How Dangerous is Dangerous? The "Dangerous Offender"

North America » Canada » Northwest Territories » Yellowknife
September 19th 2012

Published: September 19th 2012

(A word of warning to all my readers who are not in Law School- you may find this blog entry- A- Boring, B- Just won’t care, but read on friends If you feel like learning something new today!)

Under Section 753 of the Criminal Code a person can be declared a “Dangerous Offender” and can be sentenced to prison for an “indeterminate amount of time.” At first glance, the only person I could think of who fit this description was the notorious Paul Bernardo, and yes, he has been declared a “Dangerous Offender.” (And rightfully so, in investigating this designation I read the judgments regarding his crimes and it was and still remains truly nightmarish stuff.) There have been an above average amount of “Dangerous Offender” hearings in the Northwest Territories because of the high incidences of sexual assault (as mentioned in my previous blog posting).

Some things need to be cleared up, however. If one receives the “Dangerous Offender” designation they can still apply for parole after they have served their sentence. The hurdle to achieve parole will just be higher. (No worries folks, Bernardo is serving two life sentences 25 + 25 years for the murders of the two girls from St. Catharines, and another five years for unlawful confinement, none of which are being served concurrently.) For example, a convicted pedophile here in the Northwest Territories who served his time for his offences was able to make parole with the condition that he take chemical castration drugs. This condition would probably not have been in effect if he hadn’t been named a “dangerous offender.”

I looked up the offence under the Criminal Code and it reads: (generally): “A person must be convicted of a primary designated offence for which it would have been appropriate to impose a sentence of two years or more and must have been previously convicted at least twice and was sentenced to at least two years for each conviction. The person is then presumed to be a dangerous offender and must disprove this on a balance of probabilities.” If the Crown (prosecution) is attempting to find this designation they must apply to the Court before sentencing and the convicted individual is subjected to 60 days of psychological testing and the expert opinion is tendered in Court at the “Dangerous Offender” hearing which is done in lieu of sentencing for the final offence. Notably, the defence can also get an expert opinion to be tendered in court as well. (Quite the expensive proposition up here in Yellowknife when services of that kind are not readily available….) Also, interestingly and perhaps controversially, when the convicted individual is male, tests that the Crown can order include “phallometric testing.” This test measures the level of blood-flow to the penis when the convicted individual is shown certain pictures and videos. The most commonly reported methods of conducting this test involve the measurement of the circumference of the penis with a mercury-in-rubber strain gauge.

At the hearing itself the judge will hear submissions and review the past criminal history. He or she can also choose to hear victim impact statements (which was done at length at the Bernardo hearing).

Hmmmmm…who is presumed to be a “dangerous offender?” I had a little trouble with this upon first read. Why? I am a bit conflicted as to whether this section really helps the people committing these offences, or whether or not I should care if it does. Are we just giving up on them and throwing them in jail? Whose problem is this? Ours, as a collective society? Or is the fault of the community/family in which the person was raised? In the R v Kudlak decision, the psychologist (psychiatrist?) on the stand at his “dangerous offender” hearing mentioned what could possibly help the individual:

“However, there are numerous approaches to managing this individual's risk that have the potential to be of significant assistance that have not been tried to date. In particular, were this individual to be living in a group home targeted to developmentally delayed sex offenders, with 24 hour supervision and with both sex-drive reducing medication and anti-alcohol medication, then I think his risk could likely be managed in the community. Such treatment would need to continue in essence in perpetuity. As previously noted, however, such resources are in scarce supply and it is not clear whether Mr. Kudlak would even be considered an appropriate candidate, given his current criminal record. Absent such structure being available to him, I do not believe that his risk is manageable in the community, from a psychiatric perspective.”

Notably, In Ontario the government has started initiatives in finding the appropriate pharmacological and psychological interventions for developmentally delayed offenders, including those who have a propensity towards sexual deviance. I in fact worked at one such place and am keenly aware of the challenges that social service workers face when implementing such programs while ensuring safety as I was seriously injured by one such individual. (Who may have injured me because he was sexually attracted to me as this was one theory that was being discussed in the aftermath.)

Further, it was mentioned in the Kudlak decision that the offender in question was subjected to abuse as a child, may have undiagnosed fetal alcohol spectrum disorder, and had a serious alcohol addiction problem.

Interestingly, and I think quite timely considering the Omnibus Crime Bill that went through the House of Commons last year (boo), there has been a Charter Challenge to this provision and the “reverse onus” clause. (For those of you not in law school, the fact that it is presumed that the person is a “dangerous offender” and the fact that the offender has the burden of proving that they are not is considered a “reverse onus.” Most of the time in Criminal Law it is up to the Crown to prove things in court not the defence.)

The fact that it is a “reverse onus” is relatively recent. In R v Kudlak (the case referenced above) at paragraphs 9-10 (link provided) a former Supreme Court Justice in Yellowknife outlined the changes to the legislation. The link to the entire decision is:

http://www.canlii.org/en/nt/ntsc/doc/2011/2011nwtsc29/2011nwtsc29.html

Further, if any criminal and constitutional law nerds (I mean this as a compliment truly because I am one) who would like to read the Charter challenge judgment, that was successful by the way (this is kind of a big deal), the link is:

http://www.canlii.org/en/on/onsc/doc/2012/2012onsc5050/2012onsc5050.html

(Hey Sarah, what’s with all the depressing blog postings?? First alcohol abuse and aboriginal issues and now dangerous offenders? Geez, way to be a downer.) Have no fear readers! My next blog will discuss ravens (as in the bird) because they are MASSIVE and EVERYWHERE up here!

How Dangerous is Dangerous? The "Dangerous Offender"

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