Thursday, October 19, 2006

Bill C-27 In Detail

Bill C-27 is available to read now. Like most law, the text of it is rather dry reading, but it does warrant a closer examination than merely "flipping it off" as a trivial amendment to the Criminal Code of Canada. (after all, most of us are law abiding citizens, and it really talks about "hard core" offenders, right? - well perhaps such complacency is ill-placed)

The first thing that struck me was the rework of section 752(1) with a positively enormous list of specifics. The original wording was quite broad, and reads:

“serious personal injury offence” means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

This has been replaced by a lengthy list of offenses, naming just about every offense that ever makes headlines. I haven't read through the list in detail, but it strikes me as a bit brain damaged to do, partly because exhaustive inventories seldom recognize the ingenuity of the truly vile, and because such exhaustive lists tend to be constraining in the long term.

It is the amendments to section 753(1) that worry me most. After Bill C-27 has been passed, section 753.1 will read as follows:

753.1 (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that

(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted;

(b) there is a substantial risk that the offender will reoffend; and

(c) there is a reasonable possibility of eventual control of the risk in the community.

(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.

(1.2) Despite subsection (1), the court shall not find the offender to be a dangerous offender if it is satisfied by the evidence adduced during the hearing of an application under that subsection that a lesser sentence — either a finding that the offender is a long-term offender or a sentence for the offence for which the offender has been convicted — would adequately protect the public. Neither the prosecutor nor the offender has the onus of proof in this matter.

* Underlined text is new
* Bold Text is my emphasis

There are serious, and significant ramifications to this single small sentence. First, is the assumption that prior convictions automatically define a "pattern" of behaviour. This is an amazingly dangerous assumption to make. Let me put forth a possible scenario. At the age of 18, someone is convicted of two offenses under the amended list mentioned earlier arising out of a barroom altercation that got seriously out of hand. Convicted, they serve their time, and eventually return to the community and live a relatively normal life until they are in their late 50s, and catch a thief breaking into their home in the night. Picking the only thing that falls to hand at the moment - a crowbar or some such - our convict kills the thief. At this point, he is quite likely to find himself facing charges of manslaughter. Following conviction, a slightly overzealous crown prosecutor who is seeking to make a name for themselves decides to file a dangerous offender claim in the case.

Now, when the case is placed before the judge, the prior convictions - even though they happened forty years earlier - are presupposed to define a pattern of dangerous behaviour. Combine this with situations like the David Milgaard case and several other wrongful convictions, the measure is very dangerous because it makes a blanket assumption of pattern where none may exist in reality.

This leads into my second worry about this amendment. This appears to violate two aspects of our legal system - the assumption of innocence, and second the notion of "habeas corpus". I find it greatly disturbing that past conviction is presupposed to describe future behaviour, without any reasonable test of the relevance of those convictions to the situation currently before the courts. This is essentially accusing and convicting someone of some undefined future crime, without providing reasonable recourse for the defendant.

Because the law is exercising the right of conviction, and because it is by assumption, downloads the "burden of proof" from the crown to the defense, the extended detention of the offender is arguably in significant violation of the principle of habeas corpus (at least as I understand it). First, the burden of proof has been placed upon the offender to disprove the pattern that is alleged by prior convictions - remember, it is the Crown that is detaining the person. In doing this, we have removed the burden of proof from the Crown, inverting a basic principle of our justice system, and of tools like habeas corpus. It should (rightly) fall to the Crown (who represents the accusers) to justify why someone is to be detained; not the other way around.

One last aside - I find it very curious that in amending the legislation, the Conservative legislators have replaced the term "prosecution" in the existing text with "prosecutor". I am unsure of the significance of this particular change, but there are several paragraphs amended in that way, with no other changes.


Anonymous said...

So, we have essentially just sent the public the message that we believe some people are not capable of controlling their actions - that they are doomed to repeat patterns of behaviour with no hopes of rehabilitation. Oh, GREAT!

So why WOULD a person with two prior offences even TRY to change - they know that their pattern of action has proven beyond doubt that they are a long term offender, and as such they are not responsible for their actions... it's part of their innate personality, unable to change.

And here I erroneously believed that our system of justice was not intended simply to punish, but to rehabilitate. Lock 'em up! Throw away the key! Might as well bring on the death penalty, as the innate potential of people is beyond their control.

Grog said...

Lock 'em up! Throw away the key! Might as well bring on the death penalty, as the innate potential of people is beyond their control.

It's rather amusing when you consider that these same people argue up and down that sexual orientation is purely a matter of choice - of course, I'm being far too rational...

Anonymous said...

Grog brings up an interesting point, this rework of the criminal code presupposes that a persons behaviours are defined by previous pattern and therefore the person is going to repeat the same behaviour. This seems to mean that the CPoC feels that a person cannot control his behaviour yet at the same time they will argue that (as Grog has stated) "sexual orientation is purely a matter of choice". Interesting.....


crash said...

While your underlying point is completely valid, the example you used of the fellow killing the thief with a crowbar is slightly off base.

Under those circumstances, it is unlikely he would be convicted of manslaughter. Force is a valid defence in the protection of your person and home. If he could raise a reasonable doubt that he feared for his life, he would be acquitted. There are enough cases of this nature that even if an overzealous trial judge convicted him, it is highly likely that an appeal would be successful.

But like I said, this does not in any way invalidate your point. I too view this bill as troubling and actually quite unnecessary.

Grog said...


Yes, the example given is somewhat contrived. That's largely because I wanted to illustrate the problems that I see without digging up a specific "real" case.

The issue of using force in self-defence is a bit sticky sometimes. There is a concept of "proportionality" involved. For example, if you threaten me with a pen knife, I can't just pull out a gun and shoot you. (well, I can, but chances are I'd wind up doing time for manslaughter)