Table of Contents. Foreword... Acknowledgment to Contributors... Table of Cases...
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1 Table of Contents Foreword... Acknowledgment to Contributors... Table of Cases... iii v TC-1 CHAPTER ONE: The History of Dangerous Offender Legislation in Canada The Origins of Dangerous Offender Legislation The Dangerous Offender Regime The Long-Term Offender Regime The New Regime CHAPTER TWO: Dangerousness and Risk Prediction in Dangerous Offender Hearings by Dr. Julian Gojer Introduction: Dangerousness, Violence, Aggression and Risk Assessment First Generation Risk Assessment Second Generation Research (a) The Rapid Risk Assessment for Sexual Offence Recidivism (b) The Static (c) The Static (d) The Violence Risk Appraisal Guide (VRAG) (e) Sex Offender Risk Appraisal Guide (SORAG) Limitations of the Actuarial Risk Assessment Instruments Psychopathy and its Special Role in Risk Assessment and Management The Third Generation of Dangerousness and Risk Assessments (a) The Risk Matrix-2000 (RM-2000) (b) The STABLE-2007 and the ACUTE (c) The Historical-Clinical-Risk Management-20 (HCR-20) (d) The Sexual Violence Risk-20 (SVR-20) (e) The START (f) Phallometric Testing CON-1 (Neuberger) (2013 2)
2 (g) Medical and Pharmacological Suppression or Elimination of Sexual Desire Risk Management and Dynamism in the Courts CHAPTER THREE: Preliminary Considerations Introduction (a) Relationship to Sentencing in General (i) Timing of Hearing (ii) Sentencing Principles Apply (iii) Preventive Detention (b) Aboriginal Offenders Prosecutor s Duty to Advise the Court (a) Outline of the Duty (b) Purpose of the Duty (c) Duty of Crown Prior to Accused Entering a Plea Assessment (a) Remand for Assessment (i) The Required Standard (ii) Prerequisites (iii) Assessment Performed By an Expert (b) Assessment Procedure (c) The Content of an Assessment (i) Admissible Evidence (ii) Charter Considerations (iii) Use of Assessment Beyond Part XXIV (iv) Dismissal of an Assessment Prerequisites for a Hearing (a) Consent of the Attorney General (i) Requirement of Consent (ii) Purpose of Consent (iii) Form of Consent (b) Notice to the Offender (i) Procedure for Serving Notice (ii) Content of Notice (c) Copy of Notice to Clerk The Hearing (a) The Judge Sits Alone (b) Presence of the Accused (c) Release During the Hearing CON-2
3 CHAPTER FOUR: The Dangerous Offender Regime Introduction (a) Overview of the New Regime (b) The Legacy of R. v. Johnson (c) Sentence of Indeterminate Detention (d) Predicate Offences Committed Before July 2, (e) Long-Term Offender Jurisprudence Issues Relating to the Burden of Proof (a) The Elements of Subsection 753(1) (b) Proceeding under Subsection 753(1) (i) Paragraph (a) (c) The New Subsection 753(4.1) (d) The New Presumption in Subsection 753(1.1) (i) Problem (ii) Problem (e) Final Thoughts on the Burden of Proof Making a Dangerous Offender Application (a) Violent Offences (i) Serious Personal Injury Offence (ii) Threat (b) Sexual Offences (i) Serious Personal Injury Offence (ii) Failure to Control Sexual Impulses (iii) Likelihood of Causing Injury, Pain or Other Evil CHAPTER FIVE: The Long-Term Offender Regime Introduction (a) Overview (b) The Effect of the 2008 Amendments Long-Term Offender Applications (a) Two-Year Sentence (b) Substantial Risk of Re-offence (i) Listed Offences (ii) A Pattern of Repetitive Behaviour Showing a Likelihood of Causing Death, Injury or Severe Psychological Damage CON-3 (Neuberger) (2013 2)
4 (iii) Conduct in a Sexual Matter Showing a Likelihood of Causing Injury, Pain or Other Evil (c) Reasonable Possibility of Eventual Control of the Risk in the Community (i) Burden of Proof (ii) Factors to Assess Reasonable Possibility of Eventual Control Sentencing a Long-Term Offender CHAPTER SIX: Evidence in a Part XXIV Hearing Introduction Standards of Proof (a) No Requirement of Proof (i) Admitted Allegations (ii) Facts Disclosed at Trial (b) Beyond a Reasonable Doubt (i) Elements of the Pattern (ii) Other Aggravating Factors? (c) Balance of Probabilities (i) Risk of Re-offence/Threat (ii) Disputed Facts from Trial (d) Statutory Presumptions (i) Presumption of Dangerousness (ii) Dangerous Offender Sentencing Victim Evidence (a) Admission (b) Victim Impact Statements Character Evidence Confessions Charter Considerations (a) Section (b) Section (c) Section CHAPTER SEVEN: Treatability by Marcy Henschel Introduction Treatability in Case Law Impact of the 2008 Amendments CON-4
5 7.4 Elements of Treatability (a) Significance of Treatability Evidence (b) Speculative Evidence or Conclusions (c) Evidence of Prior Treatment (d) Availability of Treatment (e) Pharmacological Treatment Conclusion CHAPTER EIGHT: Long-Term Supervision The Corrections and Conditional Release Act (a) Applied to Long-Term Supervision (b) Conditions Imposed as Part of Long-Term Supervision (c) Release Procedure and Related Problems Breaches and Re-offence (a) General (b) Breach of Long-Term Supervision Dangerous Offenders (a) Breach of Long-Term Supervision (b) Subsequent Serious Personal Injury Offence CHAPTER NINE: Other Elements: Appeals, Parole, 810 Orders Appeals (a) General (b) Standard of Review (c) Appeal by Offender (d) Appeal by Attorney General (e) Powers of the Appeal Court (f) Fresh Evidence on Appeal Parole (a) Disclosure to Correctional Service (b) Review for Parole (c) Continuing Sentence (d) Release (e) Aboriginal Offenders Section 810 Orders (a) Accompanying the Long-Term Supervision Regime CON-5 (Neuberger) (2013 2)
6 (b) Section Orders for Serious Personal Injury Offences CHAPTER TEN: The 2008 Amendments The Presumption of Dangerousness (a) Overview (i) Charter Considerations (ii) Procedure (b) Primary Designated Offence Timing of Application Sentence (a) Sentencing Guidelines (b) Adequately Protect the Public (i) Long-Term Offender Jurisprudence (c) Replaces Original Sentence Failed Dangerous Offender Applications Index to Legal Literature... LL-1 12 Selected Periodical Literature... PL-1 APPENDIX A Risk Assessment Tools... APPENDIX B Questions Relating to Experts and Treatment... APPENDIX C Selected Provisions of the Criminal Code... APPENDIX D Selected Provisions of the Corrections and Conditional Release Act and Regulations Corrections and Conditional Release Act, S.C. 1992, c APP-1 APP-33 APP-37 APP-67 Index... I-1 CON-6
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