Pubdate: Thu, 26 Oct 2006
Source: Calgary Herald (CN AB)
Copyright: 2006 Calgary Herald
Contact:  http://www.canada.com/calgary/calgaryherald/
Details: http://www.mapinc.org/media/66
Author: David Alford, The Calgary Herald
Note: The author is a long-time Calgary resident who was formerly a senior
research officer with the federal Department of Justice

REVAMPED OFFENDER LAW WON'T MEAN JAMMED JAILS

When Stephen Harper's government introduced Bill C-27 to protect 
Canadians from dangerous offenders, opponents raised a resounding 
critical roar. Granted, major changes to existing law merit major 
debate. But regrettably, many criticisms are more myth than fact.

Briefly: in keeping with the Supreme Court decision in R. vs. Johnson 
(2003), high-risk offenders who pose an ongoing threat to society and 
who are unlikely candidates for rehabilitation within the community 
may be designated as dangerous offenders. They must have received 
sentences of two years or more for each of three violent or sexual 
offences. They receive indefinite (lifetime) sentences, with a 
minimum of seven years before their first parole hearing.

Historically, Canada has had dangerous offender legislation in place 
in one form or another since 1947, so it's nothing new. There are 
roughly 360 in Canada, or less than one per 100,000 population. Why 
so few? The current process is cumbersome and ineffective.

These new measures will streamline procedures, making it easier to 
apply the dangerous designation. Greater numbers of the "baddest of 
the bad" will be locked away indefinitely. But unlike similar laws in 
the U.S., our penitentiaries won't be flooded with petty criminals 
who don't deserve major time for minor crime.

Criticism has coalesced around three areas. The first is the concern 
that dangerous offender legislation might cast too broad a net. Just 
as nobody wants to hang an innocent man, nobody wants to wrongfully 
label someone dangerous.

These proposals contain multi-layer safeguards against that 
happening. First, consideration is limited to a narrow list of 
serious personal injury offences, as designated in Criminal Code 
Section 752. Then, the proposals only apply to three-time offenders 
handed lengthy sentences for each conviction.

Next, dangerous offender status is not automatic: judges retain 
discretion to impose a lesser sentence. Finally, offenders are 
provided an opportunity to show cause, under a reverse onus, why they 
should not be designated dangerous. This is far different from 
notoriously flawed U.S. three-strikes laws.

The second myth concerns the reverse onus clause. Some critics are 
incensed at the thought of rebalancing the judicial scales between 
the rights of victims and the rights of three-time convicted 
criminals. They claim this clause will not withstand a charter challenge.

Perhaps these critics could clarify whether they mean that only 
taxpayers should face a reverse onus of proof. Reverse onus is, after 
all, a fundamental tenet of the Income Tax Act. Are taxpayers to be 
treated less fairly than thrice-convicted dangerous criminals?

Conversely, reverse onuses are indeed rare in the field of criminal 
law (bail violations and insanity pleas are two exceptions). Legal 
scholars and historians will no doubt debate this point at length.

However, note an important distinction: the reverse onus only arises 
at the sentencing stage, following conviction. The presumption of 
innocence remains intact. It is a myth to say that the reverse onus 
clause in this initiative attacks fundamental freedoms.

Further, consider this: it is Harper's prerogative to propose 
legislation whereby dangerous offender status is automatically 
conferred after the third serious conviction. Then there would be no 
judicial discretion in the matter, nor any opportunity for the 
offender to dissent. Given the choice between a chance to plead one's 
case, even against a reverse onus of proof, or no chance at all, I 
suspect pragmatism will trump principle.

The third myth is one repeated by many journalists and some experts 
in the field. They commonly say that a three-strikes law will not 
reduce crime because similar measures in the U.S. have proven ineffective.

The difficulty with this type of statement is that crime rates are 
the result of many things all happening simultaneously.

We have no idea whether other variables are remaining constant or not 
and, if they are changing, how they are changing. This defeats the 
best attempts to achieve sound scientific methodology. Without proper 
methodology, scientists cannot draw sound conclusions.

Furthermore, to examine three-strikes laws and to say, in effect, 
"Well, we tried it with and without Variable X and there was no 
measurable difference, so therefore Variable X doesn't work" is to 
propagate a logical fallacy.

The logic of science operates only one way: we can prove that 
something exists, but we can never prove that it doesn't. That's why 
science remains mute on the question of God's existence.

Those who say that three-strikes laws do not reduce crime rates are 
commonly guilty of both erroneous scientific method and faulty logic; 
they spread myths. Little wonder most people think that "there are 
lies, damned lies, and then there are statistics."

Ultimately, what do we know? We can't be certain in advance just how 
well this legislation will work. But we do know that the three most 
common criticisms are a mirage of myth and misconception. Issues 
should be argued on ideological grounds, not false facts.

Here's a final thought: Far from the raging debates, indeed passed 
over by many conducting them, there is a different perspective on 
dangerous offender legislation, one that offers hope and solace: 
there is a 99.9 per cent probability that Paul Bernardo and the 359 
dangerous offenders like him won't reoffend against the public during 
the time they are behind bars.

Maybe that's what really matters to the victims of these predators, 
and Canadians in general.
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MAP posted-by: Elaine