In 1986, Daniel Joseph Bruneau sexually assaulted a little girl when she was on her way home from school. In 1988, he choked and killed a young girl because he was angry that she was in the middle of her menstrual cycle. He claimed the choking was an accident. In 2007, he picked up a teenage girl while she was hitchhiking, got her intoxicated, and then choked and sexually assaulted her. In August of 2009, Daniel Joseph Bruneau was labelled a Dangerous Offender. The judge who handed down the Dangerous Offender designation believed that he did not show a reasonable chance of his risk being controlled in the community.1

High Risk Offenders are a very heterogeneous group of offenders: they are all different. They can be murderers, rapists, pedophiles, robbers, and a multitude of other criminals. They are also not ordinary offenders, but those convicted of some of the most heinous crimes. This small group of offenders may never be rehabilitated in the general prison system, and although some may be able to have their risk controlled in the community with extensive supervision, some will never be controlled. These are the offenders that, once released, are the first to reoffend, will reoffend the most, and will not stop without extensive supervision or are separated from society. This paper will define and discuss the laws governing high risk offenders, specifically Dangerous Offenders and Long-Term Offenders.

Dangerous Offenders

What is a Dangerous Offender?

Dangerous offenders (DO) are offenders that have committed serious, often brutal crimes, and pose a serious risk to society.2 These people are habitual offenders, who start offending at a young age, and usually end up with their first adult conviction in their early twenties.3,4 Many offenders who receive the Dangerous Offender designation have victimized children, and this preference towards children highly predicts recidivism.5 Recidivism is another word for reoffending.  The general sentencing practices and lengths do not deter these offenders, and the risk that they will reoffend once released is very great. This is why offenders that are designated as a Dangerous Offender receive an indeterminate (open-ended) sentence.

History of Dangerous Offender Legislation

Dangerous Offender legislation dates back to the early 1900s in Canada. For instance, in 1947, “Habitual Offender” legislation was in place. This legislation allowed the courts to use their discretion to impose a sentence of specific length (determinate) or an indeterminate sentence. To be able to apply the Habitual Offender designation, the offender must have been previously convicted of at least 3 indictable offences and the Crown needed to show a persisting criminal lifestyle.6  An indictable offence is a crime that is more serious in nature, and often involved many aggravating factors. It includes crimes such as treason, murder, crimes of terrorism, alarming the Queen, duelling, voyeurism, and the crimes involving child pornography.

The “habitual offender” legislation was not redrafted until 1997 with Bill C-55, and this is the legislation that is still in place today. Bill C-55 streamlined the procedure for designating a person as a Dangerous Offender, and made it much more efficient and inclusive. For example, the Long Term Offender designation and Long Term Supervision Order were included as a means to address offenders who did not meet the criteria outlined by the Dangerous Offender legislation but nonetheless pose a substantial risk to society and have a higher risk of recidivism (reoffending). It also extended the initial review for parole from three to seven years, and then every two years after that initial seven years.7

Dangerous Offender Legislation

The definition of a Dangerous Offender is located in § 753 of the Canadian Criminal Code.8  To be declared a Dangerous Offender, the offender must have been convicted of serious personal injury offences (i.e. indictable offences, and indictable offences involving sexual acts) and the offender must pose a serious risk to the safety of other people in the community. To decide if an offender poses a serious risk, courts look at the following:

  • Pattern of repetitive criminal behaviour by the offender
  • Failure of offender to control their behaviour such that it may result in the death or injury (physical or psychological) of other persons
  • Pattern of persistent aggressive behaviour with indifference to the consequences of their behaviour
  • Any behaviour associated with the offence of such a brutal nature that indicates that future control is unlikely using regular standards

An offender can also be declared a Dangerous Offender if they are convicted of serious personal injury offences with a sexual aspect, and have shown failure to control their sexual impulses and that this failure to control these impulses is not likely in the future. A personal injury offence includes the following:

  • sexual interference
  • invitation to sexual touching
  • sexual exploitation
  • incest
  • attempt to commit murder
  • discharging firearm with intent
  • assault with weapon or causing bodily harm
  • aggravated assault
  • sexual assault
  • sexual assault with weapon, threats to third party or causing bodily harm
  • aggravated sexual assault
  • kidnapping

In 2008, Bill C-2 came into effect with amendments to the Dangerous Offender legislation in the Canadian Criminal Code, called the Tackling Violent Crime Act.9 Some of the major amendments included better protection for youth from adult sexual predators by increasing the age of protection for sexual activity to 16 years old, and more effective sentencing and monitoring to prevent dangerous high-risk offenders from offending again. These amendments were a step forward in protecting the public, as well as making the process more effective and efficient. Protection, efficiency and effectiveness are increased in a major way: these amendments provide for a “three strikes, you’re out” type of rule for dangerous, high-risk offenders. This means that there is a presumption of dangerousness after 3 convictions for primary designated offences, which are listed above.10 Once an offender receives 3 convictions for primary designated offences, as listed above, they will be presumed dangerous, and it is up to the defense to show, on a balance of probabilities, that this is not the case.

According to Correctional Service of Canada, between 1978 and April 2010, 522 offenders received the Dangerous Offender designation.  As of 2011, there is only one woman designated as a Dangerous Offender11, but there are an overwhelming number of Aboriginal people with this designation.12

If the Crown decides to pursue a Dangerous Offender designation, they have to declare their intentions at the trial where the offender may receive their third conviction. If that third conviction arises, based on the presumption of dangerousness, they need to order a 60 day psychiatric assessment of the offender. Based on the assessment, the Crown must then decide whether or not they wish to continue with the application.13  The application for Dangerous Offender is submitted before sentencing or within 6 months after the sentence has been handed down. The court needs to determine if the risk to public protection is severe enough to warrant the indeterminate sentence that comes along with the Dangerous Offender Designation. If an offender released on parole with this designation breaches the conditions of release, there will be a hearing. This hearing will result in an indeterminate sentence unless the court feels that their risk to recidivate with violent offences will be controlled with a lesser sentence.

Implications of the Dangerous Offender Designation

A Dangerous Offender designation means the offender will spend the remainder of their life in prison. Due to the severity of such a designation, it is not used often unless it is felt that the offender cannot control their criminal urges, nor can they be managed within the general prison population with the general treatment programs. These offenders are believed to be a great risk to the safety of the public if released. This is a very serious designation, and has many implications. An offender who is designated a Dangerous Offender will never be released from prison, unless the National Parole Board decides that his risk can now be managed in the community.

Dangerous Offenders in Canada

Paul Bernardo – Convicted of raping and killing multiple women, beginning in 1987 and ending in the early 1990s, with his wife, Karla Holmoka. He has confessed to a number of rapes, including one for which another man was serving time.

Ralf Zonta – Convicted of multiple sexual assaults and molesting children aged 4 to 11 years. He has 6 convictions, beginning in the early 1990s and extending to 2008, and is currently trying to have his Dangerous Offender designation overturned.

Shawn Gale – in 2008, pled guilty to 17 offences, including robbery, assault causing bodily harm, aggravated assault, kidnapping and grand theft auto, and was sentenced as a Dangerous Offender in October of 2009.

Kamal Meddane – In 2009, received Quebec’s first youth designated a Dangerous Offender, for the rape of 5 young girls, while on a restraining order and on probation.

Long-Term Offenders

The Long-Term Offender (LTO) status is relatively new, being drafted into the Canadian Criminal Code in 1997. This provision was developed to address those offenders who did not fall under the Dangerous Offender designation but were nonetheless dangerous and posed a high risk to public safety and a high likelihood of reoffending.

Long Term Offender Legislation

The criteria for finding an offender to be an LTO can be found in § 753.1 of the Canadian Criminal Code. Upon application of the Crown, a court may declare a criminal a Long-Term offender if:

  • It would be appropriate for a sentence of two years or more for the offence the offender is convicted of,
  • There is a substantial risk of reoffending, and
  • There is a reasonable possibility of eventual control of the offenders risk in the community.

To find that an offender poses a substantial risk, there is a list of criteria the court must feel is met:

  • The offender has been convicted of one of the following offences:
    • Sexual interference, exploitation, and invitation to sexual touching
    • Making, possessing, accessing, or distributing child pornography
    • Luring a child
    • Exposing self to a child
    • Sexual assault, sexual assault with a weapon, and aggravated sexual assault
  • While committing an offence, displaying serious conduct of a sexual nature, showing likelihood of future similar offences
  • Pattern of repetitive behaviour showing likelihood of causing death or injury (physical or psychological) to another person

If the Crown is successful in their application, the offender will be sentenced for the crime(s) for which they are convicted, and will also receive a Long-Term Supervision Order not exceeding 10 years post release. This means that the offender will be supervised in the community for a maximum of 10 years after their date of release. The National Parole Board imposes a specific set of conditions on the offender, including keeping the peace and a prohibition from possessing firearms.14 There are other conditions that can be imposed as well, including things such as abstaining from using drugs or alcohol, and staying away from children, if their offence was against children. Note that an offender that has received a life sentence cannot be found a Long-Term offender.

Again, like Dangerous Offenders, Long-Term Offenders have a high risk for recidivism, usually around 80% or higher.15 While Long-Term Offenders still pose a substantial risk to public safety, the risk posed by these offenders have a possibility of being managed in the general prison population and programs. If, while out of prison on their Long-Term Supervision Order, they breach their conditions, a hearing will be held. If a court finds their risk can no longer be managed in the community, an indeterminate sentence may be imposed.

Many of the offenders designated as a Long-Term Offender are incarcerated for sex offences, but do not meet the Dangerous Offender criteria. The reason this is the case is because the key criteria for an LTO designation is eventual control of risk in the community and treatability.16 Even though many Long-Term Offenders have committed sex offences, with treatment their risk has the possibility of being controlled. In early 2005, there were 300 offenders with a Long-Term Offender designation: 187 of them were incarcerated at the time and the remainders were serving Long-Term Supervision Orders in the community.17

Comparison of LTO and DO

Long-term Offenders share some similarities with Dangerous Offenders, in that they are both habitual offenders. Both types of offenders typically start committing crimes in their youth and receive their first adult conviction in their early to mid twenties. Usually, they are convicted of offences involving a sexual element, with children or teenaged victims.18,19

The Crown must order a 60 day psychiatric assessment of the offender if they are planning to apply for either Long-term offender or Dangerous offender status, and then decide if they will pursue the application. The assessment may indicate a possibility of eventual control of the offender’s risk in the community, in which case a Long Term Supervision Order may be possible instead of a Dangerous Offender designation. This is similar to Dangerous Offender applications; however they need the consent of the Attorney General to pursue the application. If the Crown has applied and failed to have an offender designated a Dangerous Offender, they can subsequently apply for Long-Term Offender status.

The main difference between a LTO and a DO is that there is a possibility that a LTO’s risk could be controlled in the community at some point in time, whereas it is the belief that a DO will never be able to control their risk through general means. Another difference is the length of the sentence. DOs are given indeterminate sentences, which sentences with no end date, whereas LTOs are given sentences with a definite end date and then a 10 year supervision order.

Conclusion

High risk offenders commit a great deal of different kinds of offences. Dangerous Offenders and Long-Term Offenders have been declared as either too dangerous to be out in the community at all, or manageable with long-term supervision in the community. Often, their crimes are against children, putting them at a higher risk to reoffend if let out of prison and only supervised for a short time. The new legislation, Bill C-2 that came into effect a few years ago was advancement in the direction of public protection. No longer will it be as simple for criminals with multiple convictions to get out of prison after only a short time. With this “three strikes” idea, those convicted of at least 3 primary designated offences will be presumed dangerous and have to show otherwise. Applying for this designation could greatly reduce the number of victims affected by these horrible crimes. It does not bring back loved ones or erase the hurt and damage that these offenders have caused, nothing can. It does, however, help to keep dangerous criminals in prison where they cannot hurt people in the public again.

1 Fraser, Keith. (August 6, 2009). BC man who sexually assaulted hitchhiker declared dangerous offender. The Province.

2 Trevethan, S., Crutcher, N., and Moore, J. P. (2002). A profile of federal offenders designated as dangerous offenders or serving long-term supervision orders. Research Branch, Correctional Service of Canada.

3 Ibid.

4 Solicitor General Canada, May 2001. A Handbook for Criminal Justice Professionals.

5 Bonta et al., 1996.

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

7 Valiquet, Dominique (Revised November 4, 2008). The dangerous offender and long-term offender regime. Library of Parliament.

8 Criminal Code, R.S.C. 1985, c. C-46.

9 Bill C-2 – Tackling Violent Crime Act

10 Valiquet, Dominique, Revised November 4, 2008.

11 Stone, Laura (October 14, 2011). Women behind bars: Canada’s only female dangerous offender. Calgary Herald.

12 Trevethan et al (2002).

13 Valiquet, Dominique, Revised November 4, 2008.

14 Public Safety Canada. Long Term Offender Designation. Last retrieved September 2016 from https://www.publicsafety.gc.ca/cnt/cntrng-crm/crrctns/protctn-gnst-hgh-rsk-ffndrs/lng-trm-ffndr-dsgntn-eng.aspx .

15 Trevethan et al., 2002.

16 Ibid

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

18 FORUM on Corrections Research. Volume 4, Number 2, 1992.

19 Trevethan et al., 2002.