Once upon a time, the dangerous offender population was reserved for a limited, extremely violent subset of the offending population. Nowadays, offenders and defence lawyers alike long for the halcyon days of yesteryear where this issue reared its head rarely. In 2017, dangerous offender applications are on a meteoric rise across Canada as the crime rate—both violent and non-violent—continues its steady decline. Why?
Dangerous Offenders: What are they? Where Did They Come from?
To answer that question, one needs to begin examining the law as it developed. In the 1940’s, Canada introduced legislation dealing with “habitual criminals”. These individuals were held if they had a record of three previous indictable offences and who are persistently leading a criminal life. The law did not distinguish between violent or non-violent offending and captured individuals guilty of property crimes or any other issue. Parliament amended the law to add preventive detention for “criminal sexual psychopaths” who through a lack of controlling their sexual impulses may attack or injure another person.
A committee on the state of Corrections recommended the repeal of these laws in 1969, citing the fact that they were overbroad and targeted non-dangerous offenders such as property, and also too exclusive by requiring a specific number of prior offences before its use could be invoked.
Therefore, in 1977, Parliament enacted dangerous offender legislation that sewed the seeds for the current growth of the regime. The 1977 law set out four pathways to becoming a dangerous offender. Firstly, a person had to be convicted of a “serious personal injury offence” and then display:
- A pattern of repetitive behaviour (of which the most recent offence formed part) that showed a likelihood of causing death or serious injury to another person through failure to restrain behaviour
- A pattern of persistent aggressive behaviour (of which the most recent offence formed part) that shows a substantial degree of indifference as to reasonably foreseeable consequences to others
- Any behaviour associated to predicate offence that is of such brutal nature that compels conclusion that the individual will not be inhibited by normal behavioural restraints
- Conduct in any sexual manner that shows a failure to control sexual impulses and is likely to cause injury or pain to other persons in the future.
The Court could exercise its discretion and find the offender to be a dangerous offender if the situation so warranted, and could then ascribe an indeterminate sentence in lieu of any other sentence.
In R v Lyons, at paras 44-47, the Supreme Court of Canada considered that legislation in the context of a constitutional challenge. At that time, the Court found that the target demographic was sufficiently limited to “a very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration”. The Court had discretion at the designation stage, and could choose whether or not to exercise it. Further, the Court found that it could not think of a better way to accomplish public protection. Lastly, the existence of parole saved the punishment from being grossly disproportionate.
Essentially, the Court said that dangerous offenders targeted the right people, and had the right procedural safeties in place to ensure that the law was constitutional and did not interfere with the Charter.
Over time, the law evolved, and introduced long-term offender provisions. A long-term offender is someone who is supervised in the community with rigorous conditions after serving a sentence for their offence. The difference between a long-term offender and a dangerous offender is that the dangerous offender label sticks for life, and allows for the possibility of an indeterminate sentence. Following the long-term supervision order mentioned above, the sentence completes and the label for a long-term offender is gone. The existence of the long-term offender option changed the dangerous offender legislation by requiring that any offender labeled to be a dangerous offender receive an indeterminate sentence. Any discretion pertaining to sentence was gone. However, the discretion to affix the dangerous offender label in the first place remained with the sentencing judge.
Again, the Supreme Court of Canada dealt with the constitutionality of the new provisions. In R v Johnson, the Court found that the fact that discretion remained at the designation stage, coupled with the introduction of the long-term offender provision again kept the dangerous offender regime constitutional.
What Are the Provisions Now?
In 2008, Parliament again amended the dangerous offender provisions. These amendments set out the law as it presently stands in Canada. The changes are two-fold. Firstly, a sentencing judge must designate someone a dangerous offender if they met one of the four criteria. Then according to section 753(4.1) of the Criminal Code, a trial judge “shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure” will protect the public. The two changes made to the legislation significantly impact the application of the provisions presently.
Firstly, the discretion to impose a dangerous offender designation is gone and the discretion on sentencing is largely gone given that a sentencing official must now find a reasonable expectation that a person will be manageable. In the past, the standard was that there was a reasonable possibility of control in the community. This change is significant because while there is no burden on the offender to call evidence, it does require that there be evidence for him or her to consider and to decide that the standard of reasonable expectation is met.
It is these changes that have led to a renewed constitutional challenge to the Supreme Court of Canada in R v Boutilier, which we will explore next week.
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