BRIEF TO THE
STANDING COMMITTEE ON JUSTICE, HUMAN RIGHTS
HOUSE OF COMMONS
39th Parliament, 1st Session
On Amendments to the Criminal Code of Canada
(Dangerous Offenders and Recognizance to keep the peace)
Presented by the Canadian Criminal Justice Association
Background of Canadian Criminal Justice Association
The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-27, an Act to Amend the Criminal Code of Canada (dangerous offenders and recognizance to keep the peace). Indeed, our Association has grave concerns regarding C-27. We outline them here and look forward to your questions and comments.
The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 800 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the “Canadian Congress on Criminal Justice” every two years.
History of Dangerous Offender Legislation
Canada first introduced legislation to deal with “dangerous” offenders in 1947. Called The Habitual Offender Act, the legislation was designed to incapacitate offenders with lengthy criminal records by keeping them in prison and away from the general public (Jakimeic et.al.,1986). In 1948 a second piece of legislation, known as the Sexual Psychopath Act, was passed to ensure that dangerous sexual offenders would be identified and treated by mental health professionals (Petrunik, 1994). Once convicted of a designated sexual offence, the offender would be assessed by two psychiatrists, who would determine if the individual was “dangerous”. A finding of sexual psychopathy would be accompanied by an indeterminate sentence, to be reviewed by the justice minister every three years for parole eligibility.
The term “sexual psychopath” was very vague and not well defined in the legislation, lending uncertainty to the designation and making it difficult to meet the legal standard of proof – beyond a reasonable doubt (McRuer, 1958, cited in Petrunik, 1994). In 1960, the Dangerous Sexual Offender Act replaced the 1948 legislation and set out specific criteria for determining dangerousness including the offender’s criminal record and the circumstances of the current offence. Only one conviction for a designated sexual offence was necessary for a finding of dangerousness, and an application for a dangerousness hearing could be made up to three months post-release. A finding of dangerousness resulted in an indeterminate sentence that would be reviewed every three years.
In 1969 the report of the Canadian Committee on Corrections (Ouimet Report) found that the Habitual Offender and Dangerous Sexual Offender [statutes were] being applied erratically and ineffectively across the country. The Habitual Offender provisions were often used to indefinitely incarcerate repeat nuisance and property offenders and were not being reserved for those most dangerous to the public (Webster & Dickens, 1983) [while] the Dangerous Sexual Offender provisions were [often being] applied to those who had committed sexual offences but were not violent. On the other hand, some serious violent offenders who could be considered to be ‘dangerous’ on the basis of a demonstrated proclivity to commit a variety of serious personal injury offences were not being captured under either provision. The Ouimet Report did advise the continued use of clinical assessment and treatment for dangerous offenders, while the Law Commission of Canada disagreed and recommended against the use of indeterminate sentences and clinical assessments of dangerousness.
In 1977 new legislation was enacted, repealing both the Habitual Offender and Dangerous Sexual Offender Acts. The new Act was designed to be applicable to both sexual offenders and those who had committed violent acts of a non-sexual nature and provided for determinate or indeterminate sentences and parole eligibility after three years (Webster & Dickens, 1983). The determination of dangerousness was to be made following conviction but prior to sentencing. In 1988, legislation was put in place to allow the National Parole Board to detain offenders (who had not been designated as dangerous) past statutory release to the end of their sentence in the interests of public safety, if they felt that the individual was likely to re-offend in a violent or sexual manner.
In 1997, Bill C-55 was enacted, making significant changes to strengthen measures for dealing with the most serious offenders. The Act required the testimony of only one psychiatrist (rather than two) at a dangerousness hearing, lengthened the waiting period for parole eligibility to seven (rather than three) years, and rescinded the option of determinate sentences for offenders who had been declared dangerous. The Act also created a second category of Long Term Offender, who would be subject to a determinate sentence followed by a post-release probationary period of up to ten years. Additionally, the Act extended the period in which application for a finding of dangerous may be made up to six month following the time of sentencing. Finally, of note, the 1997 legislation created a new category of judicial restraint (810.2) aimed at monitoring persons who are likely to commit a personal injury offence.
The 1997 legislation embodies the current provisions for addressing serious violent and sexual offenders. Currently, any person convicted of a serious personal injury offence, but not yet sentenced who constitutes a danger to the life, safety, or mental/physical well-being of others may be subject to a dangerous offender application by the crown. The offence committed must be a violent offence that warrants a minimum 10 year sentence or a sexual offence as defined in sections 271 (sexual assault), 272 (sexual assault with a weapon or causing bodily harm) and 273 (aggravated sexual assault). The determination of dangerousness is to be based on evidence establishing: a pattern of unrestrained behaviour and/or, a pattern of persistent aggressive behaviour and/or, any behaviour that is of such a brutal nature that it can be inferred that the offender’s future behaviour is unlikely to be inhibited by normal restraint (Section 753 (1)(a). Behaviour that exhibits a failure to control sexual impulses that leads to harm to others is also grounds for a finding of dangerousness. If an individual convicted of an offence subject to a minimum two year sentence meets the above criteria for dangerousness but it is determined that that the risk he poses to the public can be managed through intensive monitoring and various probation conditions including participation in treatment he can be found to be a Long-Term offender. In this case, he will receive a determinate sentence of two years or more plus up to ten years of community supervision.
Current Proposal (C-27):
Bill C-27 proposes to broaden the application of the dangerous offender legislation, most notably by reducing the requirements for a finding of dangerousness by allowing an application in cases of offences which would be subject to a sentence of only two years or more (rather than ten years). This significantly increases the number of offences and persons possibly subject to a finding of dangerousness. Of particular concern is the inclusion in the list of designated offences such broad offence categories as assault, assaulting a peace officer, breaking and entering and the inclusion of repealed offence categories including ‘sexual intercourse with a female between the ages of fourteen and sixteen’. Including these very broad offence categories with a minimum sentence restriction of only two years has the potential to create a situation in which an individual who has engaged in some relatively minor offences may be the subject of a dangerous offender application. Given that the dangerous offender designation and the indeterminate sentence that accompanies it is the most severe penalty that exists in Canadian legislation, it is the opinion of the CCJA that this penalty should not be used lightly. Overuse of this sentencing option is likely to cause a burden on the courts and prison system, will be extremely costly and is unlikely to have the desired general deterrent effect.
The second issue raised by Bill C-27 is the creation of a presumption that the conditions for a dangerous offender designation are met by the mere fact of three convictions for ‘primary designated offences’ with sentences of two years or more. The onus is then placed on the defendant to prove, on a balance of probabilities, that despite his convictions he is not in fact dangerous and does not warrant an indeterminate sentence. The CCJA believes that the introduction of this reverse onus places an undue burden on the defendant and that the preparation of an adequate rebuttal will be beyond the financial means of many. The cost of psychological and psychiatric expert assessment and testimony is substantial. A single DO defence would severely tax the resources of legal aid organizations and defendants would not have access to a fair defence unless they had the means to pay for mental health experts to testify on their behalf. This would place most defendants at a serious disadvantage because of their limited financial means.
The third problem with this bill is the use of language that appears to attempt to remove judicial discretion. The word ‘may’ throughout the legislation is replaced by ‘shall’, indicating that, upon the presentation of relevant (and sufficient) evidence, the judge has no choice but to consider a dangerous offender hearing, to remand the defendant for assessment and/or to declare the defendant a dangerous offender. In practice, judicial discretion will still be exercised in determining that the evidence is sufficient to warrant a hearing. However, if a hearing is warranted, the mere fact of three existing convictions for primary designated offences and two prior sentences of 2 years or more puts the judge in a position where his discretion to decline a dangerous offender designation is removed. The only discretion that remains to the judge is the ability to determine that the current offence does not warrant a 2 year sentence, thereby failing to meet the presumptive conditions for a DO designation. However, the committee should note that in a recent court ruling (R. v. Roberts,  O.J. No. 297, January 31, 2007) it was determined that the Dangerous Offender/ Long Term Offender provisions of the criminal code should not be read as requiring that the sentencing judge first find that a minimum sentence of two years would be appropriate for the predicate offence. This ruling suggests that, were this legislation enacted, an individual could be subject to a dangerous offender hearing upon conviction for a third designated offence without requiring that said offence be found to warrant a minimum two year sentence.
The danger in limiting judicial discretion in this way is that judges may be more likely to hand down sentences of 2 years, less a day, which would put offenders into the provincial correctional system and circumvent the presumptive conditions. The provincial correctional systems are already utilised beyond capacity and do not have the resources to provide necessary rehabilitative programs or training, an obvious cause for concern.
The bill then directly contradicts its removal of discretion by allowing judges to determine that a long-term offender designation or a determinate sentence might adequately protect the public, despite the fact that the presumptive conditions for a DO designation have been met. Therefore, the restrictive language to limit judicial discretion can be viewed as an attempt to appear to encourage the use of the DO designation (a politically popular position) without making any real change in judges’ ability to hand down lesser sentences and deny DO applications. The substance of the bill, then, creates an appearance of “getting tough on crime” without introducing any new tools for prosecutors and judges to ensure that the dangerous offender provisions target only those who truly warrant long-term incarceration for the protection of the public.
If, as proponents of this bill suggest, this legislation is meant to target the “worst of the worst” and those who are a demonstrable threat to the safety of the public, then we would argue that the creation of reverse onus and the removal of judicial discretion are simply unnecessary. Existing legislation is sufficient to identify and target those who truly merit continued correctional supervision and incapacitation to protect the interests of the Canadian public. The legislation, as it stands, already permits a DO designation following three offences (which presumably would meet the standard for a pattern of persistent or aggressive behaviour), provided that the third conviction warrants a sentence of ten years or more. In fact, the current legislation also provides for the possibility of a DO application following a single serious personal injury or sexual offence. Prosecutors and judges wisely opt not to use these provisions lightly and yet there are already more than 384 dangerous offenders currently behind bars in Canadian prisons, demonstrating that the current provisions are adequate to meet the need for incapacitation in serious cases.
We would recommend the acceptance of proposed changes to the peace bond provisions. The amendments with regard to section 810.1 and 810.2 are not problematic or overly onerous. The CCJA would be in favour of extending the maximum time period of the peace bond order to 2 years and would further like to see this latitude and range of available conditions extended to section 810 in situations where a restraining order is necessary to protect a victim or potential victim of domestic violence or stalking.
The CCJA believes that the current dangerous offender legislation is adequate to protect the interests of the public and that the proposed changes would create too broad an application for the dangerous offender designation. Also, the creation of presumptive conditions would put undue burden of defence on defendants. If the committee considers the current minimum ten year sentence requirement for a DO application to be too restrictive, an alternative might be to reduce the sentence requirement for a dangerous offender hearing to seven years. However, the proposed sentence requirement of just two years will fail to direct the application of this legislation to the most serious offenders and opens the door to abuse of these provisions through overuse.
Alternatively, we would recommend that the committee consider strategies to improve the efficacy of rehabilitative programming for violent and sexual offenders in combination with the use of post-release reintegrative strategies, such as Circles of Support and Accountability (see Hannem & Petrunik, 2004) as a means of improving public safety without resorting to more punitive sentencing strategies.
For the reasons detailed above, the CCJA recommends that the committee reject Bill C-27 as it is currently presented. We would support amendments to section 810 that would provide more latitude in the use of the peace bond, but feel that the proposed amendments to the Dangerous Offender provisions are far too broad in scope and would lend themselves to the overuse of the indeterminate sentence as a punitive strategy.
Should the committee wish for more information on the use of dangerous offender legislation and indeterminate sentencing, or feel the need for further study of this issue and its alternatives, we would be happy to assist. The Canadian Criminal Justice Association is available as well to undertake a public education campaign, perhaps in partnership with government criminal justice organisations, should the committee believe it would be useful to address both unwarranted public fear and existing cautionary measures with regard to violent and sexual offenders and current dangerous and long-term offender provisions.
Hannem, S. & Petrunik, M. (2004) Canada’s Circles of Support and Accountability: A Community Justice Initiative for High-Risk Sex Offenders. Corrections Today, 66(7): 98-101.
Jakimiec, J., Porporino, F., Addario, S., & Webster, C. D. (1986). Dangerous offenders in Canada, 1977-85. International Journal of Law and Psychiatry, 9, 479-489.
McRuer, J.D. (chairman) (1958) Report of the Royal Commission on the Criminal Law Relating to Criminal Sexual Psychopaths (the McRuer Report). Ottawa: Queen’s Printer.
Petrunik, M.G. (1994). Models of dangerousness: A cross jurisdictional review of dangerousness legislation and practice. Ottawa: University of Ottawa, Criminology Department.
Pratt, J. Governing the dangerous: An historical overview of dangerous offender legislation. Social and Legal Studies, 5, 21-36.
Webster, C., & Dickens, B. (1983). Deciding dangerousness: Policy alternatives for dangerous offenders. Toronto: University of Toronto, Centre of Criminology.