DANGER IS MY MIDDLE NAME OR IS IT? A LOOK AT THE DANGEROUS AND LONGTERM OFFENDER DESIGNATIONS IN CANADA By Dr David Tano Forensic Psychiatry Forensic unit of the Southern Alberta Forensic Centre sponsored by me March 5, 2009 Disclosures ARLENE HUNTE: FORENSIC ASSESSMENT AND OUTPATIENT SERVICES 2 Objectives: To learn the history and origin of the DO and LTO designations To learn and understand the criteria needed to determine Dangerous (DO) or Longterm (LTO) offender status in Canada and what the key differences are To discuss the recent 2008 amendments to the CCC regarding DO and LTO To give a brief overview of how we at the centre approach these assessments Utilize the above knowledge and principles and looking at a couple of cases 3 1
What s the difference? 4 So what are we talking about? DO provisions : intended to protect all Canadians from the most violent and sexual predators in the country the objective of protecting innocent Canadians from future harm can and will ensure in such cases that the offender will remain in prison indefinitely until that risk no longer exists Exerpt from the public safety and emergency preparedness Canada website 5 So what are we talking about continued DO: individuals convicted of a serious personal injury offence and constitutes a threat to the life, safety or physical or mental well being of other persons If found DO: INDETERMINATE SENTENCE with no opportunity for parole for 7 years 6 2
So what are we talking about continued LTO: convicted of a serious personal injury offence who will likely reoffend BUT should have a reasonable possibility of eventual control of risk in the community If found LTO: serve a determinate sentence of 2 years plus and then can get up to 10 years of supervision in the community Any breach of supervision is an indictable offence and is punishable by up to 10 years in prison 7 Therefore; these are serious!! Serious designations with serious ramifications So how did they come about?. 8 History 1904: British: targeting persistant dangerous criminals engaged in the more serious forms of crime 1947: Habitual offender persistently leading a criminal life Determinate or indeterminate sentence 1948: criminal sexual psychopath act ID as sexually dangerous 2 yr min prison followed by indeterminate sentenced reviewed q3yrs 9 3
History 1969: found incarcerated people were more often rpt nuisances or property offenders as opposed to dangerous criminals 1977: Bill C-51 Dangerous offender provisions Unchanged from 1977-1997 10 Bill C 51: Dangerous Offender Rid of both habitual offender and the criminal sexual psychopath and replaced with new dangerous offender designation May be designated for serious personal injury offences including both sexual and non-sexual offences Demonstrated repetitive & persistent aggressive behaviour and prevention of behaviours in the future unlikely Received either determinate or indeterminate sentences 1977-1997 ; NO CHANGE 11 History: Bill C 55-1997 Allowed to streamline procedure Requires only 1 expert witness instead of 2 All DO must be given indeterminate sentences Initial parole review for DO changed from 3 to 7 yrs with review every 2 yrs following Creation of new designation: Longterm offender and Longterm supervision orders Section 810 peace bond created 12 4
Current DO legislation CCC section 753 dangerous offender if it (court) is satisfied (a) that the offence for which the offender has been convicted is a serious personal injury offence 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: 13 Section 753: DO (i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing and a likelihood A FAILURE TO RESTRAIN HIS OR HER BEHAVIOUR 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, 14 Section 753: DO (ii) 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 15 5
Section 753: DO (iii) 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 16 Section 753: DO (b) that the offence for which the offender has been convicted is a serious personal injury 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. 17 Serious personal injury offence (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving: (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, 18 6
Serious personal injury offence and for which the offender may be sentenced to imprisonment for 10 years or more, OR (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault). 19 DO legislation The court focuses on PUBLIC PROTECTION Weigh out whether the risk of the offender to the general public warrants an indeterminate sentence TOUGHEST SENTENCE IN THE CCC SPIRIT OF THE LAW = WORST OF THE WORST MUST NOT BE ISSUED IF LTO IS SUFFICIENT 20 LTO designation: section 753.1 (a) 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; (b) there is a SUBSTANTIAL RISK that the offender will reoffend; AND (c) there is a reasonable possibility of eventual control of the risk in the community 21 7
Substantial risk (a) the offender has been convicted of an offence under section 151 (sexual interference), 152 (invitation to sexual touching) or 153 (sexual exploitation), subsection 173(2) (exposure) or section 271 (sexual assault), 272 (sexual assault with a weapon) or 273 (aggravated 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 22 Substantial risk (b) the offender (i) 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 23 Substantial risk (b) the offender (ii) 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 offences 24 8
LTO Nb: NOT LIMITED TO SEXUAL OFFENCES If found LTO : serves a determinate sentence for their index offence then can have up to 10 years of supervision after release Any breach of a term of supervision order is a separate indictable offence and is punishable up to 10 years in prison 25 Aim of DO/LTO R v Jones 1994 Supreme court the overriding aim is not the punishment of the offender but the prevention of future violence to release a dangerous offender while he remains unable to control his actions serve neither the interests of the offender nor those of society 26 To further complicate matters 2006 Harper government amended DO/LTO, enacted 2008 Their purpose: to protect innocent Canadians from future harm by ensuring the offender remains in prison until a risk no longer exists 27 9
2006 reform amendments Presumed to meet DO designation criteria if he/she gets 3 rd conviction for a designated violent or sexual offence DO is not automatic BUT the BURDEN WILL NOW BE ON THE OFFENDER to explain why he should not be DO Time allowed to file report now 30d as well there is allowance for additional 30 d to file 28 2006 amendments con t The court MUST hear a DO application if satisfied there is reasonable ground (before could refuse) Following conviction of 3 rd designated offence, crown must declare in open court whether they will be pursuing a DO application Nb list of substantial risk sexual offences for LTO have also increased to include making, distribution, possession, and accessing child pornography 29 Amendment ramifications? Difficult to know at this time Our unit alone: prior to 2008 about 1-2/ yr 2008 : 9 lto/do assessments 30 10
Current numbers 1978-2005 : 384 people designated DO Average: 22/yr but has been grad increasing 1978-1987 : 8/yr 1995-2004 : 22/year 85% convicted for sexual offences 41% involve pedophelia 33% never served a federal sentence Aug 1997-2005: 311 LTO, 113 under community supervision Average : 39/yr 31 Profile of DO & LTO 2002 Lrgst % DO = Ont & Pacific DO- 38%, LTO 23% = ONTARIO DO 28%, LTO 14% = PACIFIC Lrgst % LTO = Quebec and Prairie DO 8%, LTO 28% Quebec DO 19%, LTO 26% Prairie 2002, all DO were male, 1 female LTO Avg age @ time of sentencing = 35-44yrs 32 Profile of DO/LTO 23% DO, 17% LTO were aboriginal 59% DO, 47% LTO <grd 9 education 50% single 76% DO, 61% LTO : unemployed Majority had a current sexual offence (85% of DO and 91% LTO) Avg determinate sentence for LTO = 4.1 yrs Avg supervision for LTO = 8.4 yrs 33 11
Profile DO/LTO con t In general DO more likely to offend against a stranger, specifically adult female In general LTO more likely to offend against children 34 How do we approach? dangerous and long-term offenders: an assessment guide by Derek Eaves et al 35 Our approach Vital to remain as unbiased as possible REMEMBER: OUR ROLE IS NOT TO DECIDE DO OR LTO = COURT DECISION WE ARE ONLY HERE TO ADVISE THE COURT ON OFFENDERS: AXIS 1 MENTAL STATE AXIS II: PERSONALITY CHARACTERISTICS AND COPING SKILLS RISK OF RECIDIVISM MANAGEABILITY/TREATABILITY FOR THE COMMUNITY 36 12
SAFPC Multidisciplinary Risk Assessment Utilize various risk assessment tools : Eg HCR 20, VRAG, SARA, SVR-20, PCL-r etc 37 Cases: A.N. G.W. W.D. A.B. 38 What s the difference? 39 13
And between these two? 40 Questions/Discussion 41 Thank you for your participation For information about Telemental Health education sessions: (403) 783-7736 www.amhb.ab.ca Initiatives Telemental Health Current Telelearning Sessions 42 14