Three strikes punted as predicted

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DALE CUMMINGS / WINNIPEG FREE PRESS

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DALE CUMMINGS / WINNIPEG FREE PRESS

An Ontario court recently struck down as unconstitutional a Criminal Code amendment at the heart of the Conservative government's first round of tough-on-crime legislation. Ontario Superior Court Justice Alan Bryant found the code section that governs declaring convicted criminals dangerous offenders violates the Charter of Rights and Freedoms.

The decision comes as no surprise. It was, in fact, predictable. And, as Justice Bryant's decision suggests, the offending amendment may also be unnecessary.

The amendment was a cornerstone of the government's 2008 omnibus crime bill, The Tackling Violent Crime Act. The revisions of the law governing dangerous offenders were much criticized as vulnerable to a Charter challenge.

Dubbed the "three strikes" provision, it deemed anyone convicted of three violent or sexual crimes a dangerous offender, and therefore liable to be imprisoned for an indefinite period. The dangerous offender label was automatic, unless the offender could prove he or she's not "a threat to the life, safety or physical or mental well-being of other persons."

Known in law as a reverse onus, the amended law shifts the normal burden of proof from the state to the offender. The Crown needn't prove anything about the character, conduct and risk to the public represented by the criminal. All it need prove is three strikes -- three qualifying convictions. Thereafter, the offender must prove he or she's not a danger to the public, or be hung with the label.

The amendments also added two new sentencing options for dangerous offenders -- a fixed term of imprisonment, and a fixed term followed by long-term supervision -- as alternatives to indefinite jailing.

Judge Bryant held that shifting the burden of proof to the offender violated the Charter's Sec. 7, which provides the right not to be deprived of life, liberty or security of the person, "except in accordance with the principles of fundamental justice." The judge saw the imposition of a reverse onus as an infringement of principles of fundamental justice.

The case involved Roland Hill, a London, Ont., man, who was convicted of sexual assault in 2000 and assault cause bodily harm in 2004. In his latest case before the court, Hill pleaded guilty to what judge Bryant called two "horrible" assaults on a "defenceless young woman."

Designating someone a dangerous offender is potentially a draconian punishment. It means the individual might never be released from prison. Judges, with good reason, have always carefully scrutinized dangerous offender applications brought by the Crown.

Hill's case also serves as an object lesson in why the three strikes provision may not be necessary to protect the public, in any event.

After tossing the reverse onus as unconstitutional, the judge looked at Hill's assessed profile, history, and the circumstances surrounding his crimes. And he didn't like what he saw. He declared Hill a dangerous offender, anyway. Hill returns to court next month to fix a date for sentencing.

It's anticipated the Crown will appeal the case, because of the Charter ruling. But the other upshot of this case is that the impugned reverse onus provision will attract more Charter challenges by other offenders.

Judge Bryant's decision illustrates that, applying settled principles, the traditional dangerous-offender provisions worked pretty well to take inveterate bad guys off the street. And the constitutionality of the pre-2008 dangerous offender law was long clear.

Now we have uncertainty in the law for as long as it takes for the issue to wend its way to the Supreme Court of Canada for final decision. Valuable court time and judicial, prosecutorial, legal aid and corrections resources must all be allocated to deal with the legal fallout from a problematic law.

It bears saying: That old cliché -- "If it ain't broke, don't fix it" -- applies to legislation, too.

Republished from the Winnipeg Free Press print edition September 24, 2012 A10