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Judge calls foul on ‘three-strikes’ law

|Written By Michael McKiernan

A London, Ont., judge has dealt a blow to the federal government’s tough-on-crime agenda after declaring a provision of the Criminal Code dealing with dangerous offenders to be unconstitutional.

The three-strikes-style section became part of the Criminal Code in 2008 through the Conservative government’s Tackling Violent Crime Act.

It provides that any person convicted of a third designated serious personal injury offence and sentenced to at least two years for each would be presumed to have met the dangerous offender criteria unless the accused could prove otherwise on a balance of probabilities.

A dangerous offender label carries with it the possibility of an indeterminate sentence.

The provisions ended up before Ontario Superior Court Justice Alan Bryant in the case of Roland Hill after Crown lawyers indicated they would be relying on s. 753 (1.1) in an application to have Hill declared a dangerous offender following his guilty plea to the attempted choking and aggravated sexual assault of a woman.

He had previously been convicted of two other designated offences.

But Hill’s defence lawyer, Peter Behr, claimed the shift in the burden of proof violated his client’s s. 7 rights under the Charter of Rights and Freedoms that protect the right to life, liberty, and security of the person. In his Sept. 13 endorsement, Bryant agreed.

“Since s. 753 (1.1) reverses the onus on the Crown to prove aggravating factors beyond a reasonable doubt, it contravenes s. 7 of the Charter,” Bryant wrote, calling the section a “prima facie violation of the principles of fundamental justice as it purports to require a dangerous offender finding to be made, even in the face of a reasonable doubt.”

“The dangerous offender indeterminate sentence is the most severe sentence in Canadian criminal law.

Leaving aside administrative efficiency arguments, no valid grounds were advanced for allocating the burden of proof to the offender to prove on a balance of probabilities that he does not meet the s. 753 (a) or (b) criteria,” Bryant concluded.

The ruling is an important one, says Behr. “I think it’s pretty significant in that it emphasizes where the onus should lie, and that is on the Crown, to prove aggravating factors beyond a reasonable doubt,” he tells Law Times.

Toronto lawyer Daniel Brodsky, who has defended a number of clients facing dangerous offender hearings, says the judgment was “inevitable.”

“It’s not just that if you look south to the U.S., you can see that three-strikes legislation fails miserably in terms of protecting the public,” he says.

“It placed defendants in a position where everything was reversed and they had to prove a negative that they were not going to present a recidivism risk, that they will take treatment, and that it will work. It’s an impossible threshold to meet.”

Brodsky expects the government will appeal the ruling and hopes an appellate court can offer guidance for counsel.

“It’s entirely standardless at this point. You can’t open your Criminal Code and say, ‘Well, my client is facing a three-strikes dangerous offender hearing, what evidence do I need to call?’

This forces the courts to sit up and take notice of who has to prove what and what’s reasonable in the context of burden of proof.”

Crown lawyers argued that the section should be saved by s. 1 of the Charter because it streamlined the process for labelling offenders as dangerous and applied only to a small class of individuals.

But Bryant remained unconvinced as he found no “pressing need” to streamline the process. “Government statistics concerning dangerous offenders do not indicate an urgent need for streamlining dangerous offender applications,” he wrote.

“Between 1978 and April 2005, 384 persons were designated as dangerous offenders. The number of persons designated as dangerous offenders increased from eight in 1978 to a yearly average of 22 in the years 1995 to 2004.”

Bryant went on to conclude that “a breach of an individual’s s. 7 rights cannot be justified or condoned in a free and democratic society because the class of affected individuals is small.”

Behr also argued that the provision violated Hill’s s. 11(d) and 12 rights under the Charter in relation to the presumption of innocence and cruel and unusual punishment.

Bryant sided with the Crown on the s. 11(d) argument, finding that the presumption of innocence doesn’t apply at a sentencing hearing. He declined to consider the s. 12 argument after finding the s. 7 breach.

In its 2007 submission to Parliament on the Tackling Violent Crime Act, the Canadian Bar Association’s national criminal justice section had warned the government to expect a fight on the dangerous offender changes.

“We expect that the reverse onus provisions would attract vigorous constitutional challenge under section 7 of the Charter,” the submission reads. In addition, the CBA warned that the “presumptive ‘third-strike’ predicate offence would very likely result in many more cases at all stages going to trial to avoid a conviction.

This would be the case for any primary designated offence, whether the offence in question was the offender’s first, second or third. Delays in court administration and resulting increased demands on resources would be the inevitable result and should be carefully considered.”

Hill was originally convicted in 2000 of sexual assault and received a custodial sentence of two years and six months. Then in 2004, he got two more years for a conviction of assault causing bodily harm after serving more than five months in pretrial custody.

His 2010 guilty pleas included his third designated offence for crimes that Bryant described in his judgment as “horrible.”

Despite his finding on the constitutionality of s. 753(1.1), Bryant went on to find that Hill should be labelled a dangerous offender using the traditional test and the case returns to court on Oct. 16 for the judge to deliver his sentence.

In a statement, Ontario Ministry of the Attorney General spokesman Brendan Crawley stressed that the ruling applied only to the presumption in s. 753(1.1) of the Criminal Code.

“The dangerous offender regime in the Criminal Code is not otherwise affected by this ruling,” he said.

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