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Sex offender Peter Whitmore leaves court in Regina in 2007 after pleading guilty to abducting and sexually assaulting a Saskatchewan boy and a Manitoba teenager. (TROY FLEECE/CP)
Sex offender Peter Whitmore leaves court in Regina in 2007 after pleading guilty to abducting and sexually assaulting a Saskatchewan boy and a Manitoba teenager. (TROY FLEECE/CP)

Globe editorial

The three-strikes law for sexual predators should not be struck down Add to ...

It is one thing for a criminal law made by Parliament to be struck down by a judge. It is another thing for a psychiatrist to do it.

Canada’s three-strikes-you’re-out law, intended largely for sexual predators, was struck down on the advice of Philip Klassen, a forensic psychiatrist. He testified that, based only on a violent sex criminal’s criminal record, he couldn’t tell whether he was a dangerous offender or not. Mr. Justice Alan Bryant of the Ontario Superior Court of Justice was so impressed by the “recognized expert” that he ruled the three-strikes law unconstitutional.

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The law is fair and not very fearsome. It requires not just that three violent sex assaults (or other serious violent crimes) be committed, but that the offender has been sentenced to federal time – two years or more – on the first two. In practice, it’s difficult to get federal time. A predator such as Peter Whitmore received just 16 months in a provincial reformatory after he abducted an 11-year-old Ontario boy for 24 hours and sexually abused him in 1994. It wouldn’t count toward the three-strikes law. His next set of similar offences involving multiple children brought him just five years in jail – strike one. Had the three-strikes law been around when Mr. Whitmore led the entire country on a search for the two Prairie boys he kidnapped and sexually assaulted in 2007, it wouldn’t have applied to him.

The Conservative government passed the three-strikes law in 2008 because predators like Mr. Whitmore have slipped through cracks in the justice system to prey on communities. The government’s view is that sex predators are difficult to rehabilitate, and that the proof of that is to be found not in the statements of supposed experts but in the offender’s own actions.It’s hard to see how that’s an attack on basic rights.

In the present case, Roland Hill had a long criminal record, including other sex assaults. In the latest one, he attacked a 21-year-old woman on her way to work in the morning, choking, punching and raping her. But Canada’s three-strikes law doesn’t mean he would be automatically deemed a dangerous offender, just that he bears the burden of showing why he shouldn’t be treated as one. And the key wouldn’t be thrown away – a parole hearing is held after seven years, and every two years thereafter.

It’s irrelevant whether a “recognized expert” believes three violent sex or other offences are not, in themselves, proof of dangerousness. Parliament doesn’t want to take that chance, and it should have the authority to say so.

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