How often have we heard news stories that go something along the following lines?
An offender, convicted of a serious violent and/or sexual offence has served his (it is almost always a he) prison sentence in full. Since he has paid his debt to society he will soon be released into the community. Police and prison officials are deeply concerned that he is at a “high risk to reoffend” — a sanitized, clinical-sounding way of saying there is a good chance he will violently beat, rape, or kill someone some day.
But his sentence has been served. His time is up. And that is that.
“How can that be?” the incredulous comments inevitably go. “If you are so sure he will just do it again why on earth are you letting him out?”
Such stories are the kind that shake the confidence of Canadians in their criminal justice system.
Philosophically, I think the notion that justice is done by serving some specified prison sentence is not one that Canadians have necessarily bought into. When a person has broken the public trust so egregiously by committing certain serious offences, the question governing their release from prison ought to be whether they represent a threat to public, not whether they have simply sat in jail (being rehabilitated or not) for some pre-determined length of time.
Enter Canada’s system of dangerous offender designations, which was recently in the news after defense lawyers, joined by a representative of the Yukon’s Legal Services Society (legal aid), took a run at its constitutionality before the Supreme Court of Canada.
Dangerous offender designations — which have existed since 1977 — represent an attempt by Parliament to restore the balance of the criminal justice system in favour of public safety. Most individuals deemed to be dangerous offenders by the courts will receive so-called indeterminate sentences, meaning they will only be released if the parole board determines that it is safe to do so (although the Criminal Code does allow for other less severe options in appropriate circumstances).
If such a time never comes, the offender isn’t released.
There are a few things you should know about dangerous offender designations. They only apply to people who have been already convicted of serious violent or sexual offences. They do not allow the Crown to run around having people who have yet to do something wrong incarcerated on the fear that they may do so in the future. Dangerous offender designation must also be sought at the time of sentencing. So the Crown cannot wait and see if the offender will be rehabilitated in prison. If they don’t seek a designation at sentencing they won’t be able to seek one at all.
The imposition of indefinite sentences is obviously something with constitutional implications but the Supreme Court of Canada has upheld the dangerous offender designations in the past.
CBC North recently reported on the most recent ill-fated attempt by defence lawyers in several provinces to have the regime thrown out. The Yukon lawyer who appeared before the court predicted that we will see a “reduction in the number of designations and applications in the Yukon” as a result of some of the commentary by the court.
Further clarification from the courts in future cases will ultimately settle whether some of the court’s statements actually raised the bar for a designation or if it was simply restating in other words things that it had already said before.
It is the job of defense lawyers to challenge the constitutionality of legislation that impacts the rights of their clients. But I suspect it would be difficult for Canadians who believe that public safety ought to weigh heavily against the rights of convicted offenders to see how a reduction in the number of dangerous offender designations — and thus an increase in the number of repeat, violent offenders walking the street — might be a positive.
The test for a dangerous offender designation is already plenty strict enough.
Before a designation can be made a person must have been convicted of what the legislation calls a “serious personal injury offence” — in other words, a violent crime short of murder. In addition he must either “constitute … a threat to the life, safety or physical or mental well-being of other persons” or have “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.”
In order to find that a person “constitutes a threat to the life, safety or physical or mental well-being of other persons,” the courts have ruled that the judge hearing the application must determine that there is a “high likelihood of harmful recidivism” and that the “violent conduct is intractable.”
The dangerous offender designation already represents a reasonable way for society to ensure that its members are kept safe from the most dangerous offenders and it is a relief that the high court decided not to disturb or unduly restrict that regime.
Kyle Carruthers is a born-and-raised Yukoner who lives and practises law in Whitehorse.