Top court limits dangerous offender law
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Unanimous ruling makes it harder to impose indefinite prison terms
Janice Tibbetts The Ottawa Citizen
It could be harder to declare someone a dangerous offender and imprison them
indefinitely following a Supreme Court of Canada ruling yesterday that
ordered new hearings for five B.C. men with histories of gruesome sex
assaults and violence.
The court concluded that six-year-old federal legislation, which promised to
crack down on dangerous offenders, in fact raised the bar for the Crown to
prove someone is dangerous beyond rehabilitation.
In a 9-0 decision, the court said judges must first consider whether an
offender can be controlled by community supervision before imposing a
dangerous offender designation. The law before 1997 did not include the
hurdle.
"The principles of sentencing dictate that a judge ought to impose an
indeterminate sentence only in those instances in which there does not exist
less restrictive means by which to protect the public adequately from the
threat of harm," wrote justices Frank Iacobucci and Louise Arbour.
There were 334 dangerous offenders in Canada as of June 15 -- people with a
pattern of crimes involving serious violence or sexual assault who are at
risk of reoffending. Dangerous offenders are eligible for parole, but few
are ever released from prison.
The ruling means judges who declared people dangerous offenders will now
have to consider whether they instead fit the new and less "draconian"
long-term offender designation, said Gil McKinnon, the lawyer for one of the
five men.
Long-term offenders have a better chance of being released because they are
are eligible for fixed prison terms, followed by 10 years of supervision
upon release.
The decision does not apply to dangerous offenders like notorious murderer
Paul Bernardo, who has exhausted all of his appeals.
At issue in the case were 1997 Criminal Code amendments that then justice
minister Allan Rock said was designed to make Canadian streets safer by
tightening the rules for dangerous offenders.
The ruling was the first test of the new category of long-term offender
created in the legislation for people considered dangerous but do not meet
the stringent criteria to be declared a dangerous offender.
The Supreme Court agreed with the B.C. Court of Appeal that judges should
first consider whether offenders are eligible for the down-graded
designation of long-term offender before locking them away.
"The introduction of the long-term offender provision expands the range of
sentencing options available to a sentencing judge," said the court.
"In a certain percentage of those cases there will be a reasonable
possibility of eventual control of the risk in the community."
Vic Toews, the Canadian Alliance justice critic, said the Liberal
legislation has effectively let dangerous criminals off the hook.
"The 1997 legislation was supposed to deal more severely with Canada's worst
offenders, but instead it has only made it easier for serious criminals to
avoid serious penalties," he said.
Mike Murphy, a spokesman for Justice Minister Martin Cauchon, said the court
decision has clarified the law on dangerous offenders.
"In light of today's decision will we look at the provisions to see if
changes are necessary to ensure the public is properly protected," he said.
The five men who were awarded new hearings are:
Jerimiah Johnson, who was convicted of a series of sexual assaults on male
and female victims, including a teenaged girl and a young boy.
Daniel Edgar, who was convicted of sexually assaulting a 52-year-old woman
while she was babysitting a group of children, and previously of other
sexual assaults and physical abuse of his wife.
Stewart Smith, found guilty of numerous violent assaults of his girlfriends,
children and others, and of manslaughter in a beating death.
Steven Mitchell, who has a history of sexual assault convictions, mainly for
groping and fondling, that began when he was 13 years old.
Michael Kelly, 40, with a criminal past that includes home invasions and
robberies of elderly women and sexual assault of a 14-year-old girl.
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