dangerous offernder laws in canada

Dangerous Offender Dangerous Offender Legislation in CanadaLegislation in Canada

AAPL ANNUAL MEETINGAAPL ANNUAL MEETINGMONTREAL OCTOBER 27, 2005MONTREAL OCTOBER 27, 2005

Daniel J. BrodskyDaniel J. [email protected]@rogers.com

Purpose of the Criminal LawPurpose of the Criminal Law

Provide prompt retribution for Provide prompt retribution for victims of crime victims of crime

To ‘protect society’ To ‘protect society’ from ‘dangerous’ from ‘dangerous’ individualsindividuals

Under the rule of lawUnder the rule of law

The Sentencing ProcessThe Sentencing Process

The Sentencing Process is probably the most visible The Sentencing Process is probably the most visible and controversial phase of the criminal justice system:and controversial phase of the criminal justice system:

Sentencing and the parole system are criticized by Sentencing and the parole system are criticized by many but understood by fewmany but understood by few

The sentencing decision is one of the most difficult The sentencing decision is one of the most difficult facing a judgefacing a judge

Just Deserts and the Just Deserts and the Principle of ProportionalityPrinciple of Proportionality

718.1 Fundamental Principle718.1 Fundamental PrincipleA sentence must be proportionate to the A sentence must be proportionate to the gravity of the offence and the degree of gravity of the offence and the degree of responsibility of the offenderresponsibility of the offender

A dangerous offender designation, which A dangerous offender designation, which allows for an indeterminate sentence, is a allows for an indeterminate sentence, is a notable exception to the general rule in notable exception to the general rule in sentencing that the particular sentence must sentencing that the particular sentence must fit the particular crimefit the particular crime

Preventive DetentionPreventive Detention

Preventive detention under Part XXIV of the Preventive detention under Part XXIV of the Criminal CodeCriminal Code is the most awesome sanction of is the most awesome sanction of punishment in Canadian Criminal law.punishment in Canadian Criminal law.

It is a dramatic departure from the general rule It is a dramatic departure from the general rule that each sentence must be proportionate to the that each sentence must be proportionate to the offence committedoffence committed

It is only applied to a very small group of It is only applied to a very small group of offenders whose violent conduct is substantially offenders whose violent conduct is substantially or pathologically intractableor pathologically intractable

It is only justified where the sentence actually It is only justified where the sentence actually serves its purpose of protecting the public, and serves its purpose of protecting the public, and where that purpose cannot be met with any other where that purpose cannot be met with any other sentencesentence

Legislative FrameworkLegislative Framework

Part XXIV of the Part XXIV of the Criminal CodeCriminal Code contains the contains the criteria and procedure for declaring a convicted criteria and procedure for declaring a convicted offender a Dangerous Offender (DO) or a Long-offender a Dangerous Offender (DO) or a Long-Term Offender (LTO) in Canada.Term Offender (LTO) in Canada.

The DO provisions in s. 753 of the The DO provisions in s. 753 of the CodeCode allow allow courts to impose an indeterminate sentence of courts to impose an indeterminate sentence of preventive detention.preventive detention.

Pursuant to s. 753.1 of the Pursuant to s. 753.1 of the Criminal CodeCriminal Code, if an , if an individual is found to be an LTO, the court is individual is found to be an LTO, the court is required to impose a sentence of not less than required to impose a sentence of not less than two years for the offence committed plus an order two years for the offence committed plus an order that the offender be supervised in the community that the offender be supervised in the community for a period not exceeding ten years. for a period not exceeding ten years.

Legislation (Pre-1997)Legislation (Pre-1997)

On February 3, 1997 the On February 3, 1997 the Code Code provided:provided:

753. Where, upon an application made under this Part following the 753. Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced conviction of a person for an offence but before the offender is sentenced therefore, it is established to the satisfaction of the court...therefore, it is established to the satisfaction of the court...(b) (b) that the offence for which the offender has been convicted is a that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his conduct in any of that expression in section 752 and the offender, by his conduct in any sexual matter including that involved in the commission of the offence for sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other impulses and a likelihood of his causing injury, pain or other evil to other persons through his failure in the future to control his sexual impulses,persons through his failure in the future to control his sexual impulses,The court may find the offender to be a dangerous offender and may The court may find the offender to be a dangerous offender and may thereafter impose a sentence of detention in a penitentiary for an thereafter impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender had been convicted.for the offence for which the offender had been convicted.

At that time, the At that time, the Criminal CodeCriminal Code did not contain any provision for did not contain any provision for designating someone a long-term offender. designating someone a long-term offender.

Legislation (Post-1997)Legislation (Post-1997)

Effective August 1, 1997, Part XXIV of the Effective August 1, 1997, Part XXIV of the Code Code was was substantially amended. substantially amended. FirstFirst, section 753.1 was added to the , section 753.1 was added to the CodeCode thereby creating long-term offender designation: thereby creating long-term offender designation:

753.1(1) The court may, on application made under this Part 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is 752.1(2), find an offender to be a long-term offender if it is satisfied that satisfied that

(a) it would be appropriate to impose a sentence of (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which imprisonment of two years or more for the offence for which he offender has been convicted;he offender has been convicted;(b) there is a substantial risk that the offender will reoffend; (b) there is a substantial risk that the offender will reoffend; andandthere is a reasonable possibility of eventual control of the risk there is a reasonable possibility of eventual control of the risk in the community.in the community.


(2) The court shall be satisfied that there is a substantial risk that the offender will (2) The court shall be satisfied that there is a substantial risk that the offender will re-offend if re-offend if (a) the offender has been convicted of [a designated offence], or has engaged in (a) the offender has been convicted of [a designated offence], or has engaged in serious conduct of a sexual nature in the commission of another offence of which serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; andthe offender has been convicted; and(b) the offender(b) the offender(i) has shown a pattern of repetitive behaviour, of which the offence for which he or (i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage causing death or injury to other persons or inflicting severe psychological damage on other persons, oron other persons, or(ii) by conduct in any sexual matter including that involved in the commission of the (ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.injury, pain or other evil to other persons in the future through similar offences.

(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a (3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two which sentence must be a minimum punishment of imprisonment for a term of two years; andyears; and(b) order the offender to be supervised in the community, for a period not (b) order the offender to be supervised in the community, for a period not exceeding ten years …exceeding ten years …


Second, the dangerous offender provisions Second, the dangerous offender provisions were amended to take away the trial were amended to take away the trial judge’s discretion to grant a judge’s discretion to grant a determinatedeterminate sentence to those who are found to be sentence to those who are found to be dangerous offenders. dangerous offenders.

Under the new provisions, the Court was Under the new provisions, the Court was required to impose an required to impose an indeterminateindeterminate sentence following a dangerous offender sentence following a dangerous offender designation. designation.


Third, subsection 753(5) was added to the Third, subsection 753(5) was added to the CodeCode which which provides as follows:provides as follows:

753(5) If the court does not find an offender to be a 753(5) If the court does not find an offender to be a dangerous offender,dangerous offender,

(a) the court may treat the application as an application to (a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that applies to the application and the court may either find that the offender is a long-term offender or hold another hearing the offender is a long-term offender or hold another hearing for that purpose; orfor that purpose; or(b) the court may impose sentence for the offence for which (b) the court may impose sentence for the offence for which the offender has been convicted. the offender has been convicted.


Section 753.3 of the Code provides Section 753.3 of the Code provides that breaching a long-term that breaching a long-term supervision order is an indictable supervision order is an indictable offence punishable by a term not offence punishable by a term not exceeding ten years imprisonment.exceeding ten years imprisonment.

The Animating ObjectivesThe Animating Objectives(LTO Legislation)(LTO Legislation)

The maximum ordinary duration of a probation order (three The maximum ordinary duration of a probation order (three years), is not sufficient for those offenders who can be years), is not sufficient for those offenders who can be managed in the community but who require an extended managed in the community but who require an extended period of supervision and treatment to be stabilizedperiod of supervision and treatment to be stabilized

Probation cannot be attached to sentences of two years or Probation cannot be attached to sentences of two years or more, leaving lacunae in two ways:more, leaving lacunae in two ways: More serious offenders, (i.e. those who receive penitentiary More serious offenders, (i.e. those who receive penitentiary

length sentences) cannot receive the support of extended length sentences) cannot receive the support of extended community supervision other than through parole as a result of community supervision other than through parole as a result of the imposition of a long custodial sentencethe imposition of a long custodial sentence

On dangerous offender applications, the court currently has On dangerous offender applications, the court currently has only the alternative of indefinite detention at one extreme, and only the alternative of indefinite detention at one extreme, and a definite sentence at the other. a definite sentence at the other.

ManagementManagement

Long term supervision should have as its objective the Long term supervision should have as its objective the enhanced safety of the public through targeting those enhanced safety of the public through targeting those offenders who could be effectively controlled in the offenders who could be effectively controlled in the community, based on the best scientific and clinical community, based on the best scientific and clinical expertise available. Supervision under such a scheme is expertise available. Supervision under such a scheme is focused on stabilizing the offender in the community, with focused on stabilizing the offender in the community, with particular attention to any precursors to re-offending that particular attention to any precursors to re-offending that are identified. The LTO Order is based on the assumption are identified. The LTO Order is based on the assumption that there are identifiable classes of offenders with offence that there are identifiable classes of offenders with offence cycles that have observable cues for whom the risk of re-cycles that have observable cues for whom the risk of re-offending may be managed in the community with offending may be managed in the community with appropriate, focused supervision and intervention, including appropriate, focused supervision and intervention, including treatmenttreatment

Jerimiah JohnsonJerimiah Johnson

On September 26, 2003, the Supreme Court of Canada On September 26, 2003, the Supreme Court of Canada released its decision in released its decision in R. v. Jerimiah Johnson.R. v. Jerimiah Johnson. The Supreme The Supreme Court underscored that:Court underscored that:

A sentencing judge retains the discretion A sentencing judge retains the discretion notnot to impose a to impose a dangerous offender designation even if an accused meets dangerous offender designation even if an accused meets all the statutory requirements because the sentence must all the statutory requirements because the sentence must be appropriate in the circumstance of the individual casebe appropriate in the circumstance of the individual case

Sentencing judges Sentencing judges mustmust consider treatment consider treatment andand management prospects prior to imposing a dangerous management prospects prior to imposing a dangerous offender designationoffender designation

It is only after concluding that either a traditional sentence It is only after concluding that either a traditional sentence or a long-term offender designation cannot manage the risk or a long-term offender designation cannot manage the risk posed that the sentencing judge can designate someone a posed that the sentencing judge can designate someone a dangerous offender dangerous offender

Sentence AdministrationSentence Administration

The failure of the government to The failure of the government to provide reasonable treatment and provide reasonable treatment and management infrastructure cannot management infrastructure cannot result in the offender being result in the offender being designated as a dangerous offender designated as a dangerous offender because a sentencing decision must because a sentencing decision must presume the availability of presume the availability of reasonable resources and reasonable resources and infrastructure to superviseinfrastructure to supervise

Public PressurePublic Pressure

Brutal high profile crimes are Brutal high profile crimes are sensationalized by the media and sensationalized by the media and cause panic in the communitycause panic in the community

Fear and a sense of outrage places Fear and a sense of outrage places pressure on all actors in the criminal pressure on all actors in the criminal justice system to restore order; to justice system to restore order; to apprehend and punish offenders both apprehend and punish offenders both quickly and severelyquickly and severely

THE ADVERSARIAL SYSTEMTHE ADVERSARIAL SYSTEM

By definition there is both a winner and a By definition there is both a winner and a loser in an adversarial criminal justice loser in an adversarial criminal justice system system

The police build a case against the defendant The police build a case against the defendant that must be strong enough to secure a DO that must be strong enough to secure a DO Designation or they will be the loserDesignation or they will be the loser

Prosecutors play a dual role – and winning is Prosecutors play a dual role – and winning is oneone

Defence counsel are under-resourced or Defence counsel are under-resourced or under committedunder committed

The Expert’s ResponsibilityThe Expert’s Responsibility

United States Supreme Court Justice United States Supreme Court Justice Stephen BreyerStephen Breyer noted the pervasive use noted the pervasive use of expert witnesses in modern litigation: of expert witnesses in modern litigation:

"Scientific issues permeate the law. "Scientific issues permeate the law. Criminal courts consider the scientific Criminal courts consider the scientific validity of . . . expert predictions of validity of . . . expert predictions of defendants' 'future dangerousness,' which defendants' 'future dangerousness,' which can lead courts or juries to authorize or can lead courts or juries to authorize or withhold the punishment of death" withhold the punishment of death"

Role in Adversary Role in Adversary ProceedingsProceedings

In adversary proceedings the lawyer's In adversary proceedings the lawyer's function as advocate is openly and function as advocate is openly and necessarily partisannecessarily partisan

4.01 (1)4.01 (1) When acting as an advocate, a When acting as an advocate, a lawyer shall represent the client lawyer shall represent the client resolutely and honorably within the resolutely and honorably within the limits of the law while treating the limits of the law while treating the tribunal with candor, fairness, courtesy, tribunal with candor, fairness, courtesy, and respectand respect

Over Value the ExpertOver Value the Expert

The adversary system is probably the The adversary system is probably the best tool we have for detecting best tool we have for detecting overconfidence, self-deception, and overconfidence, self-deception, and dishonestydishonesty

Ironically, it is itself responsible for one Ironically, it is itself responsible for one common defect, namely, the expert's common defect, namely, the expert's temptation to identify overmuch with the temptation to identify overmuch with the cause of his 'side’cause of his 'side’

expert witnesses can be "co-opted"expert witnesses can be "co-opted"

So – what is the problem with So – what is the problem with that?that?

Science is becoming more complexScience is becoming more complex Witnesses remain as fallible as everWitnesses remain as fallible as ever Lawyers lack the tools to evaluate and Lawyers lack the tools to evaluate and

challengechallenge Opinion (may) have a weight and Opinion (may) have a weight and

authority that it may not deserveauthority that it may not deserve The language of medicine and the law are The language of medicine and the law are

seldom the sameseldom the same Courts lack the skills to decideCourts lack the skills to decide

OPINION EVIDENCEOPINION EVIDENCE

The role of opinion evidence in fact determination is a The role of opinion evidence in fact determination is a controversial one. controversial one.

Some of the issues relate to both lay and expert opinion, such as Some of the issues relate to both lay and expert opinion, such as the danger of usurping the fact-finding function and the danger the danger of usurping the fact-finding function and the danger that an opinion will be given too much weight or will be accepted that an opinion will be given too much weight or will be accepted without question. without question.

Issues relating specifically to expert opinion evidence include the Issues relating specifically to expert opinion evidence include the risk that expert opinion will be over- or undervalued. risk that expert opinion will be over- or undervalued.

The allure of scientific evidence may overwhelm the trier of fact The allure of scientific evidence may overwhelm the trier of fact or triers may be irrationally skeptical of social science evidence. or triers may be irrationally skeptical of social science evidence.

There is debate about how to deal with novel theories. When is a There is debate about how to deal with novel theories. When is a theory sufficiently reliable and valid to be considered in the fact theory sufficiently reliable and valid to be considered in the fact determination process? determination process?

There is also concern that the costs of hiring an expert witness, There is also concern that the costs of hiring an expert witness, may limit access to justice.may limit access to justice.

Expert opinion that is biased or partisan may divert the search Expert opinion that is biased or partisan may divert the search for truth.for truth.

EXPERT OPINIONEXPERT OPINION

The rules on expert opinion are unstable and there is an ongoing debate The rules on expert opinion are unstable and there is an ongoing debate about both the role of expert witnesses in fact determination and the about both the role of expert witnesses in fact determination and the appropriate subjects of expertise. appropriate subjects of expertise.

The leading case on the admissibility of expert opinion is The leading case on the admissibility of expert opinion is R v. Mohan.R v. Mohan. The accused was charged with sexual assault. The accused was charged with sexual assault. The defence sought to call a psychiatrist who would testify that the The defence sought to call a psychiatrist who would testify that the

psychological profile of the accused did not fit the psychological profile of psychological profile of the accused did not fit the psychological profile of the perpetrator of the offence. the perpetrator of the offence.

The trial judge held that the evidence was inadmissible and the accused The trial judge held that the evidence was inadmissible and the accused was convicted. was convicted.

The Court of Appeal allowed the accused’s appeal, quashed the The Court of Appeal allowed the accused’s appeal, quashed the convictions, and ordered a new trial upon finding that the rejected convictions, and ordered a new trial upon finding that the rejected evidence was admissible. evidence was admissible.

The Supreme Court allowed the appeal of the Crown, holding that the The Supreme Court allowed the appeal of the Crown, holding that the expert evidence was inadmissible on the basis that the expert’s group expert evidence was inadmissible on the basis that the expert’s group profiles were not sufficiently reliable. In the course of the decision, the profiles were not sufficiently reliable. In the course of the decision, the court addressed more generally the rule regulating the admissibility of court addressed more generally the rule regulating the admissibility of expert opinion.expert opinion.

R v. MohanR v. Mohan

Justice Sopinka (Supreme Court of Justice Sopinka (Supreme Court of Canada): Admission of expert evidence Canada): Admission of expert evidence depends on the application of the depends on the application of the following criteria:following criteria:

(a) relevance(a) relevance (b) necessity in assisting the trier of fact(b) necessity in assisting the trier of fact (c) the absence of any exclusionary rule(c) the absence of any exclusionary rule (d) a properly qualified expert(d) a properly qualified expert

Social Science ResearchSocial Science Research

Social science and actuarial data can provide Social science and actuarial data can provide information on social facts; i.e., facts that are information on social facts; i.e., facts that are descriptive or causal propositions about persons or descriptive or causal propositions about persons or things beyond the personal knowledge of the parties things beyond the personal knowledge of the parties or any single witnessor any single witness

Social facts are a necessary foundation for an Social facts are a necessary foundation for an understanding of the operation and social effects of understanding of the operation and social effects of a legal rulea legal rule

Social science data encompasses both analyses of Social science data encompasses both analyses of large databases and clinical observations. It includes large databases and clinical observations. It includes both descriptive information such as the statistics both descriptive information such as the statistics published by the Canadian Centre for Justice published by the Canadian Centre for Justice Statistics and explanatory studiesStatistics and explanatory studies

Misleading OpinionsMisleading Opinions

Even honest witnesses who are trying to be Even honest witnesses who are trying to be objective may not be asked the right objective may not be asked the right questions and may have their testimony questions and may have their testimony filtered or contorted by the advocatefiltered or contorted by the advocate

The expert witness has a duty to educate The expert witness has a duty to educate the trier of fact the trier of fact

It would be a miscarriage of justice for an It would be a miscarriage of justice for an individual to be wrongly declared a individual to be wrongly declared a dangerous offender and wrongly sentenced dangerous offender and wrongly sentenced to a period of indeterminate incarceration. to a period of indeterminate incarceration.

AppealsAppeals To the Provincial Court of AppealTo the Provincial Court of Appeal Review by the Minister Of Justice (S. 696 Review by the Minister Of Justice (S. 696

Of theOf the Code Code))

This process is slow and the appellant This process is slow and the appellant convict is rarely successfulconvict is rarely successful