Canada's sex offender legislation: 'tough on crime', short on smarts!

Existing Protections

 

There are high-risk offenders, including some who have offended sexually, who should never be released back into the community. Fortunately, these individuals are unlikely to achieve release from prison or supervision due to the influence of a number of existing processes. First, many of these offenders are screened out through the imposition of life sentences or a dangerous offender designation.  Under the Dangerous Offender provision, an offender who is believed to constitute a danger to the life, safety, or mental/physical well-being of others may be subject to the classification. Under this designation, the offender could remain in prison indefinitely if considered to pose a significant risk if released (see R v. Jones). Once declared a dangerous offender, even if they are paroled, the offender will be under supervision for the rest of their lives. Furthermore, parole can be revoked at any time.

Further provisions affecting the criminal code regarding Dangerous Offenders came into effect on July 2, 2008.  Under the reformed legislation an individual would be presumed to meet the criteria for Dangerous Offender designation upon obtaining a conviction for a third designated violent or sexual crime that is subject to a federal sentence of at least two years.

To further community safety there exists the designation of Long Term Offender, as well as a new Long Term Supervision Order. This designation was intended for individuals who do not fall under the dangerous offender provisions, yet still present a substantial risk to re-offend. In the event that the Crown determines that the risk posed by the offender could conceivably be managed through monitoring and probation conditions (which often includes compelling treatment), the offender may be designated as a Long-Term Offender rather than a Dangerous Offender. A Long-Term Offender designation results in a determinate minimum sentence of two years plus up to a maximum of ten years of community supervision. As of February, 2005, there were 300 active Long Term Offenders in Canada, 187 of whom were incarcerated and 113 in the community under supervision. The Long Term Supervision Order begins after the offender has completed the custodial sentence and would then begin a post-release probationary period of up to ten years. Many such sex offenders then cannot even apply for a pardon for long periods because they are on community supervision orders.

In addition to the Long-Term Offender and Dangerous Offender legislation, the National Flagging System was founded on March 10, 1995 in order to assist authorities in dealing more effectively with high risk offenders. This system is intended to ensure that, where a prosecutor has previously indicated an offender is at high risk of future violent conduct and re-offense, other Crown prosecutors could easily find and access to all of the available background information on that individual. Their criminal records are flagged in the system and retrieved for reference when the offender goes before the court on subsequent charges or recognizances. This allows the prosecutor to make appropriate decisions regarding future charges and trial strategy, including whether or not to proceed with a Dangerous Offender application.

Clearly, to ensure the safety, protection and rights of innocent people in our society, it has been necessary to prevent certain chronically violent offenders from being released back into society. For individuals who have repeatedly shown they are incapable of behaving in a society in a responsible and nonviolent manner, jail is exactly where they should stay. The Dangerous Offender provisions thus ensure that society is protected from high-risk, repeat criminals. People who are designated Dangerous Offenders are not simply people who have made a mistake and have learned their lesson. They are not candidates for treatment or reform from their time in a penitentiary, and there is nothing to mitigate the risk to the community if and when they are released.  The question arises the, what happens to those much lower-risk offenders who have served their sentence and are released back into the community?