High Risk Offender Tracking and Dangerous Offender- Long-Term Offender Applications

High Risk Offender Tracking and Dangerous Offender - Long-Term Offender Applications

DATE: May 20, 2008

SUBJECT: THE TRACKING OF HIGH RISK OFFENDERS AND THE CRITERIA AND THE AUTHORIZATION PROCESS
APPLICABLE TO POTENTIAL DANGEROUS OFFENDER AND LONG-TERM OFFENDER APPLICATIONS

Purpose:

The purpose of this practice memorandum is to:

  • facilitate the effective tracking of high risk offenders; and to
  • ensure that there is a consistent approach taken in the assessment of each proposed application for a dangerous offender and/or long-term offender designation, as these designations are described at Part XXIV (ss. 752-761) of the Criminal Code.

Background:

Generally

The Criminal Justice Division is committed to promoting safe communities by vigorously and fully prosecuting cases involving serious and violent crime. Safe communities and the protection of the public are the paramount goals when dealing with high risk offenders, including those who are high risk violent and sexual offenders and those who are recidivist impaired drivers. When prosecuting such individuals, these goals require Crown prosecutors to carefully assess whether an order should be sought declaring the offender to be a dangerous offender or a long-term offender. Once a person has been identified as being a high risk to re-offend, Crown prosecutors should attempt to secure the maximum protection for society by seeking substantial sentences of imprisonment, including indeterminate sentences in those cases where it is established that society cannot otherwise be adequately protected.

To be clear however, dangerous offender and long-term offender applications should not be advanced in marginal cases. There must always be compelling reasons for any such application and, as described next, the circumstances must meet the prerequisites of the Part XXIV (ss. 752-761) of the Criminal Code.

The Flagging System

To assist Crown prosecutors in assessing such identified individuals and to help identify other high risk offenders against whom dangerous offender or long-term offender application may be warranted, a national flagging system (in which Alberta fully participates) has been created. In initiating this program, the Federal government requested that each province create a program that would:

  • identify a Provincial Coordinator who would be responsible for the development of the province’s flagging system;
  • ensure that offenders only be flagged on the authority of the Provincial Coordinator;
  • maintain a central file location, so that the material could be accessed quickly both locally and in other jurisdictions; and
  • develop criteria for the flagging of offenders.

Through this system, high risk offenders are identified, and the relevant information pertaining to these individuals is catalogued and shared amongst Provincial Coordinators.

In Alberta, General Counsel stores this background information and will provide it to Crown prosecutors and law enforcement agencies prior to crucial decisions being made in respect of charging, prosecution strategies, and the commencement of dangerous offender or long-term offender applications.

The Dangerous Offender and Long-Term Offender Legislation

As noted by the Supreme Court of Canada at paragraph two of its judgement in R. v. Johnson (2003) 177 CCC (3d) 97 (SCC), “Canada has had legislation providing for the indeterminate incarceration of high risk offenders in one form or another since 1947.” Presently, the legislative scheme is set out at Part XXIV (ss. 752-761) of the Criminal Code and reflects amendments which took effect in 1997.

Bill C-55 [1] came into force on August 1, 1997. The legislation amended the Criminal Code, the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of Solicitor General Act. This Bill was meant to strengthen the sentencing and criminal corrections regime for offenders who present a high risk for violence. The overall purpose of this legislation was to enhance public safety by targeting these individuals. In this respect, the legislation included the following key features:

  • the scheme targets those committing “serious personal injury offences;”
  • it created the long-term offender designation;
  • a post-conviction assessment would be required;
  • the Crown was given the choice between bringing a dangerous offender or a long-term offender application;
  • the determinate sentence for dangerous offenders was abolished; and
  • long term offenders would receive a determinate sentence and up to ten years of post-sentence supervision.

In respect of the aim of Bill C-55, Gordon Kirkby, Parliamentary Secretary to the Minister of Justice made the following remarks:

These amendments improve the dangerous offender procedure of Part XXIV of the Criminal Code, create a new long term offender sentencing category targeted at sex offenders, and establish a new form of judicial restraint order that will place controls on persons who clearly pose a threat to the security of our communities.

….

The new long term offender procedure would be created in the Criminal Code to help us in the sentencing of repeat sex offenders. I am referring to pedophiles, the various levels of sexual assault, sexual touching, sexual exploitation, exposure and sexual interference. These are offences which may involve children or adults as victims. These are offenders who, unfortunately, frequently show a long pattern of offending.

Under the new procedure, when the prosecution identifies such repeat offending, it can make an application for a special hearing into the risks posed by the persons found guilty under these sections of the Criminal Code.

I want to take a moment to clarify the relationship between the long term offender category and the dangerous offender procedure. The question will be raised, should not the dangerous offender procedure, which carries an indeterminate sentence, be applied to all these sex offenders? The short answer is that it often will be. Most of the sex offences in the long term offender category, such as sexual assault, can equally support a dangerous offender application.

….

Over the past 20 years dangerous offender rulings averaged 13 to 15 offenders annually. However, several hundred sex offenders are admitted to federal penitentiaries each year. Some may be potential dangerous offender candidates but many more, though certainly not all, could be candidates for the long term offender application. The difference is, in the assessment of risk in a long term offender case, the court must find not only that there is a substantial risk of reoffending but at the same time there is a reasonable possibility of eventual control of that risk through community supervision.

As I have described, the judge will then structure the sentence with the appropriate combination of penitentiary time and the community supervision order. In effect, prosecutors will have flexibility in seeking a dangerous offender finding or a long term offender finding.

When a conviction for a serious sex offence occurs the crown can ask the court to remand the offender for a detailed assessment of the nature and degree of risk posed by that individual. The crown can then decide which way to go, dangerous offender application or a long term offender application.

Actually Bill C-55 provides that if the court does not find that the criteria for a dangerous offender finding are satisfied it can still make a long term offender finding and sentence the offender accordingly.

Our goal is not simply to lock up every sex offender indefinitely although, as noted, an indeterminate dangerous offender sentence remains an option in some cases. Our goal is to reduce the risk posed by this special group of offenders. The reality is most offenders will eventually return to the community having served their time. Community safety is not assured by the sudden release of offenders from a prison environment.

We need to control sex offenders through a combination of jail time and managed reintegration. A long term supervision order can result in an effective doubling of the period that a sex offender remains under the control of the state, the control of Correctional Service Canada.

Pursuant to Part XXIV of the Criminal Code, an offender may be designated a dangerous offender if found to be either a dangerous violent offender (s. 753(1)(a)) or a dangerous sexual offender (s. 753(1)(b)). In either case, the offender must first be convicted of a serious personal injury offence (defined in s. 752). Even if the statutory criteria are established, trial judges have a residual discretion to deny a dangerous offender designation. This discretion is based in the concern that the statutory criteria, applied literally, could lead to an unjust result. Having found the statutory criteria met, a trial judge must reassess the evidence to see if the offender is one who falls within that small group of criminals for whom preventative incarceration is warranted. The considerations at this stage are the: (a) seriousness of the criminal conduct and the offender’s moral blameworthiness, (b) offender’s treatment prospects, and (c) offender him/herself.

In assessing treatment prospects, courts (and Crown prosecutors) must be mindful of the following important principle:

The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence. An indeterminate sentence is not an unlimited sentence… The offender faces incarceration only for the period of time that he poses a serious risk to the safety of society. In the interim, it is hoped that he will receive treatment that will assist him in controlling his conduct. To release a dangerous offender while he remains unable to control his actions serves neither the interests of the offender nor those of society. (R. v. Jones (1994) 89 CCC (3d) 353 at pp. 396-397 (SCC))

Section 753.1 sets out the criteria for the designation of an individual as a long-term offender. Pursuant to this provision, a court may find someone to be a long-term offender if it is satisfied that, following a conviction for a serious personal injury offence or for any one of certain sexual offences (s. 753.1(2)(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;
  • there is a substantial risk that the offender will re-offend; and
  • there is a reasonable possibility of eventual control of the risk in the community.

To be clear, the long-term offender provisions are not restricted to those who have been convicted of the sexual offences listed in s. 753.1(2)(a): R. v. McLeod (1999) 136 CCC (3d) (BCCA).

Note also that, even if an offender meets one of the definitions of dangerous offender, but there is a reasonable possibility of eventual control in the community, and the public threat can be reduced to an acceptable level through a determinate sentence or a determinate sentence and a long term supervision order, an offender is not a dangerous offender: R. v. Johnson, supra.

Upon finding that an offender is a long-term offender, s. 753.1(3) provides that the court shall:

  • impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and
  • order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act.

Before a dangerous offender or long-term offender application may be heard, the Attorney General of the province in which the offender was tried must consent to the application (s. 754). In Alberta, the Deputy Attorney General provides the consent of the Attorney General to commence such an application.

Prior to any such application, there must be first prepared and filed with the court an assessment report: ss. 752.1, 753(1), 753.1(1). Section 752.1 provides that where an offender is convicted of a serious personal injury offence or an offence referred to in paragraph 753.1(2), the court may remand the offender for the preparation of such a report in circumstances in which the court is of the opinion there are reasonable grounds to believe the offender might be found to be a dangerous or long-term offender. In Alberta, the Chief Crown Prosecutor provides the consent at this early state, for an application for the preparation of such a report.

Flagging By Crown Prosecutors:

Where a Crown prosecutor determines that an accused may be or could become a high risk for re-offending in a manner contemplated by Part XXIV of the Criminal Code, he or she should immediately alert the Provincial Coordinator, who may already be aware of and have a file pertaining to the offender.

The Provincial Coordinator may request that the Crown prosecutor forward any relevant material that the latter might possess in respect of the accused. This will help to ensure that the Provincial Coordinator’s files are properly maintained.

Moreover, the Provincial Coordinator may be able to provide to the Crown prosecutor further relevant information (e.g., prior s. 752.1 assessment reports, pre-sentence reports, sentencing decisions, psychological assessments, and the criminal corrections history), for use by the Crown prosecutor in determining whether to recommend applying for a s. 752.1 assessment or to recommend commencing a dangerous offender or long-term offender application.

In any event, the Crown prosecutor should flag the particular file as one that pertains to an accused who is a potential dangerous offender or long-term offender.

Procedure:

  1. Crown Prosecutors contemplating dangerous offender or long-term offender proceedings should discuss the matter with the responsible Chief Crown Prosecutor as soon as possible, before plea or a finding of guilt.
  2. If it is decided that there is a reasonable likelihood that the accused might be declared to be either a dangerous offender or long-term offender, the Crown prosecutor must prepare a memorandum (in the format outlined at Appendix “A”) seeking the consent of the Deputy Attorney General to proceed. This memorandum must be reviewed by the responsible Chief Crown Prosecutor and, if he or she agrees with the recommendation, forwarded to the General Counsel. The memorandum should be well documented and include a detailed outline of the case, a copy of the Information or Indictment, a copy of the s. 752.1 assessment report, a summary of available psychiatric evidence, a copy of any criminal record, together with a detailed outline of any previous occurrence upon which the Crown would be relying, and a statement of the reasons why consent is sought and why a determinate sentence on the offence would not satisfactorily protect society. A draft Fiat for the signature of the Deputy Attorney General and a draft Notice of Application should also be included.
  3. General Counsel will review the memorandum and, if he agrees that a dangerous offender or long term offender application should be commenced, he will prepare a briefing note for the Assistant Deputy Minister (Criminal Justice).
  4. If the Assistant Deputy Minister (Criminal) determines the application to be meritorious, it will be submitted to the Deputy Attorney General for his consideration. If the Deputy Attorney Generals’ consent is granted, the application may proceed.
  5. If, following receipt of this consent, it appears that the evidence no longer supports the designation sought, the Crown prosecutor must consult with the responsible Chief Crown Prosecutor and General Counsel before a position is taken with respect to either:
    1. abandoning the application; or,
    2. if consent had been granted to proceed with a dangerous offender application, seeking instead a long-term offender designation.

    If it is decided that one of these routes is appropriate, General Counsel will prepare a briefing note for the Assistant Deputy Minister (Criminal Justice) in which the basis for the abandonment of or change to the application is explained.

Criteria:

  1. A dangerous offender application should be commenced where an offender meets one of the definitions of dangerous offender contained in s.753 of the Criminal Code, there is no reasonable possibility of eventual control of the risk in the community, and the public would not be adequately protected by a determinate sentence followed by a long term supervision order.
  2. A long term offender application may be commenced where the criteria in section 753.1 are satisfied, there is a reasonable possibility of the offender’s eventual control in the community and the public will be adequately protected by a determinate sentence and a long term supervision order.
  3. Some of the criteria which should be considered in determining whether dangerous offender or long-term offender proceedings are appropriate are as follows.
    1. The nature of the offence and the maximum penalty provided for that offence.
    2. The age and health of the offender.
    3. The number of victims and number of offences.
    4. The degree of violence of each offence keeping in mind that sexual intercourse with a young child constitutes an act of extreme violence.
    5. The pattern and time span of the offences.
    6. The nature and length of any criminal record of the offender.
    7. Whether a trust situation existed between the offender and the victim.
    8. Premeditation or planning of the crime.
    9. Community feeling to this or similar crimes.
    10. The ability of the witnesses to tolerate court proceedings.
    11. The impact of the crime upon the victims.
    12. The impact of court proceedings upon the victims.
    13. Previous treatment of the offender.
    14. The availability of previous transcripts and/or witnesses.
    15. The psychiatric assessment of the offender, availability of any suitable treatment programs and the prognosis for successful treatment.
    16. Any extenuating, mitigating or aggravating circumstances.

APPENDIX A

Format for the Final Recommendation to the Deputy Attorney General for Approval for a Dangerous Offender or Long-Term Offender Application

  1. Name of Accused
  2. Age
  3. Next court appearance
  4. Type of offence
  5. Circumstances of offence
  6. Circumstances of previous conduct the Crown will be relying on in the proceeding
  7. Psychiatric history and diagnosis
  8. The fixed sentence and long-term offender order that will be sought if consent is granted to advance a Long-Term Offender Application
  9. Reasons for the Application (including the fixed sentence that would be sought in the absence of Dangerous Offender/Long-Term Offender designation and why this sentence cannot address the risk posed by the offender)

Attachments:

  1. Copy of Information or Indictment
  2. Copy of Criminal Record and JOIN Tracking Sheet
  3. Copy of draft Notice of Application
  4. Copies of all Psychiatric Reports
  5. Copy of the Section 752.1 Assessment Report
  6. Draft Fiat

[1] An Act to amend the Criminal Code (High Risk Offenders), the Corrections and Conditional Release Act, the Criminal Records Act, the Prisons and Reformatories Act and the Department of the Solicitor General Act, S.C. 1997, c.17