Legislation regarding Statutory Release John McKay, M.P.
This letter is in reply to a letter from CCRA President Bob Baron.
Robert W. Baron
President, CCRA
P.O. Box 15518
West Hill, ON
M1C 3H5
January 11, 2002
Dear Mr. Baron;
Thank you for copying me your letter of January 10th, 2002 to Minister McLellan. I am sure that the Minister will respond directly, but I would like to take this opportunity to add what I hope you will find to be useful information.
The thrust of your letter alleges certain inadequacies in the Criminal Code of Canada. Section 752 (Dangerous Offender) can be summarized as applying to an indictable offence involving violence that endangers the life or safety of others and inflicts severe psychological damage, for which the offender would have received at least a ten year jail sentence. This includes all the Criminal Code offences for sexual assault, rape, intercourse with a child and indecent assaults on males and females etc. If a finding is made of guilt, the judge may decide that the offender's behaviour is repetitive, the pattern is persistent and aggressive, and it is brutal. Therefore he/she should be treated as dangerous. Upon making that finding, the judge will substitute an indeterminate sentence for a fixed sentence.
For example, this section has been applied to the rape of a 12-year-old girl and performances of other sexual acts, which can be described as coarse, savage and evil. The key element is brutality, which is repetitive, aggressive, endangers the public, and shows that an offender is unable to control his sexual impulses.
For those offenders not meeting the key element of brutality in Section 752, there is the alternative designation of long term offender in Section 753. Many of the considerations are the same: repetitive behaviour, inability to control sexual impulses, risk to the community etc, but the threshold is lower. Unlike the case of a dangerous offender, the sentence could have been as little as two years for the offence, but the judge was satisfied that the risk to the public was such that the designation of long term offender was appropriate. If that finding is made, the judge can add on an additional ten years of community supervision to the original sentence. In other words, a four-year sentence just became fourteen years.
Both the dangerous offender and long term offender sections are presently in the Criminal Code of Canada. The sections can apply equally to any offence against a child. However, the key element is repetitive brutality, and Parliament in its wisdom felt that an indeterminate sentence (no end date) better reflected its abhorrence of this individual and the danger posed to society. For all other behaviour, ten years on top of any other sentence was felt to be appropriate.
In this country we have a system of justice. Justice means a "cascading" of punishment, proportionate to society's abhorrence of the crime. In the case of sexual crimes against children, an offence can cascade from a conviction pure and simple to a designation as a long term offender (add ten years) to a designation of dangerous offender (indeterminate sentence).
Over 90% of successful Dangerous Offender applications involve sexual offences. Sentencing patterns are showing an increased use of the Long Term Offender designation, primarily for sexual offences.
Regrettably, constituents are subject to a mix of rumour and fact, which is inflamed by politicians who are ignorant of the law and of the daily struggles of justice officials. Nevertheless these inflamed opinions become absolute certainties, and people become locked into positions which reflect a woeful lack of knowledge.
Punishment is easy. Justice is far more difficult.
Sentencing is escalating. If an accused is convicted of second and third offences, the sentence is increased with each offence. For example, if an accused receives a nine-year sentence, it can be neatly divided into three parts:
The first third is custodial (behind bars in a secure facility).
The second third is discretionary release (some combination of halfway house and limited access to society). The onus is on the offender to demonstrate that he/she is a minimal risk to society. This form of release is more appropriate to a non-violent offender, and can be revoked at any time.
The final third is statutory release. The onus is on Corrections Canada to show that the release of the offender is too much of a risk to society, and the offender should serve his entire sentence behind bars.
The problem is that all criminals, except those serving life terms, return to the street sometime. The Law and Order crowd says, "Keep them in jail for the full sentence and then pitchfork them over the wall at the end and they're on their own". Experience has shown this to be a sure-fire way of increasing recidivism. It may give comfort to those who like revenge, "Let them serve nine years hard time behind bars", but it's a virtual guarantee that the offender will re-offend.
Canada's system tries to reduce re-offending by having the final third of the sentence as a managed reintegration into society. Overwhelmingly, the evidence shows that the incidence of recidivism is dramatically reduced when the offender's reintegration into society is managed in a staged and deliberate fashion, with forms of supervision at each stage. The evidence is incontrovertible that a managed and staged reintegration is far superior to merely pitching these offenders on the street at the end of their sentence.
As I see it, the real problem is not with the alleged inadequacies in the Criminal Code. Rather it is with the Provincial Government's chronic underfunding of the justice system. The provincial judges are underpaid. The provincial Crown Attorneys are underpaid. The provincial courts are a disgrace. The City of Toronto is starved of funds; therefore the police are under- resourced and social programs gutted.
May I suggest that you write to the Attorney -General for the Province of Ontario and ask him why the Province fails to fund and supervise the system of justice properly in this province. Almost all of the participants in the system are provincial employees one way or another.
There are adequate laws in place to deal with a variety of contingencies, including the problems raised in your letter. Thank you for giving me the opportunity to respond to your concerns.