‘A breach of an individual’s rights’

by Aaron Wherry

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.”




Browse

‘A breach of an individual’s rights’

  1. It is peculiar to listen to judges talk about how individuals have the right to sexually attack women and not be severely punished. I wonder how many women Roland Hill will be allowed to sexually attack before Judge Bryant thinks he is dangerous.

    Lib Party is superfluous while liberal judges exist.

    • I’ll bet you think the Green party only has green people.

    • Why do conservatives hate the rule of law? Is it their fascist tendencies? Canada can only function while conservatism is held in check.

      • They like these laws because they are easily abusable. They are used to silence protest and to threaten innocents. I wish we had a government that respected to rule of law and weren’t just looking for ways to twist it to their dark agendas.

    • You pretending to care about women’s rights is a bit rich, Tony. If a woman is impregnated by a rapist you would force her to have his baby.

  2. Canadians still don’t get it. You do not have rights. You have privileges. That’s it. Nor does it matter what some judge or even the Supreme Court says. A simple ‘Notwithstanding Clause’ wave of the hand is all any government needs to over-turn ‘rights’. No common language, culture or protection under the law will do that to ya.

    • Any govt, anywhere in the world, can remove rights at the drop of a hat.

      • We used to have values in Canada. This government is dragging us all through the mud.

        • I don’t think Harper and the Cons understand Canadian values….so they don’t mind stomping on them

    • http://www.cbc.ca/news/background/cdngovernment/notwithstanding.html

      Not nearly so simple. The NWC only applies to certain parts of the charter[not the whole constitution] and it must be renewed – IOWs citizens can change it at the ballot box. It’s use has been very limited in any case. Interestingly enough previous provincial bill of rights legislation also had an override. So much for politicians and legislatures will guarantee your rights. I should point out the provinces insisted on the NWC, not the federal govt.

  3. What needs to happen for the Conservatives to be effective is for Stephen Harper to take our exisitng institutions and legal traditions seriously, and, if he wants to change laws, write them as a lawmaker who consults and amends and improves, not as if he is Canada’s CEO.

  4. In terms of the specific measures outlined in the article above, it’s a good idea to be wary of reverse onuses, esp. in criminal law. And the idea of “proving a pattern of behaviour” seems at first glance so nebulous and amorphous that I’m more comfortable requiring the crown to prove it then have to rely on the accused disproving it.

Your email address will not be published. Required fields are marked *