The Canadian Bar Association
Criminal

Rare dangerous offender designation becoming more common for women

The moment when a woman who spent most of her life behind bars was designated a dangerous offender was heartbreaking for Toronto criminal lawyer and the defendant's counsel Lindsay Daviau.

The recent case revealed the defendant, now 35, spent about 17 years behind bars, with only 14 months within that period outside of an institution. It began as a youth caught in the revolving door of jail and probation, Daviau tells AdvocateDaily.com.

"This was a sad, sad case, as most of these matters are," she says. "This person has been a victim of the system as much as she's been a victim of the streets. If you look at her institutional history, she's had no treatment for substance abuse and very little access to programs.

"You don't want her to be declared a dangerous offender at all," says Daviau, who practises with Rosen and Company Barristers. "I have to say coming out of this hearing I am at least hopeful she'll now get access to some of the resources she needs to be able to change, to break away."

She says her client is one of nine females now designated as dangerous offenders in Canada.

In 2013, a news report suggested there was only one female dangerous offender in the country. While it remains relatively rare for a woman, Daviau predicts more women will be designated as dangerous offenders in the future.

"The difference now is that there are so many applications," she says. "It used to be reserved for the worst of the worst, now that umbrella just widened. If you look at the trend, it's up for both men and woman.

Daviau says her client was denied access to programs in part because she spent much of her time in "extreme segregation" through management protocol, isolating those considered the worst offenders who were also a threat to other inmates.

The protocol was abolished but not before her client became the only female to ever earn her way out it.

"I don't see her as a dangerous offender," Daviau says. "I have difficulty with the concept of 'throwaway people,' those who we categorically say should never be in society. And I also have difficulty with, in particular, females being declared dangerous offenders when all the literature says if we could just address their needs, we would be better off."

Since much of her client's time was spent in provincial prisons, "she literally was just sitting there, becoming institutionalized and there's very little access to anything helpful."

Daviau says her client didn't receive treatment for known medical issues thus "was given no chance to break away from the lifestyle at an early age."

Care and programs within an institution are focused on people who are going to be released after serving their sentence, not those who are being "warehoused," she says.

Society needs to determine what steps should be taken to prevent someone from becoming a dangerous offender, or involved in criminal behaviour, Daviau says. Investing in job training and life skills would decrease the risk of criminal behaviour, she adds.

Solutions to reduce crime don't lie in "throwing them in jail and tossing away the key," Daviau says. "It's more about addressing social issues, like job training and assistance with even the simplest tasks like opening a bank account. You're in jail for 17 years since you were a teenager, you don't have a bank account, you don't have a driver's licence.

"Where do we go from here? Do we warehouse them? I would think the answer would be no," she says.

A total of 681 people were designated as dangerous offenders in 2015-16, according to Correctional Service Canada (CSC), which didn't break down genders. CSC statistics indicate there have been 3,741 initial detention reviews since 2000-01, and 93.1 per cent resulted in a decision to detain.

Daviau says most of the money assigned to care for dangerous offenders within institutions is funnelled towards men, in part because there are more of them. While there are halfway houses and treatment programs for men, although in short supply, resources are even more scarce for females.

And that, she says, has created a paradox, which could work in favour of her client — and other women.

"What shocked me is that because there's a complete lack of resources for females, Corrections Services have to address the disparities somehow," Daviau says. "What the women end up getting is a more tailored treatment plan.

"For example, the doctor in my case had specific recommendations, and the answers from Correctional Services were, 'If she needs a bed, we'll make a bed available, if she needs support, we'll get her support,'" she says.

Recent legislation allows for a court to designate a person as a dangerous offender, and then determine whether the defendant will be placed on a fixed sentence with a long-term supervision order, or given an indeterminate sentence.

The designation is used at times to get a plea. Daviau recalls a male client who was charged with sex assault where the Crown stated if it won the case, it would seek a dangerous offender designation unless he pleaded guilty.

"That's a tremendous amount of pressure when you're looking at someone with a significant criminal record, and you look at the legislation and then sit down to tell your client there's a really good chance the Crown is going to get what it asks for," she says.

"It's daunting," Daviau says. "The reality is very few people get parole after they've been named a dangerous offender.

"Among the females, no one with an indeterminate sentence has ever gotten it," she says.

Research shows the issues that usually place women in a position to offend or increase their vulnerability are tied to their needs: "If you fix housing, abuse and other similar concerns, it would lower the risk of criminality," Daviau says.

To Read More Lindsay Daviau Posts Click Here
Lawyer Directory
Janus ConferencesToronto Lawyers AssociationMKD InternationalFeldstein Family LawInfoware Canada Morrow Mediation Shekter Dychtenberg LLPJanice Quigg International Inc.