Roland Hill challenged the constitutionality of Section 753(1.1) of the Criminal Code, arguing that it violated the presumption of innocence and principles of fundamental justice insofar as shifted the burden of proof onto convicted offenders to demonstrate that they should not be prosecuted as “dangerous offenders.”
Mr. Hill had two previous convictions (for sexual assault in 2000 and assault causing bodily harm in 2004) before pleading guilty to aggravated sexual assault in 2010. As a result of this third conviction, Section 753(1.1) placed the onus on Mr. Hill to prove that he was not a “dangerous offender,” who should remain incarcerated for an “indeterminate” period of time.
The defence argued, and the court agreed, that the presumption in favour of the accused applies not just during a criminal trial, but also during sentencing proceedings. A presumption that a given accused is a “dangerous offender,” worthy of indefinitely incarceration, is therefore in violation of the principles of fundamental justice, as follows:
Section 753(1.1) creates a new rule allocating the burden of proof to an offender. Where the Crown proves the basic facts set out in s. 753(1.1), the offender must prove on a balance of probabilities that he is not a dangerous offender within the meaning of s. 753(1)(a) or (b). Section 753(1.1) is therefore a “reverse onus provision” as found in R. v. Oakes, and reverse onus provisions are prima facie in violation of the Charter. This is because they operate to permit a finding adverse to the liberty interest of the offender to be made “despite the existence of a reasonable doubt” (R. v. Oakes, at p. 132). Consider, for example, a case where the Crown proves the basic facts required for by s. 753(1.1) beyond a reasonable doubt, and where the accused, in response, presented evidence that did not disprove on a balance of probabilities that the required criteria of a dangerous offender finding under s. 753(1) were met. Even if that offender had managed to present sufficient evidence to raise a reasonable doubt about whether he was a dangerous offender within the meaning of s. 753(1), a Court would still be obliged to find that he was a dangerous offender pursuant to s. 753(1.1). Section 753(1.1) is therefore in prima facie violation of the principles of fundamental justice as it purports to require a dangerous offender finding to be made, even in the face of a reasonable doubt.
The court found that the Crown’s argument was based primarily on the need for administrative efficiency in the sentencing process, and that this objective was not sufficient to justify a presumption in favour of indefinite detention, “the most severe sentence in Canadian criminal law.” Section 753(1.1) was therefore not a “reasonable limit” on Charter rights under Section 1.
Decided by the Ontario Superior Court of Justice on September 13, 2012.
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