NO CALIFORNIA 'THREE-STRIKES' DEBACLE HERE

Tough New Tory Law Allows Courts More Discretion
Than Did Old Liberal Approach

One Canadian headline, over a story about the federal government's new
repeat violent offender law, claimed "No more second chances."

Actually, what the Conservatives are proposing is no more fourth
chances.

Even if the proposed law passes, when you are convicted of your first
violent crime or serious sexual assault, the current, lenient criminal
penalties will apply. You will be given a second chance.

When you are convicted a second time for armed robbery, aggravated
assault, drug trafficking, rape, or any of seven other major, violent
crimes identified by the Tories, today's lax rules will still apply.
You will still get a third chance.

The typical two-time violent offender is currently released after just
under four years in prison. That won't change.

But if you are convicted a third time of one of the crimes on the list
of 11 the government has compiled, well, sorry, you may not get a
fourth chance.

May not.

A judge may still decide to give you your fourth chance. What the
government has proposed is that the fourth chance no longer come
automatically, as it does now. Now, you can continue to commit
serious, violent offences your whole life, and Canada's courts are
pretty much obliged to keep granting you unlimited new chances. A
Crown prosecutor might succeed in convincing a judge to stop issuing
you chances and designate you a dangerous offender after a third or
fourth major conviction. But if the prosecutor is not persuasive
enough, you'll be back out on the street in three to five years, maybe
less, after each new offence.

The Tories plan is not an American-style "three-strikes" law. In
California, which has the most famous three-strikes statute, if you
are convicted of two violent felonies, you will go to jail for life on
conviction of a third felony, violent or not. That has led to such
absurdities as two-strike felons being sentenced to life in prison for
boosting the pizza delivery guy or shoplifting a child's CD.

Nothing even approaching that is being proposed for
Canada.

What the Conservatives want to see is persons convicted of their third
violent crime or serious sexual assault automatically designated
"dangerous offenders," with no chance for parole for seven years.

Even then, if the accused can convince the sentencing judge he's not
likely to be dangerous a fourth time upon release, the judge would
retain the discretion not to label him a dangerous offender.

What will change is the burden of proof. Now, even after the third or
fourth or fifth violent offence, it remains up to Crown prosecutors to
prove you should be called a dangerous offender. Under the Tories' new
law, after the third conviction if would be up to the accused to prove
he doesn't deserve that label.

That sounds fair.

The other change would be a new minimum sentence. After a third
offence, if you were designated a dangerous offender, you would have
to serve a minimum of seven years before being consider for release.

That sounds fair, too. We are not talking about kids who got caught up
in a couple of petty crimes, or adults who have broken into a few cars
or houses. This new law would apply only to the hardest of hardened
criminals.

The dangerous offender label already exists in our justice system. Any
convict so labelled is sent to jail indefinitely and cannot be
released until he convinces a court he is no threat to reoffend.

In theory, you can be designated a dangerous offender after committing
a single, serious crime, provided the Crown can convince your
sentencing judge that you pose a great risk to the public.

Frankly, I don't like the dangerous offender rule because of the
indefinite sentence that goes with it. If someone is so dangerous,
send him away for a long time, but let him know from the outset how
long his sentence will be. An indefinite sentence is like moving the
goal posts in the middle of the game -- and continuing to move them.

It is one of those silly Liberal dichotomies: They recognized a decade
or so ago the need to get tough with some offenders, but they didn't
want to be seen to be too tough. Besides, they remained steadfast in
their belief that every boy is a good boy and capable of
rehabilitation.

So they wanted to send some away for a long time, but not too long, in
case they thought you'd reformed, in which case they could let you out
early, which is really what they wanted.

But the current dangerous offenders rules are all this minority
government has to work with.

Several critics of the proposal have charged it is un-Canadian. "It
flies right in the face of Canadian criminal justice," said Louise
Botham, president of the Ontario Criminal Lawyers Association.

Maybe.

Maybe it won't survive a charter challenge in the courts,
either.

But it seems to me to be a very Canadian balance between the rights of
the accused and the public's right to be safeguarded from violent criminals.