Ontario Judge Says Dangerous-Offender Law Flawed

14 Oct, 2012

Even though the judge found the law’s presumption that certain serial offenders are dangerous to be a violation of the Charter, he still concluded based on the Crown’s evidence the criminal was a dangerous offender.

A relatively new section of the Criminal Code makes it too easy to label cer- tain serial offenders as ‘dangerous offenders’ and infringes upon the principles of fundamental justice under the Charter, an Ontario judge has ruled in a precedent-setting case.

Typically, when prosecutors want to designate someone a dangerous offender—the label carries the possibility of an indefinite prison sentence— they have to call on the opinion of experts, such as forensic psychiatrists, and prove beyond a reasonable doubt that the offender is dangerous.

But in 2008, the Tackling Violent Crime Act streamlined the process for certain serial offenders. If someone was convicted at least three times of serious or violent offences, he was automatically presumed to be dangerous and the burden fell on the defence to prove otherwise.

This presumption and the reverse onus of proof, wrote Ontario Superior Court Justice, Alan Bryant on September 13, 2012 is a fundamental change in the dangerous offender process and a ‘significant’ infringement of Section 7 of the Charter.

Crown lawyers argued that the dangerous offender designation process applied only to a ‘small class of individuals who have proven to be very dangerous in the community’.

But the judge did not accept the Crown counsel’s submission that there is a pressing need to streamline the process. He wrote, “A breach of an individual’s (Section 7) rights cannot be justified or condoned in a free and democratic society because the class of affected individuals is small.”

The defence lawyer, Peter Behr, said the ruling is significant because it upholds the concept that when someone has been found guilty, aggravating facts that could lead to a harsher punishment still need to be proven by the Crown beyond a reasonable doubt.

Source: The Gazette 

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