Wednesday, September 19, 2012
Judge declares part of 2008 Tory omnibus crime bill unconstitutional
This is less of a big deal than it might seem. Dangerous Offender applications are very rare and regardless of the onus are fought vigorously. As a practical matter this will make a samll change is a vanishingly small number of cases:
An Ontario court has declared another plank of the Conservative government’s tough-on-crime agenda unconstitutional.
Ontario Superior Court Judge Alan Bryant struck down a section of the Criminal Code introduced in 2008 dealing with dangerous offenders in a decision published Tuesday.
The ruling comes in a year during which judges in Ontario have already struck down two mandatory minimum firearm penalties from the same “Tackling Violent Crime” omnibus law.
Dangerous offenders — sex killer Paul Bernardo is designated as one — can be given indeterminate sentences and be locked up for life.
What changed in 2008 was that the new provision provided a shortcut of sorts for the Crown in a small subset of cases.
If an offender was convicted three times of a specified violent or sexual crime with sentences of at least two years the burden of proof shifted from the Crown to them.
All the Crown had to prove was that the offender was convicted of those offences and was sentenced to at least two years. The offender then had to try to prove that they did not have a pattern of dangerous behaviour.
That burden is too onerous, lawyer Peter Behr argued — and Judge Bryant agreed.
“(The law) reverses it and puts it on the accused to say, ’You’re real bad and we’re going to put you away, you’re likely to be put away forever, unless you show otherwise,“’ Mr. Behr said in an interview from his office in London, Ont.