HIGH RISK ACCUSED PROSECUTING AND DEFENDING DANGEROUS AND LONG-TERM OFFENDERS

PANEL: HONOURABLE BRUCE DURNO (SCJ), DR. PHILIP KLASSEN, PAULA ROCHMAN AND JULIE LEFEBVRE (CC-HRO) DANGEROUS AND LONG-TERM OFFENDERS

• Total number dangerous offenders: 792 – 81.3% had indeterminate sentences – 712 were in in custody – 8 women – 35% were Indigenous offenders • On average 24 per year • Total number of long-term offenders: 880 – 17 women • for dangerous offenders: • s. 761(1) parole to be considered 7 years after taken into custody (date of arrest) and every 2 years thereafter. • Eligible for day parole after 4 years. DANGEROUS AND LONG-TERM OFFENDERS

Ontario Statistics: • Since 1978 – 391 dangerous offenders – 42% of all in Canada • Only Quebec has more long term offenders than Ontario PART XXIV APPLICATION STEPS

1. Application for assessment: s. 752.1 • Reasonable grounds to believe might be found … 2. Provincial Attorney General’s approval: s. 754(1)(a) 3. Hearing PART XXIV APPLICATION STEPS

• Rules for Criminal Proceedings for the Superior Court, Rule 35 • Mandatory case supervision • Areas upon which case supervision judge can give directions • Pre-hearing forms: Form 23 • OCJ Rule 2 (Notice of Application) and Rule 4 (Case Management) DANGEROUS OFFENDERS CRIMINAL CODE, PART XXIV

Designated offences, s. 752: • Listed primary designated offences only applies to s. 753(1.1) not relied upon in Ontario, and

• Listed offences – Serious Personal Injury Offence DANGEROUS OFFENDERS CRIMINAL CODE, PART XXIV

Serious Personal Injury Offence: • An indictable offence for which the offender may be sentenced to 10 years or more, other than first or second degree involving • The use or attempted use of violence against another person, or • Conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person • An offence or attempt to commit sexual , sexual assault with a weapon, threats to third persons or causing bodily harm or aggravated sexual assault DANGEROUS OFFENDERS S. 753(1) ELEMENTS

• Shall find the offender who has been convicted of a “personal injury offence” to be a dangerous offender if satisfied: • The offender constitutes a threat to the life, safety or physical or mental well-being of other persons, on the basis of establishing: • A pattern or repetitive behaviour, including the offence he or she was convicted of, showing a failure to restrain their behaviour and the likelihood of causing death or injury to other persons, of inflicting severe psychological damage on other persons through a failure in the future to restrain their behaviour DANGEROUS OFFENDERS S. 753(1) ELEMENTS

• A pattern of persistent aggressive behaviour including the offence he or she was convicted of showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other person of his or her behaviour; or

• Any behaviour associated with the offence he or she has been on convicted of that is of such a brutal nature as to compel the conclusion the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint. DANGEROUS OFFENDERS S. 753(1) ELEMENTS

• The offender by his or her conduct in any sexual matter including the offence for which he or she was 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 in the future to control his or her sexual impulses. DANGEROUS OFFENDERS S. 753(4)

• If the court is satisfied the offender is a dangerous offender: • Impose an indeterminate sentence; • Mandatory unless satisfied there is a reasonable expectation that a lesser measure will adequately protect the public, against the commission by the offender of murder or a serious personal injury offence. • Impose a sentence for which the offender was convicted (must be for at least two years) and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or • Impose a sentence for the offence for which the offender was convicted. DANGEROUS OFFENDER SENTENCE

• If not satisfied the offender is a dangerous offender: • Court may treat the dangerous offender application as an application to declare the offender a long-term offender: or • Impose the sentence LONG-TERM OFFENDERS S. 753.1

• If the court is satisfied: • It would be appropriate to impose a sentence of 2 years or more, • There is a substantial risk the offender will reoffend, and • There is a reasonable possibility of eventual control of the risk in the community

• R. v Nash, [2002] O.J. No. 3394; Her Majesty the Queen v. Michael Bidilici, Unreported February 22, 2019 Braid J. (S.C.J.) at p. 19 LONG-TERM OFFENDERS S. 753.1

• Substantial risk if: • The offender has been convicted of listed offences, and • The offender: • Has shown a pattern of repetitive behaviour, including the offence for which they were convicted, that shows a likelihood of the offender causing death or injury or inflicting severe psychological damage on other persons, or • By conduct in any sexual matter including the offence for which they were convicted, has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences. LONG-TERM OFFENDERS SENTENCE

• The court shall: • Impose a sentence for the offence which must be at least 2 years but cannot be imposed with a life sentence, and • Order the offender be subject to long-term supervision for a period that does not exceed 10 years. NORTHERN STATISTICS

On average there are 3-5 Dangerous Offender Hearings in the North Region • Between 2013 and 2018: 20 cases proceeded to a Part XXIV Hearing • 5 declared indeterminate; 9 DO determinate; 5 LTSO; 1 traditional sentence • Currently working on 5 (post ) WHAT CRITERIA IS TAKEN INTO CONSIDERATION

• Repeat violence and/or sexual offenders who pose a serious risk to the community. • Age • Risk of • Pattern of behaviour • Intractability – Treatment history; substance use UNCHARGED OFFENCES FORMS PART OF THE PATTERN

• R. v. Mahalingan, [2008] S.C.J. No. 64 (issue estoppel) • If – generally the Crown cannot use. R. v. Stratton [2009] O.J. No. 3764 (OCJ) • If withdrawn or uncharged offences – Crown must prove any facts it wishes to rely upon beyond a reasonable doubt (Gardner Hearing) WHAT EVIDENCE WILL THE CROWN RELY UPON

R. v. Jones, [1994] 2 S.C.R. 229: most relevant information before the Court; hearsay admisible subject to weight. • Prior • Transcripts • Court Informations/Indictments • Police reports/witness statement (R. v. Williams, 2018 ONCA437 – leave to appeal SCC Aug 26, 2019) • Correctional Records • records: Pre-sentence reports, notes, etc. • Psychological/Psychiatric Assessments (R. v. Jones) • Accused statements to police and professionals READ : R. v. Walker, [2019] O.J. No. 4901 (CA) R. v. Morgan-Baylis, 2018 ONSC 2979 PRE- RESOLUTION DISCUSSIONS

• Once a matter is screened for a Part XXIV Application the Crown must not negotiate a guilty plea in exchange for agreeing to forego a dangerous or long-term offender (quid pro quo) • As with any case, Crown has an obligation to assess their position; • Plea must be voluntary • R. v. • Is there a point of no return? YES – Once the assessment commences! • R v. R.S. 2019 ONCA 542 ** CANNOT NEGOTIATE PLEA FOR A LONG-TERM OFFENDER DESIGNATION** TIMELINES

• R. v. Charley 2019 ONCA 726 - 11(b) exceptional circumstance • Upon conviction – Production Orders required for certain records (30 days to comply) • Retaining Forensic Psychiatrist • Gladue Report • Assessment Period (90 days) • 60 days for the assessment (s. 752.1(1)) • 30 days to file report (s. 752.1(2)) • Extension of further 30 days (s. 752.1(3)) TIMELINES

• Once Report received – Crown Consultation and Require A.G. Consent to continue (s. 754(1) • 8 weeks required • Defence Input is confidential • Case Management meeting can be held in the interim to discuss admissibility issues • Crown will be in a position to advise what information they will rely upon and if any prior bad conduct need to be proven • If Consent: Defence Assessment to be considered • Case Management – setting dates for admissibility issues and hearing SELECTING THE PSYCHIATRIST

R v. R.M.P., [2019] O.J. No. 1765; R. v. Billings, 2017 ONSC 278 • Court designates the Assessor • defer to the Crown's choice absent cogent and compelling reasons indicating that the Crown's choice is inappropriate due to bias, qualifications or unavailability, DEFENCE CONSIDERATION Psychiatry and the 753 Process

Phil Klassen MD FRCPC Vice-President, Medical Affairs Ontario Shores Centre for Mental Health Sciences Assistant Professor, University of Toronto 1. Materials for Assessment What do you need the material for?

• The expert witness’ task is to assess – Propensity for offending – Type of offending if possible (eg surmised from diagnosis) – Duration of that propensity – Responsivity to intervention • Thus you need to provide the expert with information that can help to address these issues • Propensity involves review of longitudinal data – Juvenile crime, CAS records, youth custody records • Type of offending flows from diagnosis and behavior patterns – CPIC, information on priors, witness statements • Duration of risk is age-related, and offense -ype related • Responsivity to intervention is based on history, and PCL-R score – Probation, custody, and other treatment records 1. Materials for Assessment What do you need the material for? 1. Materials for Assessment

• Actuarial approach – Who is at higher or lower risk? • Static risk factors • Relative probability of risk over long term • Structured clinical judgement – When the behavior is more or less likely to occur? • Dynamic risk factor • Temporally proximate problem areas relevant to risk • Challenging for long-term assessment as scenarios may change 1. Materials for Assessment (assume PCL-R for all matters)

•Sex offences –Static-99R or 2002R –SORAG –SVR-20/RSVP •Violent offences –HCR-20 –VRAG (VRAG-R) •Intimate partner violence –VRAG –ODARA –DVRAG 1. Materials for Assessment

• Juvenile information; when does the “pattern” start? – CAS – School – Juvenile crime and detention (MCYS) • Adult civil – Treatment/hospital records • Get the whole file with nursing and psychology notes, and relapse prevention plans • Adult criminal – CPIC/criminal information; transcripts preferred – Probation records – Provincial and federal corrections 1. Materials for Assessment Other considerations

• Important to speak with persons that know the subject of the assessment • Important to consider phallometric testing • Occasionally consider psychological testing • Question of weight: – Jail misconducts – Allegations contained in hospital or supervisory records – Charged but not convicted…ask them about the allegations! 1. Materials for Assessment Child Pornography

• No validated risk tool at this time • No need to send the images, generally • Best available outcome study (Seto, Canadian) – 5 year follow up – 3% “hands–on” offending – 9% child pornography recidivism – Does not apply to luring offenders 2. GLADUE CONSIDERATIONS GLADUE FACTORS

• At the Screening stage • Important to obtain community input • At the Assessment stage • Canada v. Ewert – use of actuarial tools • Prior Treatment programs • Alternative community support • At the Hearing stage • R v. Gracie 2019 ONCA 658 2. Gladue

1. What are the options? 2. General theory of crime 3. Representation in Canadian studies 4. Not all the evidence available now was before the Court 5. Meta-analysis in the works… 2. Gladue What are the options?

•The options are –Clinical risk assessment –Structured risk assessment –Actuarial risk assessment •Clinical risk assessment is demonstrably inferior (Steadman, Rice and Harris, Hanson, Mulvey etc) •Structured risk assessment or actuarial risk assessment, if available, are the only ethical options – And structured tools work as well or better when used actuarialy (Hanson, Psychological Assessment, 2009) •Anything less is an injustice to indigenous persons 2. Gladue General theories of crime

•Research has consistently demonstrated that certain factors predict offending – Age, sex, IQ, education, employment, adverse childhood experiences, peer associations, social breakdown, substance use, parental substance use, SES, marital discord, community exposure to violence, etc. •These factors are present to a high degree in indigenous communities •Risk tools work about equally well in various cultures, to the extent that this has been studied – Eg HCR-20 works in Asia, works in Asians in Hawaii, works in South America… •Risk tools are not surgical – Only looking broadly at risk category 2. Gladue Many studies have used Canadian samples

• Indigenous persons represent about 2-3% of the Canadian population • Indigenous persons represent about 20-25% percent of the incarcerated population in Canada – Up to 80% in Prairie regions • One would expect that if risk tools did not work in Indigenous persons, this may have appeared in Canadian studies 2. Gladue Not all relevant studies used or available at the time of Ewert

• There have been studies looking specifically at Indigenous persons and risk assessment • Not all were mentioned or available to the Court • Instruments include the LSI-OR, the SAVRY, the PCL, the VRS:SO, and the STATIC-99R/2002R 2. Gladue Not all studies..

• VRS:SO – Paper in press by Olver et al (post-Ewert); 400 Indigenous men, 700 non-Indigenous men – VRS:SO and Static-99 prediction not statistically significantly different in terms of prediction; trend to less accurate in Indigenous persons – No differences at all in change scores (dynamic items) – Risk differences due to longer criminal record in Indigenous men (static variables) 2. Gladue Not all studies…

• PCL-R – 2015 study by Olver (Journal of Abnormal Psychology) not reported, 4 Canadian samples – 74% of primary (interpersonal, affective) psychopathy was non- Indigenous – 52% of secondary (dysregulated) psychopathy was Indigenous – No differences in outcome, except higher sexual recidivism in secondary variant. Olver et al, 2015 2. Gladue not all studies…

• PCL – Two studies by Hare, and Fred Schmidt, from Lakehead, not reported – Studies show that PCL:YV works as well or better in Indigenous males and females (adolescents) 2. Gladue Not all studies…

• LSI-OR – Meta-analysis by Wilson (2015), CJB – Wilson: LSI predicts general recidivism, but under-predicts in low- scoring Indigenous offenders. 12 data sets from Canada, US, and Australia. Wilson, 2015 CJB 2. Gladue Not all studies…

• Static-99R/2002R – Meta-analysis by Babshishin et al (2012) CJCCJ – Static-99R equally predictive; interestingly, not the 2002R

2. Gladue Suggested caveat…

Scientific research has consistently shown that structured, or actuarial, methods of risk assessment are the most accurate. While they are imperfect, no alternative is equal or superior. Studies addressing their accuracy in Indigenous offenders are ongoing, but available evidence indicates that, taken together, these tools are applicable to persons of Indigenous background. Indigenous offenders should have access to the best available risk assessment methodology, which at this time remains structured or actuarial instruments. 3. HOW TO MAKE THE HEARING MORE EFFICIENT 4. EXAMINATION/CROSS

• Typically a forensic psychiatrist (with Royal College credentials) • Should come from an academic setting • Should have a team available if necessary • Should have phallometric testing available • Should not have a treatment relationship with the accused • Should have formal training in risk assessment tools as necessary (PCL-R etc) • Consider number of prior 752.1 assessments