Dangerous Offender BW (1)

Dangerous Offender and Judicial Discretion

Lecture Overview

• Focus Areas:

  • Review provisions related to Dangerous Offenders (DOs) and Long Term Offenders (LTOs) in Canadian Criminal Law.

  • Criteria judges use for designations and sentencing decisions.

  • Analyze the implications of the 2008 revisions to the Criminal Code, alongside concepts of Penal Populism, restraint, and proportionality.

  • Discussion regarding infamous cases in Canada related to DOs and LTOs.

Definitions

• Dangerous Offender (DOs):

  • Defined in Part XXIV, s. 752 of the Criminal Code of Canada (CCC).

  • Represents the ultimate sanction in Canada, involving indeterminate sentences for offenders who pose significant public risk.

  • Offenders must demonstrate to the Parole Board of Canada that they can be managed safely in the community.

• Long Term Offenders (LTOs):

  • Related provision to the DO designation, also defined under the same section of the CCC.

  • Applicable to offenders just short of facing an indeterminate sentence, requiring stricter community supervision for up to ten years post-incarceration.

Preventative Detention

• Historical Context:

  • Provisions prioritizing public safety over offenders' rights began in 1977 with the inclusion of DOs in the Criminal Code, allowing for indeterminate sentences if public safety was at risk.

• Legislation Criteria:

  • Two-stage process:

    • Designation as a DO or LTO.

    • Sentencing phase post-designation.

LTO’s and Judicial Discretion

• Impact of 1997 Changes:

  • Introduction of the LTO provisions stripped judges of discretion to impose determinate sentences on DOs, shifting power dynamics in sentencing.

The Current System (2008-Present)

• Tackling Violent Crime Act:

  • Major revisions introduced:

    • Complete loss of discretion by courts in categorizing offenders as Dangerous if criteria are met.

    • New sentencing category allowing determinate sentences followed by Long Term Supervision Orders (LTSO) with severe repercussions for breaches.

    • Stricter criteria replacing "reasonable possibility" with "reasonable expectation" for managing offenders in the community.

Determining Dangerousness

• Expert Reliance:

  • Use of forensic psychologists meeting the Mohan criteria as expert witnesses.

  • Assessments based on:

    • Offender's case history.

    • Clinical evaluations.

    • Interviews with acquaintances of the offender.

    • Actuarial and forensic testing data.

Issues with Actuarial Testing

• Methodological Problems:

  • Subjectivity in assessments can lead to inconsistent outcomes.

  • Cultural insensitivity highlighted:

    • Indigenous Peoples overrepresented among DOs (35.5% of cases).

    • Conflicts with s. 718.2(e) promoting cultural considerations in sentencing.

    • Gladue reports typically applied narrowly, focusing only on culpability.

• Ewert v Canada (2018):

  • Emphasized need for correctional institutions to tailor policies to Indigenous offenders' unique contexts and needs.

Defining Intractability

• R v Boutillier (2017):

  • Upheld 2008 CCC changes, asserting indeterminate detention may be necessary even if disproportionate.

  • Criticism of s. 753(4.1)'s presumption favoring indeterminate sentences, potentially ignoring facts about offenders' circumstances.

Critiques of Indeterminate Sentencing

• Indeterminate sentences viewed as excessive, especially where offender accountability and offence severity are low.

• Discussion on adequacy of alternative measures (e.g., longer determinate sentences with LTSOs) in addressing public safety concerns without indeterminate detention.

Rehabilitation of DOs

• Integrated Correctional Program Model (ICPM):

  • Focuses on the management of rehabilitation efforts with DOs.

Case Studies

• Rv Byers & Rv Stuckless:

  • Analyses of specific legal cases highlighting application of dangerous offender laws and judicial decision making.

Application: Reasons for Sentence

• R v JF (2017):

  • Case concerns manslaughter of a two-year-old boy by offender J.F., and the procedural complexities arising from the Gardiner Hearing to determine culpability and sentencing outcomes.

• Key Elements:

  1. Proof of J.F.'s assault leading to N.C.'s death.

  2. The judge’s rationale based on evidentiary findings.

READING dangerous and long term offenders

ntroduction

• Dangerous offenders (DO) and Long-term offenders (LTO):

  • Represent a small percentage of offenders that pose a significant threat to public safety.

  • Their designation is meant to provide protection to society against violent or sexual violence.

  • The chapter outlines the history and current legal framework surrounding these designations.

Sentencing Regimes

• DO Designation:

  • Indeterminate sentences can be imposed if the offender poses a substantial risk to society.

  • Release possible only if risk can be managed in the community, determined by the Parole Board of Canada.

• LTO Designation:

  • Conditional release with heightened supervision for up to ten years.

  • Allows for determinate sentences with strict monitoring, aiming to protect the public.

• Historical Context:

  • DO legislation has evolved to respond to shifting societal attitudes toward public safety and offender rehabilitation.

  • Original legislation dates back to 1947, influenced by earlier British laws.

Legislative History

• Major Acts:

  • Habitual Offender Act (1947): Allowed for preventive detention of habitual offenders.

  • Criminal Sexual Psychopath Act (1948): Preventive detention for offenders unable to control sexual impulses.

  • Dangerous Offender Legislation (1977): Expanded criteria for designation based on the nature of offenses and potential future harm.

  • Tackling Violent Crime Act (2008): Important amendments to criteria and discretion in sentencing.

Current Framework (Post-2008)

• Designations:

  • Courts must find an offender dangerous if statutory criteria are met.

  • Introduction of DO designation with determinate sentences.

• Risk Assessment:

  • New framework requiring a "reasonable expectation" that risk can be managed in the community.

Key Issues

1. Defining Dangerousness:

   • Reliance on expert assessments, primarily by forensic psychiatrists, who evaluate the risk based on historical behavior.

2. Concept of Intractability:

   • Emphasizes the idea that certain behaviors of offenders cannot be reformed is pivotal for DO designations.

3. Rehabilitation of High-Risk Offenders:

   • Rehabilitation programs are in place; however, the efficacy varies among high-risk offenders due to complex issues like substance abuse.

4. Community Residency for Offenders:

   • Most high-risk offenders are given residency conditions requiring them to live in community correctional centers (CCCs) for better monitoring and support.

5. Indigenous Offenders:

   • Overrepresentation of Indigenous individuals in DO designations; courts must balance protective measures with cultural considerations.

   • Section 718.2(e) of the Criminal Code requires consideration of Indigenous heritage during sentencing.

Case Studies

• R v Byers:

  • Convicted for attempting to kidnap and assault minors; underlying psychiatric issues led the court to impose an indeterminate sentence despite no prior offenses.

  • Emphasis on complex diagnoses and high-risk factors such as sexual paraphilia.

• R v Stuckless:

  • Recognized as a prolific sex offender yet not deemed a danger for future offenses due to age and ongoing treatment efforts; highlights complexity of assessing future risk.

Conclusion

• The Dangerous and Long-Term Offender regime attempts to protect society while navigating the complex nature of rehabilitation and recidivism.

• Ongoing debates around the effectiveness and ethical implications of such legal provisions underline the importance of nuanced analysis in sentencing decisions.

SECOND READING

REASONS FOR SENTENCE

Principles of Sentencing

• Purpose of Sentencing: Imposing a just sentence requires balancing various factors.

  • Outlined in Section 718 of the Criminal Code.

  • Key factors must be considered to guide sentencing decisions.

Key Principles of Sentencing

• Proportionality: Sentences must match the gravity of the offense and moral blameworthiness of the offender.

• Parity: Sentences should be similar for similar offenses committed under similar circumstances.

Objectives of Sentencing

• General Principles: Objectives include denunciation, deterrence, rehabilitation, and community protection.

  • Denunciation: Reflects the harm done to victims and community standards.

  • General Deterrence: Aims to discourage others from committing similar offenses.

  • Specific Deterrence: Focuses on deterring the specific offender from reoffending.

  • Rehabilitation: Emphasizes the need to promote offender responsibility.

  • Community Protection: Sometimes requires separating the offender from society.

Specific Considerations for Offenses Involving Minors

• Criminal Code states that abuse of a person under 18 necessitates a focus on denunciation and deterrence.

Analysis of the Offense

• Mitigating and Aggravating Factors: Consideration of these factors is crucial in determining an appropriate sentence.

Aggravating Factors in Mr. J.F.'s Case

1. Abuse of a minor (under 18).

2. Abusing a position of trust or authority with the victim.

3. Mr. J.F.'s history of domestic violence against Ms. M.C.

   • His actions toward Ms. M.C. and her son show repeated abuse and control.

4. Vulnerability of the victim, N.C., who was only two years old.

5. History of severe physical abuse noted in testimony.

Mitigating Factors

1. No prior criminal record.

2. Difficult childhood with instances of abuse may offer context.

3. Support from family and church as a positive influence.

4. Pleading guilty and accepting some responsibility, although limited.

Emphasis on Denunciation, Deterrence, and Rehabilitation

• Denunciation and Deterrence: Highlighted as primary considerations in sentencing sexually abusive and violent crimes, especially against children.

• Rehabilitation: Important but must be approached with caution due to Mr. J.F.'s concerning views and history.

Legal Framework and Context

• Section 718.2: Statutory aggravating factors relevant to domestic violence.

• Case References: Cites cases that emphasize deterrence and denunciation in cases involving domestic abuse and child endangerment.

Sentence Considerations for Mr. J.F.

• Comparison to Ms. M.C.: Noted that she received a six-year sentence due to her higher moral blameworthiness as the primary caregiver.

• Assessment of Sentences: J.F.'s repeated and severe offenses warrant a higher sentence than Ms. M.C.'s.

Conclusion on Sentence

• Recommended sentence: Nine years imprisonment, with credit for time served.

• Ancillary Orders: Includes DNA Order, weapons prohibition, and forfeiture of seized items.