Once again I could assure the honourable member that we have taken a close look at the potential charter attacks on this provision. I would suggest that yes, it is correct that ordinarily the burden is on the crown to prove the criteria in proposed subsection 753(1), as you laid out. However, again we are suggesting that it is viable to provide to the crown the shift in burden to the defendant because in the first case, this is a narrow list of offences. This is 12 of the most serious offences that there are in terms of violent and sexual offences.
Second, these offences are in fact the triggering offences for most successful dangerous offender applications. Therefore, there is a sufficient narrowing nexus toward the finding of dangerous offender when you've had three of these convictions, all of which have received a significantly serious sentence of two years or more. As such, it's reasonable to impose the burden of proof back onto the defendant, because what we're suggesting is that in this particular situation--which will not be the majority of cases before the courts for dangerous offender proceedings--the offender has shown by his own past conduct that he meets these prerequisites.
Finally, I would suggest that again, consistent with the decision in R. v. Lyons, there is still considerable procedural protection provided for in the dangerous offender protections. Primarily you can find these right from the beginning in terms of the discretion of the court not to allow the psychiatric assessment to go forward if there's no reasonable likelihood of success. The Attorney General's consent is still required for this instance. Once the presumption is in place, the offender has full opportunity to rebut on balance, in which case the burden in the very real sense shifts back to the crown.
Finally, we have the Johnson test whereby the court, regardless of the finding on dangerous offender, has to consider whether or not the offender can be managed under a lesser sentence. Again, as you already suggested, and I agreed, the defendant has the full right to silence. He does not have to put himself on the stand. He does not have to bring forward further evidence.