TORIES WANT TO DISPENSE WITH BASIS OF LAW

Onus on Criminals to Prove Innocence

If you are accused of a crime in Canada, the Crown must prove your
guilt beyond a reasonable doubt.

You don't have to establish your innocence. The burden of proof falls
upon the state.

Why? Because it is such a drastic thing for a government to deprive a
citizen of liberty.

The state has plenty of weapons in its arsenal to make its case. It
has police officers, Crown prosecutors, a budget to hire expert
witnesses. A defendant doesn't have access to the same resources.

So our justice system balances the scales by putting the onus on the
Crown to prove that you belong in jail.

Canadian law starts with the presumption that we all have a
fundamental right to freedom -- not with a presumption that the Crown
has the right to incarcerate us, unless we can prove our worthiness
to be let out. The state can't lock you up, not without first making
and proving its case in court.

It's a rule of law as old as the Magna Carta, a golden thread that
runs through almost 800 years of British

legal tradition. And it's enshrined in Section 11 of the Canadian
Charter of Rights and Freedoms, which guarantees that any person
charged with an offence has the right to be presumed innocent until
proven guilty.

Now, Stephen Harper and his Conservative government want to turn the
fundamental principle underlying our entire criminal justice system
on its head.

In a speech this week, the Prime Minister outlined plans for radical
new legislation, which would automatically declare any person found
guilty of three sexual or violent crimes to be a dangerous offender.
As such, they would be jailed indefinitely with no chance of parole
for at least seven years.

Currently, the Crown can apply to have particularly violent and
incorrigible criminals declared dangerous offenders.

But the process requires a thorough hearing, where the Crown must
show that an individual is so menacing, so likely to reoffend that
indefinite incarceration is the only solution. It's an extraordinary measure.

Currently, there are only 360 dangerous offenders in all of Canada.
In Alberta, the Crown usually only seeks about a half a dozen
dangerous offender designations a year.

Harper's proposal would change that. It would turn everyone found
guilty of three serious violent or sexual crimes into dangerous
offenders by default. The Crown would no longer have a duty to
demonstrate why someone should be locked up for good. Instead, the
prisoner would be compelled to prove why he or she should not be
jailed in perpetuity.

But it's hard to prove a negative. It's far easier for the Crown to
argue that someone is dangerous than for a convicted felon to
guarantee he's not a risk. How exactly do you prove your future innocence?

Now perhaps you don't much care about the civil rights of serial
pedophiles or recidivist armed robbers. Maybe you figure that anyone
who commits three serious crimes doesn't deserve due process. After
all, anyone who's already been convicted of three heinous criminal
offences is anything but innocent. Their guilt has already proven.

"Three strikes and they're out!" you might well say. "Lock 'em up and
throw away the key!"

But let's weigh the costs of abandoning the most fundamental tenet of
our justice system against the potential benefits.

The American experience suggests long-term incarceration of repeat
offenders does little to reduce serious crime.

A 2004 report by the Justice Policy Institute in Washington, D.C.,
cited FBI crime statistics to show that violent crime and homicide
rates between 1993 and 2002 actually dropped faster in states without
"three strikes" laws than in states that had them.

The report also compared California, which had the toughest "three
strikes" law -- it sent people to jail for life even if their third
crime was stealing a piece of pizza -- to New York, which had no such
legislation. New York's overall crime index fell 50 per cent from
1993-2002, while California's fell only 39 per cent.

Yet despite that falling crime rate, between 1994 and 2004, the 10
years of California's "three strikes" policy, its prison population
rose almost 23 per cent.

The Justice Policy Institute study estimated that building and
staffing the extra prisons to house all those prisoners cost the
state an extra $8 billion US over 10 years.

What happens if we import such American tactics? What might it cost
our already bogged-down court system, in time and money, to run
dangerous offender hearings for hundreds of criminals every year?
What might it cost to build and staff all the necessary new prisons,
to feed and clothe and house all those people indefinitely?

And will spending all this money make us any safer?

Or make our justice system any more just?

Civil liberties aren't just for the innocent. They're for the guilty,
too. Indeed, the more serious the crime, and the greater the public
interest in seeing someone locked up for life, the more important the
constitutional rights and protections of the prisoner become.

If someone truly warrants that dangerous offender label, then let the
Crown make and prove the case for indefinite, long-term
incarceration. Yes, we should use dangerous offender legislation to
keep the worst of the worst off our streets.

But we can do that while still respecting the rule of law, the spirit
of our constitution and the fundamental freedoms that are our most
precious inheritance.