--------------------------------------------------------------------------------

No California 'three-strikes' debacle here: Tough new Tory law allows courts more discretion than did old Liberal approach

--------------------------------------------------------------------------------

One Canadian headline, over a story about the federal government's new repeat violent offender law, claimed "No more second chances."

Actually, what the Conservatives are proposing is no more fourth chances.

Even if the proposed law passes, when you are convicted of your first violent crime or serious sexual assault, the current, lenient criminal penalties will apply. You will be given a second chance.

When you are convicted a second time for armed robbery, aggravated assault, drug trafficking, rape, or any of seven other major, violent crimes identified by the Tories, today's lax rules will still apply. You will still get a third chance.

The typical two-time violent offender is currently released after just under four years in prison. That won't change. But if you are convicted a third time of one of the crimes on the list of 11 the government has compiled, well, sorry, you may get a fourth chance. May not.

A judge may still decide to give you your fourth chance. What the government has proposed is that the fourth chance no longer come automatically, as it does now. Now, you can continue to commit serious, violent offences your whole life, and Canada's courts are pretty much obliged to keep granting you unlimited new chances. A Crown prosecutor might succeed in convincing a judge to stop issuing you chances and designate you a dangerous offender after a third or fourth major conviction. But if the prosecutor is not persuasive enough, you'll be back out on the street in three to five years, maybe less, after each new offence.

The Tories plan is not an American-style "three-strikes" law. In California, which has the most famous three-strikes statute, if you are convicted of two violent felonies, you will go to jail for life on conviction of a third felony, violent or not. That has led to such absurdities as two-strike felons being sentenced to life in prison for boosting the pizza delivery guy or shoplifting a child's CD. Nothing even approaching that is being proposed for Canada.

What the Conservatives want to see is persons convicted of their third violent crime or serious sexual assault automatically designated "dangerous offenders," with no chance for parole for seven years. Even then, if the accused can convince the sentencing judge he's not likely to be dangerous a fourth time upon release, the judge would retain the discretion not to label him a dangerous offender.

What will change is the burden of proof. Now, even after the third or fourth or fifth violent offence, it remains up to Crown prosecutors to prove you should be called a dangerous offender. Under the Tories' new law, after the third conviction if would be up to the accused to prove he doesn't deserve that label.

That sounds fair.

The other change would be a new minimum sentence. After a third offence, if you were designated a dangerous offender, you would have to serve a minimum of seven years before being consider for release. That sounds fair, too. We are not talking about kids who got caught up in a couple of petty crimes, or adults who have broken into a few cars or houses. This new law would apply only to the hardest of hardened criminals.

The dangerous offender label already exists in our justice system. Any convict so labelled is sent to jail indefinitely and cannot be released until he convinces a court he is no threat to reoffend.

In theory, you can be designated a dangerous offender after committing a single, serious crime, provided the Crown can convince your sentencing judge that you pose a great risk to the public.

Frankly, I don't like the dangerous offender rule because of the indefinite sentence that goes with it. If someone is so dangerous, send him away for a long time, but let him know from the outset how long his sentence will be. An indefinite sentence is like moving the goal posts in the middle of the game -- and continuing to move them.

It is one of those silly Liberal dichotomies: They recognized a decade or so ago the need to get tough with some offenders, but they didn't want to be seen to be too tough. Besides, they remained steadfast in their belief that every boy is a good boy and capable of rehabilitation.

So they wanted to send some away for a long time, but not too long, in case they thought you'd reformed, in which case they could let you out early, which is really what they wanted.

But the current dangerous offenders rules are all this minority government has to work with.

Several critics of the proposal have charged it is un-Canadian. "It flies right in the face of Canadian criminal justice," said Louise Botham, president of the Ontario Criminal Lawyers Association. Maybe. Maybe it won't survive a charter challenge in the courts, either.

But it seems to me to be a very Canadian balance between the rights of the accused and the public's right to be safeguarded from violent criminals.

lgunter@shaw.ca