Thank you.
There are a couple of glaring difficulties in the legislation, as I see it right now, as well as concerns that we have on behalf of our organization. To echo Mr. Rady's comments, including those on resources, the constitutionality of the reversing of the onus is another concern.
A further difficulty with reversing the onus is that you're not simply reversing the onus onto the accused because there have been three predicate offences. You're raising the bar that the convicted person has to meet. Right now under the Criminal Code of Canada, any kind of aggravating feature of a sentence has to be proven beyond a reasonable doubt by the crown. What you're going to be doing now in the most aggravating circumstance is shifting the burden to the convicted person, but not just saying to them, “Because of your three predicate offences, we're going to have a prima facie case that the crown has met its burden”. We're not just doing that. We're not saying to the accused, “Now it's your turn, if you wish, to try to raise a reasonable doubt as to the dangerousness”. We are now saying to that convicted person, “You have to go beyond raising a reasonable doubt and prove on a balance of probabilities the negative--that you're not dangerous”. In many cases that will actually be an impossible test to meet. Philosophically, proving a negative is extremely difficult, but in a situation like this, where you're sapping the resources and putting, as Mr. Rady has alluded to, the onus on the defence and on legal aid plans to provide those resources, you're making it a next-to-impossible test.
Another concern that we have is that the net is being cast far too wide. For example, if you look at some of the primary designated offences, some that leap to mind--assault causing bodily harm, assault with a weapon, and robbery--are very widely defined offences. Certainly they capture within them very dangerous offences committed by very dangerous people, but they also capture within them offences that aren't overly dangerous per se when you get down to the basic factual underpinnings of the offence. What you have, practically speaking, is a situation where sentences in this country do not decrease, so if an individual has received a sentence of two years for an assault causing bodily harm or for a robbery, the next time they are before the court on a similar type of sentence they're not going to receive a lesser sentence; they're going to receive one on par or greate. So even though the factual underpinnings of the new sentence have not become of greater concern, the individual is looking at a sentence within that frame or worse, and therefore is going to be on a slippery slope to being caught within these three predicate offences. That is of concern.
Another concern arises when we get to the presumption of a dangerous offender, under proposed subsection 753(1.1). You are then in a situation where the court is being ordered to make the finding of dangerousness and impose the most severe sentence--an indeterminate sentence--unless the accused can show why or how they can be managed with a less onerous sentence. But there's no standard prescribed within the section, nor is it stated who has the burden within that framework. So you have made the finding of dangerousness as mandated by the changing of the “may”--the permissive--to the “shall”, which is part of Bill C-2 as well, and then you are not offering any guidance as to who has the burden of professing what should be the appropriate sentence once the finding of dangerousness has been made and on what burden. You're not only placing the burden on the accused earlier, but you are leaving it open and vague in the secondary stage regarding what finding needs to be made.
The concern goes further when you get into concerns such as the right to silence, which I know has been discussed at this committee on prior occasions. There have been answers offered such as the example of the Ontario Court of Appeal's R. v. Grayer decision, which shows that while clinging to the right to silence is something that an individual subject to a dangerous offender hearing can do, that individual does so at their own peril.
That's all well and good to say in the confines of a crown-must-prove dangerous offender, but once you reverse the onus onto the accused, you are mandating that if they in any way, shape, or form assist the fact-finder in determining what the appropriate sentence is, they give up their right to silence. That is a further concern.