TORY SENTENCING PROPOSAL UNFAIR

No politician ever lost votes by promising to "get tough on crime."
Stephen Harper's proposal to get tougher on repeat serious offenders
does meet a legitimate public concern about slack sentences. But the
Conservative government's planned new "three-strikes" law is too hard
a blow to the ancient doctrine that liberty should not be curtailed
pre-emptively.

It's important to remember that this might be merely virtual
legislation. All three opposition parties are likely to balk at the
idea that some criminals should have to prove they will not offend
again. This would allow the Conservatives to campaign as the
anti-crime party, but it would also mean the bill is not likely to
pass.

If it did pass, it might not survive a court challenge under the
Charter of Rights. Harper says the bill, going to Parliament next
week, has been drafted with existing jurisprudence in mind. Given the
Supreme Court's willingness to move the goalposts in Charter cases,
however, that could prove to be not good enough.

But these hypotheses should not distract us from considering the
proposal as it is. And in fairness, it must be admitted that this bill
is much more limited than existing "three-strikes-and-you're-out" laws
in California and many other states.

First, this law would apply only to 11 specific serious violent or
sexual crimes. Second, this law would apply only after three
convictions involving federal prison time, not offences that bring
jail terms of less than two years. Third, this bill would allow for a
parole hearing after seven years, and every two years after that.

Canada already has a "dangerous-offender" category, which carries with it an
indefinite sentence and which is used only in the most extreme cases.
However, at present it's the Crown that must show an individual deserves
that status. The Conservative bill shifts that onus to the individual. But
how can anyone prove that he will not commit another crime? Could you? We
agree with Louise Botham, president of the Criminal Lawyers Association: The
whole notion is "fundamentally unfair."

But if this isn't the solution, what is? There truly is a problem
here, as Harper demonstrated by adding crime victims' relatives to his
supporting cast of police officials when he unveiled the bill. There
have been too many cases of repeat offenders, blithely freed by some
oblivious judge or inept bureaucrat, killing or raping again.

Sentencing under existing law, easy-going early-release policies,
assessment measures, all of these can and should be improved to keep
more villains off the street. Would measures such as these bring down
the recidivism rate? We should find out before Ottawa starts requiring
anyone to prove in advance that they will obey the law.

Two other measures in the Conservative proposal, less controversial
ones, promise to be useful and deserve opposition support. One of
these is to double the maximum period for which a judge may impose a
peace bond.

The other is to set up a national monitoring system that would allow
authorities to keep track of released offenders who are deemed to be
at relatively high risk of reoffending.