I think a Conservative government could achieve the same end by making the criteria for dangerous offender more robust. They can require that multiple murders create a prima facie case that mandates continuous incarceration.
These are the current criteria:
The court
may declare an offender a “dangerous offender” where:
- the offender is convicted of a serious personal injury offender and constitutes an ongoing threat on the basis of:
- a “repetitive behavior” showing a failure of restraint and “likelihood” of causing injury or worse
- a “pattern of persistent aggressive behaviour” that shows “a substantial degree of indifference” to the “reasonably foreseeable consequences” of his behaviour; or
- in the “brutal nature” of the offence, the offender is not likely to be inhibited by the normal standards of behavioral constraints” or
- the offence is a serous personal injury offence and “has shown a failure to control his or her sexual impulses and a likelihood of causing injury”.
It should be relatively easy to argue that a multiple murder has already met all the criteria.
I suspect that the Court would view turning 'may' into 'shall' as cruel and unusual, just by different means. Generally speaking, the Court has taken the view that arbitrary and mandatory sentencing provisions, in and of themselves, removes or limits the a sentencing court from making a subjective analysis of the individual facts of the case.
It would be interesting to see if somehow creating a brand new stand alone offence of 'multiple homicide' or 'aggravated homicide' or something might have more success that trying to approach the matter from the sentencing or procedure angle. Dunno. The one advantage of the DO provision is that it more broadly based towards crimes against the person, and not a specific offence.
I wonder if the leglislative could simply define cruel in the context of life imprisonment.
For example I argue life in prison is crueler than simply putting someone to death. I also argue murdering someone (especially depending on the method) is crueler than life in prison.
Ultimately the courts are upholding the constitution, as written by the legislative. I see no reason that the legislative can’t define what it means by its own laws.
I would argue that Constitution is more that just legislation, it is foundational legislation. It wasn't created by Parliament or a legislature, it was created by all of them, and it would take (almost) all of them to change it. Constitutions and foundational documents are hard to change - on purpose. A Constitution that is at the whim of any given Parliament or legislature is too vulnerable to politics of the day. It might seem clearer when it is for what we see as a good thing, like longer sentences for a heinous crime, but what if they do it for a not-so-good thing? A majority government has a lot of legislative power; maybe one would like a 10-year mandate.
Who does "the court" answer to? It seems that they keep moving the goal posts every decade or so. At first it was the death penalty was cruel, now it is life in prison in cruel and unusual and whilst they are doing that the medical profession is advocating for a humane system for ending life for those who no longer want it. So on one hand we have a group of unelected bureaucrats imposing their ideas on human rights to keep a bunch of blackguards that the rest of us would like to see exterminated and on the other side another group, are trying to make it easier to terminate the lives of those who in many cases simply have a lack of external (family) support; including finances. Does no one else see the irony in that?
I would surely like to hear an alternative solution. No system of humans passing judgement on other humans is going to be perfect, and every pyramid needs a top. Would you advocate elected SC judges? Not even the election-happy US does that.
I suppose we could craft a system where Parliament is supreme, and end up with populist 'three strikes' laws where people languish in prison for the damnedest things like they have in some parts of the US, but voters were satisfied. The courts, theoretically, are to protect society from the tyranny of power.
The goal posts get moved because society evolves. We don't have debtors prison, criminal offences for homosexuality or lengthy jail time for stealing a loaf of bread anymore.
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