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.