'A breach of an individual's rights' - Macleans.ca

‘A breach of an individual’s rights’

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An Ontario judge has declared a Harper government measure on dangerous offenders to be unconstitutional.

Traditionally the Crown had to prove several requirements before someone is designated a dangerous offender, including a pattern of dangerous behaviour or likelihood of causing pain through a failure to control sexual impulses. 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 … “I do not accept the Crown counsel’s submission that there is a pressing need to streamline the process for labelling a small class of individuals as dangerous offenders,” Bryant wrote. “A breach of an individual’s (charter) rights cannot be justified or condoned in a free and democratic society because the class of affected individuals is small,” Bryant concluded.

As Colby Cosh detailed earlier this year, two mandatory minimum sentences imposed by the Harper government have also been challenged. The Prime Minister later called on the courts to “take these penalties seriously.”