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Blog of Adam Daifallah -- author, journalist, law student. Lover of politics, writing, golf, curling, fitness, fashion, bacon and maple products -- not necessarily (but probably) in that order. Partisan of the Anglosphere. Contact me via email at adam@daifallah.com.
Thursday, July 19, 2007
Dangerous Offender provisions of the Criminal Code
Little-discussed provisions of the Criminal Code are once again in the news. “Notorious pedophile” Peter Whitmore has been offered a deal: if he pleads guilty to sexually assaulting two young boys, he’ll receive a life sentence - but will not be subject to a “Dangerous Offender” application.
Back in law school I wrote a lengthy paper examining the theoretical underpinnings of these applications. This is the (abridged) section outlining the nuts and bolts of Canada’s Dangerous Offender legislation:
The current provisions for Dangerous and Long-Term Offenders are set out in Part XXIV of the Criminal Code. An offender must have been found guilty of a “serious personal injury offence,” defined in section 752 as either an indictable offence carrying a possible penalty of at least ten years involving the use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person, or conduct likely to inflict severe psychological damage on another person; or an offence or attempt to commit a sexual assault under section 271, 272, or 273.
Once an individual is convicted, the Crown can make an application at any time up to six months later. To succeed in their application, the Crown must prove beyond a reasonable doubt that the “offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing:”
(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behavior by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behavior and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behavior,
(ii) a pattern of persistent aggressive behavior by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behavior, or
(iii) any behavior by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender's behavior in the future is unlikely to be inhibited by normal standards of behavioral restraint; or
(b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (b) of the definition of that expression in section 752 and the offender, by his or her conduct in any sexual matter including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.
If this application succeeds, the court is required to impose an indeterminate sentence, without parole review for seven years.
If the application fails, or no such application was made, and the offender was convicted of a sexual offence for which a sentence of two years or more is appropriate, the Crown can make an application to declare the offender a Long-Term Offender. This application will succeed when the court is satisfied beyond a reasonable doubt that there is a substantial risk that the offender will re-offend, and there is a reasonable possibility of eventual control of the risk in the community. The requirement of a “substantial risk to re-offend” will be satisfied where the offender has shown either a pattern of repetitive behavior that shows a likelihood of further death, injury, or psychological harm to other persons, or conduct in a sexual offence that shows a likelihood of future injury, pain, or other evil to other persons.
If the Long-term Application succeeds, the offender is sentenced to a maximum ten year monitoring period in the community, following the completion of their sentence for the underlying offence. If the Long-Term Application fails, or the Crown elects not to make one, then the offender serves only the sentence imposed for the underlying offence.
Despite the expansion of their applicability caused by the 1977 and 1997 amendments, these provisions of the Criminal Code remain infrequently used, as only approximately 15 offenders per year are designated Dangerous Offenders. Even more infrequent is the release of such an offender; in 1997, only four out of one hundred and seventy six Dangerous Offenders were on some form of conditional release.
According to a survey of the Dangerous Offender population in 1994, they tend to be white, middle-aged, uneducated men, facing financing difficulty:
IQ 94.9
Mean age 34.4
Sexual offence 92%
Grade completed 8.5
% single 48.4
Caucasian 95.2
% unemployed 63.3
% financial difficulty 58.9
Significantly, despite the attempt of the 1977 DO provisions to broaden the category to include non-sexual offenders, virtually all Dangerous Offenders had at some point been convicted of a sexual offence. To evaluate the efficacy of the DO criteria in identifying probable repeat offenders, the study compared Dangerous Offenders to a group of federal offenders who had, upon, release, subsequently re-offended violently. These “detention failures” had similar characteristics to Dangerous Offenders, suggesting that the criteria for Dangerous Offenders are indeed identifying probably recidivists.
It goes on like this for 40-some pages. Let me know if you have a burning desire to read the rest.
What's the result of this deal? It does increase the likelihood that Whitmore will one day get parole, but only slightly. A life sentence can actually mean life in jail: a parole board will have to approve any release, and given his past they will, presumably, be unlikely to do so.
# posted by Keir Wilmut : 10:14 AM
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