with MPs from both sides supporting the Bill.
Explaining the legislation, Minister of National Security Wayne Perinchief said: ”The Bill proposes that a sentencing court will be entitled to take into account those overt actions associated with the gang lifestyle. Names, signs, symbols, frequent associations and activities related to the gang all factor into this equation.
“It is important to note that these determinations form part of the sentencing phase and so no prejudice is caused to the innocent man or woman. For a court to have regard to these things an individual must, by definition, be convicted of some offence.
Minister Perinchief continued: “Too often the clever distance maintained by gang leaders from ground level operations frustrates the efforts of law enforcement. Those who quite literally “call the shots” escape prosecution because they are miles from the scene of a crime that in fact they have orchestrated.
“With this Bill comes a clear means by which to ensure that those who direct and instruct others in unlawful acts will also face consequences.”
The Bill contains a “sunset clause”, with the provisions in place only until the end of 2015. ”They can be extended if necessary but we must continue to speak hope over our young people and our society,” said Minister Perinchief. ”My hope is that we will not need them beyond that time.”
Minister Perinchief’s full statement follows below:
Mr. Speaker, the implementation of policy is often driven by vision and ideas, founded in a desire to improve the lives of people and to deliver on promises made to the electorate. From time to time on the political journey, Governments are required to test and adjust positions based upon prevailing circumstances.
Occasionally, Mr. Speaker, conditions loom so large over society that a Government must act deliberately and address a mischief that goes to the very core of the community.
Mr. Speaker, the Bill before this Honourable House represents a strong and necessary step to deter those who would commit crime and to effectively punish those who choose to.
Mr. Speaker, this Criminal Code Amendment Bill 2012 crystallizes this Government’s commitment to strong enforcement, swift justice and stiffer penalties. Let me make it clear from the outset; this Bill is not brought lightly.
Its provisions significantly affect the liberty of those who offend. This Bill, in different times, is unlikely to have come from this Party’s benches. However, Mr. Speaker, these are unique times in this Island’s story and that means that many of us must defy our natural inclinations and do what must be done.
Mr. Speaker, as part of the process to formulate this Bill, we consulted the Judiciary, the DPP and the Police. I am grateful to each of these entities for their considered opinions that have assisted in crafting not just the Bill, but in anticipating some of the practical requirements of its provisions.
Mr. Speaker, the main provisions of this Bill have been adopted from section 467 of Canada’s Criminal Code. In the 1990s Canada was faced with similar issues as we are today. Gangs had become involved along ethnic lines in some cases in significant criminal activity and gun crime rose steadily.
In an effort to deal with these elements of organized crime the Federal Legislature of Canada enacted similar provisions in 1997. These were used first and to great effect in Quebec to deal with a specific problem of biker gangs in that province.
Mr. Speaker, in the course of his testimony to the Standing Committee on Human Rights and Justice in 2007, Mr. Randall Richmond, Deputy Chief Prosecutor in Quebec’s Department of Justice said:
“The results obtained demonstrate that it is possible to prove gangsterism, but one should not conclude that it is easy to do so. On the contrary, it can be arduous.
In almost all of the cases where we have charged gangsterism, this came after lengthy investigations of 12 to 24 months, during which wiretapping and physical surveillance were carried out and prosecutors were involved as legal advisers during the investigations.”
Mr. Speaker, we do not suggest that this Bill creates an easy regime and it should not. Behaviour which is otherwise
normal should not be criminalized without good reason. But Mr. Speaker, the nature of crime has changed and the shield of constitutional freedoms cannot be perverted into a sword of criminal behaviour.
Mr. Speaker, Honourable Members will have noted that the Bill creates a sentencing regime based on the commission of crime as part of unlawful gang activity. For the first time we seek to define, in law, an unlawful gang.
That definition connects the number of persons with the commission of crime and the benefits, financial or otherwise that accrue to the unlawful gang.
Mr. Speaker, the Bill proposes that a sentencing court will be entitled to take into account those overt actions associated with the gang lifestyle. Names, signs, symbols, frequent associations and activities related to the gang all factor into this equation.
For the avoidance of doubt, Mr. Speaker, it is important to note that these determinations form part of the sentencing phase and so no prejudice is caused to the innocent man or woman. For a court to have regard to these things an individual must, by definition, be convicted of some offence.
Mr. Speaker, some Honourable Members will be familiar with the concept of the increased penalty, which has been considered and passed in this Honourable House in relation to the Misuse of Drugs Act and which is applied in the Courts today.
Mr. Speaker, the principle in this Bill is similar in that the “aggravating” feature of the crime committed is the unlawful gang activity at its core.
Mr. Speaker, the Bill requires the court to first determine the basic sentence for the offence committed and where the offence committed falls within the definition of unlawful gang activity an additional element of imprisonment or fine is then imposed.
Mr. Speaker, in a Statement to this Honourable House when the Bill was tabled I indicated then that its provisions sought to cast a wide net. Mr. Speaker, the Bill creates a specific offence of instructing a person to commit an offence related to unlawful gang activity.
Too often the clever distance maintained by gang leaders from ground level operations frustrates the efforts of law enforcement. Those who quite literally “call the shots” escape prosecution because they are miles from the scene of a crime that in fact they have orchestrated.
Mr. Speaker, with this Bill comes a clear means by which to ensure that those who direct and instruct others in unlawful acts will also face consequences.
Mr. Speaker, this is strong stuff. In no way does it suggest that other efforts are not succeeding. Honourable Members will have seen equal energy from this Government devoted to front-end causes and the preventative side of this issue.
The successful gang mediation training and the pending deployment of street workers demonstrates that we are confident that this social phenomenon can also be addressed outside of the criminal justice system.
Mr. Speaker, for this reason, this Bill contains what is referred to as a “sunset clause”. That is to say, these provisions are in place only until the end of 2015. Mr. Speaker, they can be extended if necessary but we must continue to speak hope over our young people and our society. My hope is that we will not need them beyond that time.
Mr. Speaker, Bermuda’s Constitution guarantees freedom of assembly. It guarantees rights of association. It even permits freedom of expression. The Bill before this Honourable House curbs none of that. I say that with confidence Mr. Speaker because the Constitution does not protect unlawful acts. The Constitution does not sanction criminal behaviour.
Mr. Speaker, as I yield to allow other Honourable Members an opportunity to contribute to this debate, I am mindful of the fact that this Bill compliments the 2009 legislation passed in this Honourable House.
Those provisions were also cast as harsh, however their worth has been seen recently in effecting a welcome change in the west end.
Mr. Speaker, this Government does not legislate wantonly, but we are committed to providing the Police with the legislative framework to enforce and through this Bill we provide similar support to the courts who like us in this House, are charged with protecting the public.
Thank you Mr. Speaker.