INTRODUCTION

Dangerous offenders make up a small minority of convicts. The justice system considers them to be special cases and, consequently, treats them differently than the average offender. Regular sentencing is considered ineffective for  these individuals; they are not deterred by the normal punishment, nor are they likely to be reformed. These individuals pose a serious hazard to the physical and psychological well-being of society.

Dangerous offender legislation was created to protect the public from the most violent and dangerous criminals. In these cases, sentences are indefinite; the offender must remain in prison until he or she no longer poses a risk to the public. Usually, this means the offender remains in prison for life. Due to this indeterminate sentencing, the dangerous offender legislation is controversial, and considered by some to infringe upon charter rights. While this is a concern, supporters advocate it as necessary in special cases to protect society.

History of Dangerous Offender Legislation

Dangerous offender (DO) legislation was first introduced in Canada in 1947 and was then known as the Habitual Offender Provision. The Habitual Offender Provision was based on similar British legislation enacted in 1904 that targeted “persistent dangerous criminals engaged in the more serious forms of crime”. Canadian legislation, however, took the provision further by allowing courts the discretion to impose either a determinate or indeterminate sentence. To be considered a ‘habitual offender’, the offender had to have been convicted of 3+ indictable offences and had to be leading a persistent criminal lifestyle.

In 1948, further provisions were created to allow indeterminate sentences to be imposed on ‘criminal sexual psychopaths’. This wording proved problematic and was changed to ‘dangerous sexual offenders’ in 1960. This legislation was imposed on individuals who were convicted of attempted or actual assault, rape, carnal knowledge, buggery, beastiality, or gross indecency. An individual could be deemed a dangerous sexual offender after only one conviction, but had to appear highly dangerous based on the circumstances as well as their personal history.

In 1969, a report by the Canadian Committee on Corrections, known as the Ouimet Report, found that the habitual offenders legislation was not effective. Following this finding, a major re-drafting took place in 1977 with the passage of Bill C-51. This enacted a new part of the Criminal Code, section XXIV, which contained the Dangerous Offender Provisions. Under these provisions, an individual could be deemed a dangerous offender for “serious personal injury offences”, either sexual or non-sexual in nature. An individual who was found to be a dangerous offender could be sentenced to a determinate or indeterminate period of incarceration in lieu of any other charge; the dangerous offender status was enough in itself.

These provisions remained relatively unchanged until August 1997 when Bill C-55 made a few amendments pertaining to dangerous offenders in the Criminal Code. These changes were meant to streamline the dangerous offender provision to make it more efficient, and to strengthen the measures used for dealing with these types of offenders. The amendments included changing the parole period from 3 years to 7 years, requiring only one expert (instead of the previous 2) to give evidence at a DO application, and allowing prosecution 6 months after the conviction and sentence had been handed out to make a DO application. Bill C-55 also introduced the “long term offender” definition, which pertains to offenders who do not fall under the dangerous offender category but still present a considerable risk of re-offending, “long-term supervision orders”, which can be up to 10 years in length and begin upon the completion of the sentence, and outlined the new “fear of personal injury offence”.

Further amendments took place in 2008 after the royal assent of Bill C-2, also known as the Tackling Violent Crime Act. Bill C-2 aims to better protect the public by declaring more offenders as ‘dangerous’, and keeping them behind bars longer. To do this, Bill C-2 established the presumption that an individual who has been convicted of three serious crimes that are subject to a minimum sentence of 2 years is to be considered a dangerous offender. The designation is not automatic, but Bill C-2 shifted the onus onto the offender; it is no longer the Crown attorney’s job to prove that an offender is dangerous, but rather the offender’s job to prove that he is not. It is, however, up to the Crown to declare in open court whether it intends to pursue a DO application. Bill C-2 was passed in hopes of increasing the number of DO applications.

National Flagging System

The National Flagging System (NFS) was established on March 10, 1995 to track high-risk violent offenders– individuals who may be candidates for dangerous offender or long term offender applications. Background information on these flagged offenders is collected and stored in a central location to be readily available if needed. The goal of the NFS is to help the Crown to deal more effectively with high-risk offenders and to prevent these high risk offenders from falling through jurisdictional gaps. NFS coordinators are located in all Canadian provinces and territories so that when an offender re-offends anywhere in Canada, the coordinator is able to send all information pertaining to the individual to the prosecutor or investigating police agency. Since its establishment in 1995 to 2006, the NFS had flagged more than 3000 high-risk violent offenders.

Criminal Code: Application and Designation

The Canadian Criminal Code, § 753, lists the following provisions that are required to declare an individual a dangerous offender:
753. (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

  1. 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
    1. a pattern of repetitive behaviour 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 behaviour 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 behaviour,
    2. a pattern of persistent aggressive behaviour 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 behaviour, or
    3. any behaviour 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 behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or
  2. 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.

Application for long-term offenders can be found under § 753(1)(2):

753.1

  1. Application for finding that an offender is a long term offender– 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:
    1. it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted.
    2. there is a substantial risk that the offender will reoffend; and
    3. there is a reasonable possibility of eventual control of the risk in the community.
  2. The court shall be satisfied that there is a substantial risk that the offender will re-offend if
    1. the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching), or 153 (sexual exploitation), or subsection 163.1(2) (making child pornography), subsection 163.1(4) (possession of child pornography), subsection 163.1(3) (distribution etc. of child pornography), subsection 163.1(4.1) (accessing child pornography), subsection 171.1 (luring a child), subsection 173(2) (exposure) or section 271 (sexual assault), or has engaged in serious conduct of a sexual nature in the commission of another offence of which the offender has been convicted and;
    2. the offender:
      1. 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;
      2. 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 offence.

Dangerous Offenders in Canada

Profile

As of March 2010, there are 331 individuals labelled as dangerous offenders in Canada. At this time, all of the dangerous offenders are men, and approximately 40% of them are of Aboriginal origin. The vast majority of dangerous offenders are in prison for sexual offences and most of them served prison sentences before reoffending and being deemed dangerous offenders. Although most dangerous offenders start their criminal careers at an early age, most are not designated until later in life, usually around the age of 40.

Offenders tend statistically to be unemployed, single, and hold only a level of education below grade 10. Studies using the Psychopathy Checklist-Revised (PCL-R) show that dangerous offenders tend to live parasitic lifestyles and engage in promiscuous sexual behaviour; this may be, in part, why so many dangerous offenders are sex offenders. Compared to the average offender, dangerous offenders have more psychopathic traits and tend to have violent family backgrounds and problems both at school and at home during childhood. Studies using the PCL-R and the VRAG (Violence Risk Appraisal Guide) show that dangerous offenders are at a high risk (as high as 98%) for violent recidivism.

Victims

Dangerous offenders tend to target children, the elderly, or the disabled. Females tend to be victimized more than males, however pedophilia makes up a large percentage of dangerous sex offenders and young boys are also targeted. Dangerous Offenders tend to have more victims (3+) than the average offender and are known to show more brutality and violence.

Statistics

Dangerous offender applications are becoming more common in court systems across Canada. Ontario holds the highest number of dangerous offenders, 159, followed by British Columbia at 111. According to Corrections Canada, there have been 405 dangerous offenders since 1977. As of May 2004, fifteen dangerous offenders were on parole, but only 26 of the 405 individuals have been released back into the community where they are under supervision and will remain so for the rest of their lives. These released individuals represent only a small few, the dangerous offender designation can be compared to a life sentence; the likelihood is that an individual deemed a dangerous offender will die in jail.

Examples

The following is a short list of examples of dangerous offenders:

  1. Paul Carlson – in 1980, he raped and sodomized a nurse at knife point. In 1984, he molested 3 girls and was sentenced to 9 years. He was declared a dangerous offender in 1984, but his sentence was not changed. He was charged after writing threatening letters to Crown prosecutors in which he described future acts of violence. He was again declared a dangerous offender in 1992 and given an indefinite prison term. He was considered so dangerous he spent 2 years in solitary confinement.
  2. Robert Noyes – former school principal, in 1985 he was convicted of 31 counts of sexual abuse against 19 school children aged 6-15. He was diagnosed a homosexual pedophile and given an indefinite term of incarceration in 1986. At his hearing, experts testified that he could never be cured of his compulsion to molest children.
  3. John Oughton – known as the “Paper Bag Rapist” because he would put a paper bag over the head of his victims, he committed his heinous crimes over an 8 year period. In 1987, he was convicted of 14 sex related offenses and given an indefinite term.
  4. Michael Mundy – Convicted in 1988 of sexually assaulting a 15 year old mentally challenged girl and given an indefinite term. He had previously been convicted of 4 assaults on women from 1979-1982. He has been diagnosed as a psychopath.
  5. Wayne McConnell – molested over 170 children over a 35 year period. In 1988, he was convicted of sexually assaulting 2 girls and declared a dangerous offender.
  6. Trevor Peters – tortured a woman with burning cigarettes, stabbed her to death, and had sex with her corpse. In 1991, he pled guilty to 2nd degree murder, 4 counts of aggravated sexual assault, and attempted murder. He is considered a sexual psychopath. He was given an indefinite term in 1992.
  7. Gary Walker – admitted to molesting over 200 children but the actual number may exceed 1500. He was convicted of molesting almost 50 children during his 36-year reign of terror. Like many pedophiles, Wright calculatingly sought positions that would allow him access to children, such as a police officer, a scout master, and a hockey coach.
  8. Thomas Svekla – arrested in 2006 at the age of 40 for the murder of his girlfriend, but is suspected of killing as many as twelve prostitutes. Svekla had been sexually assaulting women since the age of 14, his victims include girlfriends, friends, and two young girls aged 5 and 9.
  9. Christopher Edward Newhook – has about 50 criminal convictions and has spent half of his life behind bars. Newhook is a white supremacist who has been found guilty of numerous violent assaults on visible minorities. He was declared a dangerous offender in March 2010 after a case in which he stabbed an individual in the head after a rent dispute.
  10. Leo Teskey – Spent more than nine years behind bars before being declared a dangerous offender after an attack that left a 61 year old man bedridden and unable to speak or move. Teskey has more than 37 prior convictions, including one for assaulting a 2 year old boy and shooting a police officer in the head.

It is also expected that “The Pig Farm Killer”, Robert Pickton, will be designated a dangerous offender. Pickton admitted to an undercover police officer that he was one away from 50 kills, however he has only been charged for a handful of these murders. If convicted on all counts, Robert Pickton will be Canada’s worst serial killer. Lack of DNA evidence for the majority of the missing women has created numerous problems in this case. It is alleged that Pickton fed the bodies to his pigs and possibly combined human flesh with ground pork to feed to himself and his guests.

Criticisms

The dangerous offender legislation has received much criticism and is considered by some to be unconstitutional and unfair. There are concerns that these provisions are in violation of the Charter of Rights as well as worries about the new legislation set out in Bill C-2 which puts the onus on the offender. The Charter sections cited are sections 7 – life liberty and security of the person, 9 – the right not to be arbitrarily detained, 11(d) – the right be innocent until proven guilty, and 12 – the right not to be subjected to cruel and unusual punishment or treatment. The Supreme Court has addressed all of these accusations and has declared the dangerous offender legislation to pass all charter tests so long as the offender has access to parole hearings.

Bill C-2 has also faced some controversy for putting the onus on the offender. Some argue that this new protocol makes it easier for the court system to designate offenders as dangerous offenders which will clog up the system. Another concern is the risk of designating the wrong people. This new shift in the onus, which asks for the offender to prove why they are not dangerous, has been described as “imposing an impossibility”. Professionals in criminal justice are worried that dangerous offender legislation has likened itself to an ‘assembly line’ instead of the ‘obstacle course’ that it should be.

In the past several years there have been a few court cases in which the Crown has tried to prosecute repeat drunk drivers as dangerous offenders. Some argue that a drunk individual behind the wheel of a vehicle is no less dangerous than an individual with a gun. Despite this reasoning, the Crown has been unsuccessful and none of the applications have gone through. So far, the toughest penalty handed out for drunk driving was a life sentence given to Roger Walsh in 2009 after hitting and killing a woman in a wheelchair. At this time, prosecutors from Ontario, Alberta, Québec, and Nova Scotia have been unsuccessful with their application to have repeat drunk drivers deigned as dangerous offenders.

Conclusion

Dangerous offender legislation presents a balancing act between the rights of the offender and the society’s safety. By upholding the dangerous offender provisions, the Supreme Court of Canada has decided that public safety can outweigh the rights of a convicted offender, even the applicability of the Charter of Rights and Freedoms, in extreme cases. There are offenders who cannot be deterred or reformed, who spend their whole lives harming others. These are the worst of the worst, and it is to deal with them that the dangerous offender provisions were intended. The definition of a dangerous offender has expanded and the methods of its application changed over the years, but DO legislation remains a special case of law used to deal with a special sort of criminal.

Canadian Charter of Rights and Freedoms

Candian Criminal Code, 2009

CBC News. “Declare Repeat Drunk Driver a Dangerous Offender: Crash Victim.”  April, 2009. http://www.cbc.ca/canada/nova-scotia/story/2009/04/02/ns-naugle-charges.html

http://failover2.cbc.ca/beta/news/canada/nova-scotia/declare-repeat-drunk-driver-a-dangerous-offender-crash-victim-1.811342

CBC News. “Newhook Declared Dangerous Offender”. March 2010. http://www.cbc.ca/news/canada/nova-scotia/newhook-declared-dangerous-offender-1.949012

CBC News. “Reverse Onus for Dangerous Offenders.” May 2010. http://www.cbc.ca/news/background/crime/dangerous-offenders.html

CBC News. “Teskey a Dangerous Offender: Alberta Judge.” July, 2010. http://www.cbc.ca/news/canada/edmonton/teskey-a-dangerous-offender-alberta-judge-1.889039

Correctional Services Canada. “Research Report”. December, 2002. http://www.csc-scc.gc.ca/text/rsrch/reports/r125/r125-eng.shtml

Hanson, Karl. S. & Harris, Andrew. “Dynamic Predictors of Sexual Recidivism.” 1998. http://www.static99.org/pdfdocs/hansonandharris1998.pdf

Library of Parliament. “Dangerous Offender and Long-Term Offender Regime.” November, 2008. http://www2.parl.gc.ca/content/LOP/ResearchPublications/prb0613-e.htm

Parliament of Canada. “Bill C-27: An Act to Amend The Criminal Code.” January 2007. http://www2.parl.gc.ca/Sites/LOP/LegislativeSummaries/Bills_ls.asp?lang=E&ls=c27&source=library_prb&Parl=39&Ses=1#bthedangerous

Public Safety Canada. “Dangerous Offender Designation” September, 2016. https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/protctn-gnst-hgh-rsk-ffndrs/dngrs-ffndr-dsgntn-eng.aspx

Public Safety Canada. “Frequently Asked Questions About the Release of Offenders.” September 2016. https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/protctn-gnst-hgh-rsk-ffndrs/faq-eng.aspx

Public Safety Canada. “The National Flagging System: Identfying and Responding to High-Risk and Violent Offenders 2004-04.” September 2016. https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntnl-flggng-systm/index-en.aspx

CBC News. “Repeat Drunk Driver Not A Dangerous Offender.” September 2009. http://www.cbc.ca/news/canada/montreal/repeat-drunk-driver-not-a-dangerous-offender-1.787003

Serial Killers. “Robert William Pickton.” 2009. http://www.serialkillers.ca/robert-william-pickton/

Zanatta, Robert. G.“Risk Of Violent Recidvism: A Comparison of Dangerous and Non-Dangerous Offenders”. http://ir.lib.sfu.ca/bitstream/1892/8470/1/b18337521.pdf