Dangerous Offender Legislation in Canada AAPL ANNUAL MEETING MONTREAL OCTOBER 27, 2005 Daniel J. Brodsky [email_address]
Purpose of the Criminal Law <ul><li>Provide prompt retribution for victims of crime  </li></ul><ul><li>To ‘protect society...
The Sentencing Process <ul><li>The Sentencing Process is probably the most visible and controversial phase of the criminal...
Just Deserts and the  Principle of Proportionality <ul><li>718.1 Fundamental Principle </li></ul><ul><li>A sentence must b...
Preventive Detention <ul><li>Preventive detention under Part XXIV of the  Criminal Code  is the most awesome sanction of p...
Legislative Framework <ul><li>Part XXIV of the  Criminal Code  contains the criteria and procedure for declaring a convict...
Legislation (Pre-1997) <ul><li>On February 3, 1997 the  Code  provided: </li></ul><ul><li>753.  Where, upon an application...
Legislation (Post-1997) <ul><li>Effective August 1, 1997, Part XXIV of the  Code  was substantially amended.  First , sect...
Legislation (Post-1997) <ul><li>(2) The court shall be satisfied that there is a substantial risk that the offender will r...
Legislation (Post-1997) <ul><li>Second, the dangerous offender provisions were amended to take away the trial judge’s disc...
Legislation (Post-1997) <ul><li>Third, subsection 753(5) was added to the  Code  which provides as follows: </li></ul><ul>...
Legislation (Post-1997) <ul><li>Section 753.3 of the Code provides that breaching a long-term supervision order is an indi...
The Animating Objectives (LTO Legislation) <ul><li>The maximum ordinary duration of a probation order (three years), is no...
Management <ul><li>Long term supervision should have as its objective the enhanced safety of the public through targeting ...
Jerimiah Johnson <ul><li>On September 26, 2003, the Supreme Court of Canada released its decision in  R. v. Jerimiah Johns...
Sentence Administration <ul><li>The failure of the government to provide reasonable treatment and management infrastructur...
Public Pressure <ul><li>Brutal high profile crimes are sensationalized by the media and cause  panic in the community </li...
THE ADVERSARIAL SYSTEM <ul><li>By definition there is both a winner and a loser in an adversarial criminal justice system ...
The Expert’s Responsibility <ul><li>United States Supreme Court Justice Stephen Breyer  noted the pervasive use of expert ...
Role in Adversary Proceedings <ul><li>In adversary proceedings the lawyer's function as advocate is openly and necessarily...
Over Value the Expert <ul><li>The adversary system is probably the best tool we have for detecting overconfidence, self-de...
So – what is the problem with that? <ul><li>Science is becoming more complex </li></ul><ul><li>Witnesses remain as fallibl...
OPINION EVIDENCE <ul><li>The role of opinion evidence in fact determination is a controversial one.  </li></ul><ul><li>Som...
EXPERT OPINION <ul><li>The rules on expert opinion are unstable and there is an ongoing debate about both the role of expe...
R v. Mohan <ul><li>Justice Sopinka (Supreme Court of Canada): Admission of expert evidence depends on the application of t...
Social Science Research <ul><li>Social science and actuarial data can provide information on social facts; i.e., facts tha...
Misleading Opinions <ul><li>Even honest witnesses who are trying to be objective may not be asked the right questions and ...
Appeals <ul><ul><li>To the Provincial Court of Appeal </li></ul></ul><ul><ul><li>Review by the Minister Of Justice (S. 696...
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Dangerous Offernder Laws In Canada

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Dangerous Offenders
Long-Term Offenders

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  • Julian Roberts and David Cole (1999), “Introduction to Sentencing and Parole” in Making Sense of Sentencing (Toronto: University of Toronto Press) pp. 3-25
  • Paul C. Giannelli AKE V. OKLAHOMA: THE RIGHT TO EXPERT ASSISTANCE IN A POST-DAUBERT, POST-DNA WORLD Paul C. Giannelli AKE V. OKLAHOMA: THE RIGHT TO EXPERT ASSISTANCE IN A POST-DAUBERT, POST-DNA WORLD
  • Dangerous Offernder Laws In Canada

    1. 1. Dangerous Offender Legislation in Canada AAPL ANNUAL MEETING MONTREAL OCTOBER 27, 2005 Daniel J. Brodsky [email_address]
    2. 2. Purpose of the Criminal Law <ul><li>Provide prompt retribution for victims of crime </li></ul><ul><li>To ‘protect society’ from ‘dangerous’ individuals </li></ul><ul><li>Under the rule of law </li></ul>
    3. 3. The Sentencing Process <ul><li>The Sentencing Process is probably the most visible and controversial phase of the criminal justice system: </li></ul><ul><li>Sentencing and the parole system are criticized by many but understood by few </li></ul><ul><li>The sentencing decision is one of the most difficult facing a judge </li></ul>
    4. 4. Just Deserts and the Principle of Proportionality <ul><li>718.1 Fundamental Principle </li></ul><ul><li>A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender </li></ul><ul><li>A dangerous offender designation, which allows for an indeterminate sentence, is a notable exception to the general rule in sentencing that the particular sentence must fit the particular crime </li></ul>
    5. 5. Preventive Detention <ul><li>Preventive detention under Part XXIV of the Criminal Code is the most awesome sanction of punishment in Canadian Criminal law. </li></ul><ul><li>It is a dramatic departure from the general rule that each sentence must be proportionate to the offence committed </li></ul><ul><li>It is only applied to a very small group of offenders whose violent conduct is substantially or pathologically intractable </li></ul><ul><li>It is only justified where the sentence actually serves its purpose of protecting the public, and where that purpose cannot be met with any other sentence </li></ul>
    6. 6. Legislative Framework <ul><li>Part XXIV of the Criminal Code contains the criteria and procedure for declaring a convicted offender a Dangerous Offender (DO) or a Long-Term Offender (LTO) in Canada. </li></ul><ul><li>The DO provisions in s. 753 of the Code allow courts to impose an indeterminate sentence of preventive detention. </li></ul><ul><li>Pursuant to s. 753.1 of the Criminal Code , if an individual is found to be an LTO, the court is required to impose a sentence of not less than two years for the offence committed plus an order that the offender be supervised in the community for a period not exceeding ten years. </li></ul>
    7. 7. Legislation (Pre-1997) <ul><li>On February 3, 1997 the Code provided: </li></ul><ul><li>753. Where, upon an application made under this Part following the conviction of a person for an offence but before the offender is sentenced therefore, it is established to the satisfaction of the court... </li></ul><ul><li>(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 conduct in any sexual matter including that involved in the commission of the offence for which he has been convicted, has shown a failure to control his sexual impulses and a likelihood of his causing injury, pain or other evil to other persons through his failure in the future to control his sexual impulses, </li></ul><ul><li>The court may find the offender to be a dangerous offender and may thereafter impose a sentence of detention in a penitentiary for an indeterminate period, in lieu of any other sentence that might be imposed for the offence for which the offender had been convicted. </li></ul><ul><li>At that time, the Criminal Code did not contain any provision for designating someone a long-term offender. </li></ul>
    8. 8. Legislation (Post-1997) <ul><li>Effective August 1, 1997, Part XXIV of the Code was substantially amended. First , section 753.1 was added to the Code thereby creating long-term offender designation: </li></ul><ul><li>753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that </li></ul><ul><li>(a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which he offender has been convicted; </li></ul><ul><li>(b) there is a substantial risk that the offender will reoffend; and </li></ul><ul><li>there is a reasonable possibility of eventual control of the risk in the community. </li></ul>
    9. 9. Legislation (Post-1997) <ul><li>(2) The court shall be satisfied that there is a substantial risk that the offender will re-offend if </li></ul><ul><li>(a) the offender has been convicted of [a designated offence], or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted; and </li></ul><ul><li>(b) the offender </li></ul><ul><li>(i) has shown a pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms a part, that shows a likelihood of the offender's causing death or injury to other persons or inflicting severe psychological damage on other persons, or </li></ul><ul><li>(ii) by conduct in any sexual matter including that involved in the commission of the offence for which the offender has been convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. </li></ul><ul><li>(3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall </li></ul><ul><li>(a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and </li></ul><ul><li>(b) order the offender to be supervised in the community, for a period not exceeding ten years … </li></ul>
    10. 10. Legislation (Post-1997) <ul><li>Second, the dangerous offender provisions were amended to take away the trial judge’s discretion to grant a determinate sentence to those who are found to be dangerous offenders. </li></ul><ul><li>Under the new provisions, the Court was required to impose an indeterminate sentence following a dangerous offender designation. </li></ul>
    11. 11. Legislation (Post-1997) <ul><li>Third, subsection 753(5) was added to the Code which provides as follows: </li></ul><ul><li>753(5) If the court does not find an offender to be a dangerous offender, </li></ul><ul><li>(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or </li></ul><ul><li>(b) the court may impose sentence for the offence for which the offender has been convicted. </li></ul>
    12. 12. Legislation (Post-1997) <ul><li>Section 753.3 of the Code provides that breaching a long-term supervision order is an indictable offence punishable by a term not exceeding ten years imprisonment. </li></ul>
    13. 13. The Animating Objectives (LTO Legislation) <ul><li>The maximum ordinary duration of a probation order (three years), is not sufficient for those offenders who can be managed in the community but who require an extended period of supervision and treatment to be stabilized </li></ul><ul><li>Probation cannot be attached to sentences of two years or more, leaving lacunae in two ways: </li></ul><ul><ul><li>More serious offenders, (i.e. those who receive penitentiary length sentences) cannot receive the support of extended community supervision other than through parole as a result of the imposition of a long custodial sentence </li></ul></ul><ul><ul><li>On dangerous offender applications, the court currently has only the alternative of indefinite detention at one extreme, and a definite sentence at the other. </li></ul></ul>
    14. 14. Management <ul><li>Long term supervision should have as its objective the enhanced safety of the public through targeting those offenders who could be effectively controlled in the community, based on the best scientific and clinical expertise available. Supervision under such a scheme is focused on stabilizing the offender in the community, with particular attention to any precursors to re-offending that are identified. The LTO Order is based on the assumption that there are identifiable classes of offenders with offence cycles that have observable cues for whom the risk of re-offending may be managed in the community with appropriate, focused supervision and intervention, including treatment </li></ul>
    15. 15. Jerimiah Johnson <ul><li>On September 26, 2003, the Supreme Court of Canada released its decision in R. v. Jerimiah Johnson. The Supreme Court underscored that: </li></ul><ul><li>A sentencing judge retains the discretion not to impose a dangerous offender designation even if an accused meets all the statutory requirements because the sentence must be appropriate in the circumstance of the individual case </li></ul><ul><li>Sentencing judges must consider treatment and management prospects prior to imposing a dangerous offender designation </li></ul><ul><li>It is only after concluding that either a traditional sentence or a long-term offender designation cannot manage the risk posed that the sentencing judge can designate someone a dangerous offender </li></ul>
    16. 16. Sentence Administration <ul><li>The failure of the government to provide reasonable treatment and management infrastructure cannot result in the offender being designated as a dangerous offender because a sentencing decision must presume the availability of reasonable resources and infrastructure to supervise </li></ul>
    17. 17. Public Pressure <ul><li>Brutal high profile crimes are sensationalized by the media and cause panic in the community </li></ul><ul><li>Fear and a sense of outrage places pressure on all actors in the criminal justice system to restore order; to apprehend and punish offenders both quickly and severely </li></ul>
    18. 18. THE ADVERSARIAL SYSTEM <ul><li>By definition there is both a winner and a loser in an adversarial criminal justice system </li></ul><ul><li>The police build a case against the defendant that must be strong enough to secure a DO Designation or they will be the loser </li></ul><ul><li>Prosecutors play a dual role – and winning is one </li></ul><ul><li>Defence counsel are under-resourced or under committed </li></ul>
    19. 19. The Expert’s Responsibility <ul><li>United States Supreme Court Justice Stephen Breyer noted the pervasive use of expert witnesses in modern litigation: </li></ul><ul><li>&quot;Scientific issues permeate the law. Criminal courts consider the scientific validity of . . . expert predictions of defendants' 'future dangerousness,' which can lead courts or juries to authorize or withhold the punishment of death&quot; </li></ul>
    20. 20. Role in Adversary Proceedings <ul><li>In adversary proceedings the lawyer's function as advocate is openly and necessarily partisan </li></ul><ul><li>4.01 (1) When acting as an advocate, a lawyer shall represent the client resolutely and honorably within the limits of the law while treating the tribunal with candor, fairness, courtesy, and respect </li></ul>
    21. 21. Over Value the Expert <ul><li>The adversary system is probably the best tool we have for detecting overconfidence, self-deception, and dishonesty </li></ul><ul><li>Ironically, it is itself responsible for one common defect, namely, the expert's temptation to identify overmuch with the cause of his 'side’ </li></ul><ul><li>expert witnesses can be &quot;co-opted&quot; </li></ul>
    22. 22. So – what is the problem with that? <ul><li>Science is becoming more complex </li></ul><ul><li>Witnesses remain as fallible as ever </li></ul><ul><li>Lawyers lack the tools to evaluate and challenge </li></ul><ul><li>Opinion (may) have a weight and authority that it may not deserve </li></ul><ul><li>The language of medicine and the law are seldom the same </li></ul><ul><li>Courts lack the skills to decide </li></ul>
    23. 23. OPINION EVIDENCE <ul><li>The role of opinion evidence in fact determination is a controversial one. </li></ul><ul><li>Some of the issues relate to both lay and expert opinion, such as the danger of usurping the fact-finding function and the danger that an opinion will be given too much weight or will be accepted without question. </li></ul><ul><li>Issues relating specifically to expert opinion evidence include the risk that expert opinion will be over- or undervalued. </li></ul><ul><li>The allure of scientific evidence may overwhelm the trier of fact or triers may be irrationally skeptical of social science evidence. </li></ul><ul><li>There is debate about how to deal with novel theories. When is a theory sufficiently reliable and valid to be considered in the fact determination process? </li></ul><ul><li>There is also concern that the costs of hiring an expert witness, may limit access to justice. </li></ul><ul><li>Expert opinion that is biased or partisan may divert the search for truth. </li></ul>
    24. 24. EXPERT OPINION <ul><li>The rules on expert opinion are unstable and there is an ongoing debate about both the role of expert witnesses in fact determination and the appropriate subjects of expertise. </li></ul><ul><li>The leading case on the admissibility of expert opinion is R v. Mohan. </li></ul><ul><li>The accused was charged with sexual assault. </li></ul><ul><li>The defence sought to call a psychiatrist who would testify that the psychological profile of the accused did not fit the psychological profile of the perpetrator of the offence. </li></ul><ul><li>The trial judge held that the evidence was inadmissible and the accused was convicted. </li></ul><ul><li>The Court of Appeal allowed the accused’s appeal, quashed the convictions, and ordered a new trial upon finding that the rejected evidence was admissible. </li></ul><ul><li>The Supreme Court allowed the appeal of the Crown, holding that the expert evidence was inadmissible on the basis that the expert’s group profiles were not sufficiently reliable. In the course of the decision, the court addressed more generally the rule regulating the admissibility of expert opinion. </li></ul>
    25. 25. R v. Mohan <ul><li>Justice Sopinka (Supreme Court of Canada): Admission of expert evidence depends on the application of the following criteria: </li></ul><ul><li>(a) relevance </li></ul><ul><li>(b) necessity in assisting the trier of fact </li></ul><ul><li>(c) the absence of any exclusionary rule </li></ul><ul><li>(d) a properly qualified expert </li></ul>
    26. 26. Social Science Research <ul><li>Social science and actuarial data can provide information on social facts; i.e., facts that are descriptive or causal propositions about persons or things beyond the personal knowledge of the parties or any single witness </li></ul><ul><li>Social facts are a necessary foundation for an understanding of the operation and social effects of a legal rule </li></ul><ul><li>Social science data encompasses both analyses of large databases and clinical observations. It includes both descriptive information such as the statistics published by the Canadian Centre for Justice Statistics and explanatory studies </li></ul>
    27. 27. Misleading Opinions <ul><li>Even honest witnesses who are trying to be objective may not be asked the right questions and may have their testimony filtered or contorted by the advocate </li></ul><ul><li>The expert witness has a duty to educate the trier of fact </li></ul><ul><li>It would be a miscarriage of justice for an individual to be wrongly declared a dangerous offender and wrongly sentenced to a period of indeterminate incarceration. </li></ul>
    28. 28. Appeals <ul><ul><li>To the Provincial Court of Appeal </li></ul></ul><ul><ul><li>Review by the Minister Of Justice (S. 696 Of the Code ) </li></ul></ul><ul><ul><li>This process is slow and the appellant convict is rarely successful </li></ul></ul>
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