#21 Fact Sheet in a series of fact sheets that examine questions frequently asked about the criminal justice system

A Publication of the John Howard Society of Ontario January 2005 The Law and High-Risk Offenders

The risk posed by offenders who Dangerous Offender and Long-Term 1997, a person found to be a DO must appear to be dangerous is understandably Offender Provisions be given an indefinite , meaning a concern to everyone in the community. that the offender can be held in prison for Certain high profile cases involving Like all measures described herein, the life unless the National Board can either the release of or re-offending by an Dangerous Offender and Long-Term be convinced that he no longer poses an offender deemed as high-risk and the Offender provisions of the Criminal undue risk to the community. Even if concentrated and sensationalist media Code subject individuals to punishments granted release, a person serving an attention surrounding such cases often by way of loss of or restrictions on their indefinite sentence will be under leaves the impression that the law which liberty not for what they have done but on supervision for the remainder of his life could be used to restrain these offenders the basis of what they might do in the and always subject to re-incarceration either does not exist or is not tough future. These measures, however, are the for breaches of conditions of release. enough. It is not surprising, therefore, most severe and carry with them the The Crown must make the application that there are repeated calls for harshest punishments. after the for the serious parliament to take action - usually in the personal injury offence(s) and before form of creating more laws - to ensure Dangerous Offender sentencing. An application may be made that the public is protected from such after sentencing but no later than six individuals. Part XXIV of the Criminal Code months after imposition and only when What are the laws governing high-risk permits the Crown to apply to the court to relevant was not reasonably offenders? How and when can these have a person who has been convicted of available at the time of imposition of measures be applied? How frequently a serious personal injury offence (the sentence. are they used and in what circumstances? meaning of which is defined in the law) A DO hearing is held with a judge (no What evidence is there as to their declared a Dangerous Offender (DO). jury) who considers evidence relevant to effectiveness? This Fact Sheet will Under amendments to these provisions in the application, such as victim impact present basic information as to the statements, court transcripts, evidence of nature and application of the legislation character and, in particular, assessments currently available and propose the need of mental health and psychological for solutions beyond just creating more functioning. For a finding of DO, the laws. Crown must prove that the offender The Fact Sheet excludes information poses a serious threat to the safety of pertaining to the law relating to mentally others by virtue of: disordered offenders found to be unfit to a) a pattern of unrestrained behaviour stand or not criminally responsible. that is likely to cause danger or, a pattern While relevant to this question, it of aggressive behaviour with indif- demands its own discussion and will be ference to the consequences of this the subject of a future Fact Sheet. behaviour or, the behaviour is of such a brute nature that ordinary standards of

The John Howard Society of O ntario 1 High-Risk O ffenders January 2005 restraint will not control it; or, just been convicted. b) conduct in sexual matters that Dangerous Offenders The process can take place in either of demonstrates failure to control sexual (as of 26/09/04) two ways: a stand-alone application and hearing, or a decision made by the judge impulses. • 410 designated since 1978 to find the person a LTO in a DO There are three possible outcomes: (Ontario: 162; B.C.: 110; hearing. A LTO hearing is similar to the 1) if the offender meets the criteria and Alta: 32; Sask.: 29, Que.: 28; DO hearing described above - by judge is found to be unlikely to benefit from N.S. and Nfld : 14; Man.: 10; alone with relevant evidence presented, treatment and therefore the only way to N.B. and NWT: 5; Yukon: 1) such as victim impact statements, court manage the risk is through an indefinite • 1978 to 1992: average 9 transcripts, evidence of character and, in sentence, he will be declared a Dangerous designations a year particular, assessments of mental health Offender and given an indefinite 1993 to 2003: average 25 a year and psychological functioning. sentence; • 331 “active”( those deceased are For a finding of LTO, the court must 2) if the person is not found to be a DO, “inactive”) be satisfied that there is a substantial risk the judge may find the person to be a • 314 incarcerated of re-offending by virtue of: Long- Term Offender - LTO (see next • 17 released a) a pattern of repetitive behaviour section) and sentence accordingly, or can (1 deported, 16 under supervision on showing a likelihood of causing death or order a separate hearing for that purpose; parole) 3) if found to be neither a DO or a LTO, injury or severe psychological damage to the offender will be given the sentence Source: Public Safety and Emergency others; or, for the serious personal offence(s) of Preparedness Canada b) conduct in any sexual matters which he was convicted. showing a likelihood to cause injury, Because of legislative amendments in produce false positives (those who are pain or evil to others through similar 1997, those found to be a DO will serve identified as dangerous who do not offences. more time before they are first eligible for subsequently behave violently). The court must be satisfied that there full parole. The first opportunity for a full The data show variation in both time is a reasonable possibility of eventual parole application was lengthened from and place in the use of the DO legislation control of that risk in the community. three years to seven years at that time. (see box this page). By far, the greatest Once declared a LTO, the person first The data on Dangerous Offenders show users of the DO legislation have been must serve the full sentence of the dire consequences of the designation Ontario and B.C. - two-thirds of the , including any period of in terms of the possibility of release (see designations have come from these two conditional release, and then start their box this page). A significant number die provinces. In contrast, only 7% of the Long-Term Supervision Order (LTSO). in custody. Few are released on parole. total designated are from Quebec. Also, The person is supervised by a parole Data and research identifies concerns the number designated has increased officer of the Correctional Services with respect to how the legislation is dramatically in the past decade. Canada and subject not only to the applied. Some research suggests that standard conditions but also to factors other than risk determine whether Long-Term Offender specialized conditions and close a DO application is made, such as supervision. A breach of conditions has community sentiment or local sensitivity First introduced by way of amendment very serious consequences - a sentence of to a particular offender, or the to the Criminal Code in 1997, this up to 10 years imprisonment could be inclinations of a particular Crown measure was designed as a mechanism imposed for refusal or failure to comply attorney (Webster and Dickens 1983). for managing some offenders, primarily with the order. Factors other than risk, such as the sex offenders, who, while deemed to be a The data on Long-Term Offenders (see attractiveness of the offender, can affect high risk for re-offending, do not meet the box page 3) show significant growth in whether the application is successful criteria for DO designation and there is the use of this measure by the courts. (Esses and Webster 1988). The fact that evidence that the risk could be effectively There are now on average over 40 the vast majority - over 80% - are sex controlled in the community under successful LTO applications across offenders (Trevethan, Crutcher and supervision after a sentence of Canada per year and this number is Moore 2002) suggests the import of these incarceration. A finding of Long-Term expected to grow. Most of the findings. Further, there is great debate in Offender (LTO) permits the judge to supervision orders - 70% - are for ten the literature about the assumption that impose a period of supervision not years, the maximum period allowed the prediction of violence can be exceeding 10 years following the under the law. While most of the orders achieved with any degree of accuracy, completion of the sentence for the are against sexual offenders (about 90%) recognizing that any prediction methods offence(s) of which the individual has as originally intended when the

The John Howard Society of O ntario 2 High-Risk O ffenders January 2005 legislation was drafted, successful orders generally to restricting movement, i.e. have also been gained against those Long-Term Offenders staying away from playgrounds, and convicted of , domestic and (as of 19/09/04) usually include reporting to a officer and/or the police. The order is impaired driving. • 279 Long-Term Supervision Orders At this point, there does not appear to (LTSO) imposed since provisions renewable for additional periods of up to be any research available as to the enacted on August 1, 1997 one year. Here again, the penalty for non- effectiveness of this measure. There is • 95 imposed during initial 47 month compliance is significant - up to two growing concern about the nature and period; 184 imposed during latter years in prison. extent of the resources required to period (approximately 40 months) This measure is increasingly being supervise some of these individuals in the • 196 for the maximum 10 year used with those individuals who have community, particularly those with LTSO period) been detained until the end of their significant mental health problems. • 271 in federal custody (6 deceased, 1 completed LTSO, 1 order sentence and are being released from prison without supervision. If the Detention Provisions of the Corrections removed on appeal) offender’s destination is known prior to and Conditional Release Act (CCRA) • 175 incarcerated release, the police service in that area • 96 on supervision in the may connect with the individual in Typically, federal offenders are community (18 on conditional prison, inform him of their intent to seek released at two-thirds of their sentence release related to their sentence) under supervision until the end of their an 810.2 order upon his release and sentence as a means of meeting the Source: Public Safety and Emergency attempt to design with him a set of objectives of reintegration. However, Preparedness Canada conditions relevant to his risk and need the CCRA was amended in 1987 to areas with appropriate community permit the National Parole Board (NPB) likely to be referred and detained) than the resources available. However, factors to order offenders, who they believe to be risk of violent re-offending. There is no such as lack of expertise and likely to commit an offence causing death research that demonstrates its unavailability of resources often can or serious harm, a sex offence involving effectiveness as a crime control impact the manner in which this process a child or a serious drug offence before mechanism. is implemented, limiting its potential the expiration of their sentence, detained effectiveness. until the very end of the sentence. At the Judicial Restraint Orders (“810's”) It is difficult to comment more on the end of their sentence, these individuals use of this measure due to the lack of are released without the benefit of Among the amendments made to the research either relevant to outcome supervision. The short-term nature of this Criminal Code in 1997 was the addition (effectiveness) or even of a descriptive proposed solution to the release of high- of Section 810.2 that permits courts to nature (quantitative, best practices) of risk offenders and the absence of issue recognizance orders for individuals 810.2 orders in Canada. community supervision with those who who present a danger of committing a would appear to need it the most have "serious personal injury" offence (the Laws been the major criticisms of this measure. meaning of which is defined in the Further, it has precipitated the need for Criminal Code under the dangerous Ontario’s sex offender registry has other measures (i.e., 810's and offender provision). Essentially, these been in force since April 2001. Under community notification - described in orders function as peace bonds similar to the law establishing the registry, any following sections). those used in domestic violence cases. Ontario resident convicted of a criteria This measure is used with some The applicant (usually the police) must offence defined in the legislation (very frequency and the vast majority of those establish a reasonable likelihood that the broad range from relatively minor, such who are referred for detention review are offender will commit a serious offence of as exposure, to the most serious offence detained. From 1991-92 to 2003-04, a violent or sexual nature. Individuals in this category, aggravated sexual there have been 3,733 detention orders who fear for their safety may also make assault) on or after the day the law came (an average of 287 per year). Over 90% application. The burden of proof is not as into force or serving a sentence on that of those that have been referred to NPB high as for a dangerous offender day must register. This also includes for detention review are detained. Early application. those who are found not criminally research (Grant 1997) suggested that the The judge, once satisfied that the risk is responsible, those given an absolute or decision to refer for detention and to real, may require the offender to enter conditional and young detain may be based more on the nature into a recognizance with conditions for up offenders given an adult sentence. of the offence (sex offenders are more to one year. The conditions are geared Registration means reporting to the

The John Howard Society of O ntario 3 High-Risk O ffenders January 2005 police within 15 days of any of the for providing only illusions of public What’s needed: More real solutions, following: the relevant court decision, safety and for focussing time, effort and not more laws release from prison, change of address, resources away from those measures becoming a resident of Ontario or prior to which research has shown can reduce re- We currently do have laws that allow ceasing to be a resident - and annually offending (see Fact Sheet #16). us to detain, contain and label, even thereafter. They must provide the publicly identify, offenders who are required information (name, date of birth Community Notification deemed to be high risk of committing current address, current photograph and serious offences. However, we must sexual offence). Registered individuals Federal prison officials are required by recognize that these are responses to our would be required to report for 10 years the CCRA to notify the police of the fears rather than real solutions. for a less serious offence and life for release of an offender deemed to be high Rather than simply continuing on this those more serious or if convicted of risk. Sometimes this can result in punitive course, we need to be asking for more than one of any listed offence. The “community notification” - typically a the evidence of the effectiveness of the penalty for non-compliance is up to two media release by the police containing measures we now have in place. Further, years less a day imprisonment and a fine basic information about a particular we should be looking in other directions, of $25,000. At this point, access to the offender, including a photograph - which such as: registry is limited to criminal justice is permitted by the provincial legislation, • available and accessible treatment officials. There has been no evaluation of the Police Services Act. This Act, as resources in correctional facilities and the Ontario registry to determine its amended by the 1997 Ontario Community in the community even beyond the end effectiveness as either a criminal Safety Act, empowers local police chiefs of the sentence; investigation tool or in reducing re- to publicly disclose information about • a commitment to the value of gradual offending. offenders considered to be a significant release, to evidence-based programs As of December 15, 2004, there is also risk to the community. and services which reduce the risk, and a national sex offender registry law in The 1997 law also amended the to targeting the resources at those who force. It is substantially the same as the Ministry of Correctional Services Act to are higher risk; Ontario scheme, with some exceptions, similarly permit community notification • the political will to support these most prominently the requirement for a by provincial correctional officials. commitments; and, court order to place an individual on the This practice has been criticized • use of mental health legislation, mental registry (not automatically applied as in primarily for creating an environment in health facilities and resources, rather Ontario) and an appeal process. Despite which high-risk offenders are put at than criminal justice measures, in those the existence of a federal law and a greater risk for re-offending and for rare cases when the offender is national database maintained by the undermining treatment (see Fact Sheet extremely disturbed and unsafe to be RCMP and all of the costs associated #10 and #16). Here again, outcome released. with maintaining information for a evaluation is virtually non-existent and separate provincial registry, the Ontario what has been done (only in the U.S.) registry is also being retained. shows community notification does not Sex offender registries have been the reduce re-offending. subject of much criticism, most notably

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John Howard Society of Ontario 123 Edward St., Suite 701 Toronto, Ontario M5G 1E2 Tel: (416) 408-4282 Fax: (416) 408-2991 E-mail: [email protected]

The John Howard Society of O ntario 4 High-Risk O ffenders January 2005