A cell in the Whitehorse Correctional Centre photographed during a media tour in 2012. (Mike Thomas/Yukon News file)

Labelling someone a dangerous offender should be a last resort

Maybe it’s time to re-think our approach to criminality

Vincent Larochelle |Special to the News

Most of us agree that certain criminals pose a threat so great to the public safety that they ought to be separated from society. These types of individuals are labelled “dangerous offenders” by the criminal justice system. The label is for life, and carries a significant amount of stigma both in and out of the correctional system. It is arguably one of the harshest sentences that can be imposed for the commission of a crime.

Disagreement arises when it comes to deciding who should be designated as a dangerous offender. Jack the Ripper is a dangerous offender. A first-time petty thief is not. That’s easy. Some cases, however, are more difficult to decide.

Intuitively, one would expect that the label “dangerous offender” is affixed only to those individuals whose past conduct is so egregious, and whose prospects at rehabilitating themselves are so slim, that the only solution left is to separate them from society. In other words, dangerous offenders are individuals for whom we’ve given up all hope.

The problem is, peering into the future of a criminal offender is a difficult task. Even psychiatrists with decades of experience in this field acknowledge that their predictions on whether someone will re-offend are inherently unreliable. The simple truth? No one knows for certain whether an offender is a serious threat or not.

Sometimes, the uncertainty about future risk is resolved by not designating an offender as dangerous, on the basis that they have a sufficient chance to rehabilitate. There is nothing unorthodox about resolving uncertainties in favour of an offender. That is a bedrock principle of criminal law.

Some judges, encouraged by amendments to the Criminal Code in 2008, started avoiding the difficult question of risk prediction by saying: who cares about the future? If a person’s past is bad enough, we’ll just stick the dangerous offender label on them and see what happens. I’ll leave you to guess which group in Canada has most been affected by this development in the law.

That’s where the recent case to the Supreme Court of Canada on the subject of dangerous offenders enters into play. Criminal defense lawyers throughout the country appealed to the Supreme Court of Canada and argued that we can’t label offenders as dangerous if they have a chance at rehabilitating themselves. This argument was the single most important point made by defense lawyers, and the high court agreed with them.

Thus, to describe the appeal of criminal defense lawyers in the Supreme Court of Canada as an ill-fated attempt is to grossly misunderstand what the case was about. The judgment in that case was a victory for the appellants, because the Supreme Court of Canada nullified the 2008 amendments to the Code without having to declare them unconstitutional. Finely played indeed. Especially given this government’s paralysis thus far when it comes to enacting criminal legislation of any form.

What does this mean for the Yukon? It means, hopefully, that we are going to stop putting offenders, who are mostly First Nations, under the permanent oversight of the correctional system if there is a chance that they can lead a normal life. It also means that as a community, we won’t give up on offenders unless and until we are reasonably confident that there is no hope. That’s the compromise we can reach between being safe, and being humane.

Most offenders in the Yukon just need a bit of time off to sober up, support to deal with trauma in their lives, and then some structure on the outside. So why did the Yukon build a $75 million dollar jail with annual operating costs of $10 million and no proper courtyard? The answer, I think, has a lot to do with fear-mongering that our streets are teeming with repeat and violent offenders, and that the best thing to do is to lock them up. In fact, decades of research indicate that jail increases criminal offending.

Maybe it’s time to re-think our approach to criminality. If we combined creative thinking with a fraction of the resources we allocate to maintaining a maximum security prison — often just to house alcoholics — we could do better.

Vincent Larochelle is a lawyer with the Yukon Legal Services Society specializing in criminal law and appeals.

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