In my last post I discussed Bill-C27, the Conservative’s new Dangerous Offender legislation, or rather, proposed legislation. My question was, will Bill C-27 make society safer? I received one response that it will not, it will just give lawyers yet another way to lock people up. I would argue that it won’t even do that because Bill C-27 is unlikely to remain law for very long. Why? Because of the Canadian Charter of Rights and Freedoms – that tiny little piece of constitutional legislation that has made a gigantic mark on Canadian justice and politics.
A very similar reverse-onus clause exists under the Youth Criminal Justice Act in which a young person, when convicted of any one of several presumptive offences, such as murder, is immediately presumed to receive an adult sentence – the harshest of which is life imprisonment. Compare that with the harshest youth sentence of 3 years. The onus then falls on the youth to demonstrate why a youth sentence would be sufficient to hold them accountable. This reverse-onus clause has been challenged twice as contravening the Charter. The BC Court of Appeal ruled in February of 2006 that the reverse onus is not unconstitutional and does not present the offender with an unreasonable burden (R. v. K.D.T., [2006] B.C.J. No. 253), while the Ontario Court of Appeal ruled in March of 2006 that the reverse onus does breech the young person’s Charter rights (R. v. D.B., [2006] O.J. No. 1112). This issue is likely to make its way to the Supreme Court of Canada for a definitive ruling on the constitutionality of the reverse onus portion of the YCJA. There is every reason to believe that the same will happen if Bill C-27 becomes law.
If it becomes law and then immediately undergoes constitutional challenges that could eventually result in it being struck down, what would it have actually done? Nothing. In fact, this seems to be the general consensus – outside the Conservative camp at least, but then even the Conservatives must know this (it would be unwise to assume they are simply stupid). The only other option then, is that it is some form of political wrangling; just a politicians game really, the point of which is totally irrelevant. What is relevant, is that it will not, or should we say, is not likely to, make society any safer. But that’s the sell line.
ash…
I am a man on a mission to create a world that I will be proud to pass on to my son. I use every tool at my disposal toward this task: words, images, technology, education, relationships. We must act now because the need is great! 