Mr. Speaker, prior to the Johnson case in the Supreme Court of Canada, the onus was in fact lower on the Crown to try to establish this designation. The Johnson case changed that and required the onus on the Crown, in respect of this sentencing provision, to prove beyond a reasonable doubt that this was the only appropriate disposition. That is virtually an insurmountable onus to meet in this context.
What we are saying is where an individual has been convicted of two prior serious offences, where he or she has received at least a penitentiary term on each of them, on the third one it is clear that the individual has established a pattern of conduct. The individual has been convicted now for the third time of a very serious offence. Therefore, it is incumbent upon that individual, not the Crown, to demonstrate that.
With respect to the other dangerous offenders' applications, they do not have to wait until the third conviction. They can proceed even if the individual has never been convicted of a particular offence. For example, let us say an individual had raped five women on separate occasions, but had not been convicted. They can still proceed on a dangerous offender application even if there has been no prior conviction, but in that situation the reverse onus does not kick in. We are lowering the onus to a balance of probabilities once the individual has been convicted of guilt beyond a reasonable doubt.
We are not fooling with any of the constitutional guarantees in this respect, but we recognize that once the conviction takes place and then the sentencing phase takes over, there are different legal principles that are appropriately applied in an appropriate constitutional context.