In today's news, Harper's blathering on about their "3 Strikes" approach to declaring people a "dangerous offender".
Laws that tally up an offender's past worry me, but this particular one is really beginning to scare me as it looks like a fairly serious reversal of rights and obligations in our justice system.
Under the proposed legislation, the person would automatically be considered a dangerous offender and would have to prove the designation should not apply.
Harper said if the person cannot prove this, he or she will be put in prison for an indeterminate period of time and won't be eligible for parole for seven years.
This is very worrisome for several reasons. First of all, it is next to impossible to "prove a negative". Anyone with some basic grounding in formal logic and argument will recognize that it is far easier to demonstrate that "there is a reasonable expectation that X is the case" than it is to demonstrate that "X is NOT the case".
The second aspect of this that bothers me greatly is the reversal of obligations. We are creating a scenario here. The previous legal standard was eminently consistent with the notion that the Crown as the accuser is obliged to show before the court why someone should be considered a dangerous offender. Now we find a situation where the accused must demonstrate the opposite.
There are a few reasons why this is bad news. First, it is a clear violation of the presumption of innocence. Yes, the person has been convicted of crimes, but it seems to me that the onus should fall upon the state to demonstrate that someone is in fact a dangerous offender, not upon the offender to demonstrate that they are not. In essence, you are playing out the very scenario that the movie "Minority Report" played with - the notion of stopping a crime before it is committed.
I'm not saying that the designation of dangerous offender is a bad idea, far from it, but rather I am objecting to it being applied automatically as a matter of statute. I would feel much more at ease with the statue obliging the Crown to make application for dangerous offender designation following a third offense. (In other words, retain the current basic structure, but oblige the crown to make the application instead of allowing it to be a matter of discretion).
This is significantly different in how it reflects the core principles of our justice system in that it still requires the Crown to demonstrate before the court why such a designation is appropriate on a case by case basis.
The second, and more subtle aspect of this legislation, is the implicit attack it contains upon citizen rights and freedoms as guaranteed in the Charter. In automatically designating someone a "dangerous offender", this law is in essence filing a pre-emptive accusation against someone, and then demanding that they prove that they will not do what they are being accused of. This is worrisome because it is a subtle attack on the guarantees in Sections 7 - 14 of the Charter, and in particular sections 10 and 11, as it gives the government blanket rights of detention without accountability to either the accused or the public.
Again, one may argue that an offender should be obliged to demonstrate that they have taken steps to minimize or manage the risk that they pose to society. Of that I have no particular difficulty, however, such obligations are far more reasonably bound to the rules around a prisoner's release. (e.g. Traceable commitments to attend group therapy or other appropriate constructs) Post incarceration supervision can reasonably be applied beyond the term of an offenders' sentence if there is reason to suspect that further similar offenses are likely. (Again, as with the 'dangerous offender' designation, I still feel that it is the obligation of the Crown to demonstrate why this is necessary, not the accused.)
When the legislation is tabled in the House of Commons, I'll take a closer look then. Harper's words today suggest a law that is potentially quite harmful to the rights of otherwise law abiding citizens.
2 comments:
This proposed law strikes me as being very akin to the way "justice" was in England during the 16th century. Then you were tried by a panel of your peers who knew in advance that you were guilty anyway; you had no lawyer to advance your cause; thus you were declared guilty after a brief "trial". There was no appeal from this decision,(why would you want to appeal, as you were guilty, period). The punishment was carried out, usually beheading, the next day. Back to the dark ages.
Essentially Harper is setting things up to allow prosecution based on assertion with the onus placed on the defender to produce _proof_ that the assertion is false.
As an assertion can be made without any proof whatsoever it becomes just about impossible to form a defence against it.
Harper seems to be following in the footsteps of the Rethuglicans, where they have now passed into law, the ability for hear-say evidence to be used against people detained under suspicion of terrorist activity. As hear-say evidence can often be unsupported the accused has no way of refuting the _evidence_.
SB
(For more information on what is driving Harpers real agenda read the article in the October 2006 edition of The Walrus entitled "Harper and The TheoCons")
Post a Comment