Criminal Law

Dangerous offender ruling a good starting point: Zita

By Kathy Rumleski, AdvocateDaily.com Contributor

A recent Supreme Court of Canada judgment examining the dangerous offender designation helps clarify the process for the classification, along with the subsequent consideration of indeterminate sentences, Toronto criminal lawyer Jessica Zita tells AdvocateDaily.com.

“I still think we need better law to connect the dots on what exactly a dangerous offender is, but this is a starting point in tackling this significant, important legislation," says Zita, an associate with Hicks Adams LLP.

The case involved an offender who pleaded guilty to six offences following a 2012 robbery in which he used an imitation gun and demanded money, before taking $300 and fleeing, she says.

He was deemed a dangerous offender due to past convictions — 14 as a youth and 24 as an adult — and an indeterminate sentence was imposed.

Zita, who was not involved in the case and comments generally, explains that the dangerous offender process involves looking at the designation as well as the penalty.

She says an indeterminate sentence is usually deemed appropriate should a person have a lengthy criminal record and there is a belief the individual cannot be re-integrated into the community.

In the recent case, counsel for the man argued the Criminal Code sections dealing with both stages were inconsistent with the Charter, Zita says.

Last December, the Supreme Court upheld the dangerous offender provisions but said that an indeterminate detention should be a last resort, she says.

When dangerous offender hearings are held in Superior Court and lower courts, reams of material are produced, and many experts are called to review the institutional records of the offender, says Zita.

“There are multiple clinical tests that expound upon this person’s ability to be rehabilitated and whether treatment can help them to become a law-abiding member of society,” she says.

An indeterminate sentence suggests the answer is no, Zita says, adding it should only be used in the most extreme cases.

“I have issues with the dangerous offender regime as it stands because historically you’d find that sex offenders who preyed upon children were usually found to be dangerous offenders with indeterminate sentences.”

Correctional Service statistics show that there are more than 500 people serving indeterminate sentences in Canada. Many involve violent crimes while others are the result of multiple convictions, including robbery sprees, she says.

“The net has gotten wider in the last couple of years. What I’ve seen is that some people who commit crimes, possibly because of circumstance, are being designated dangerous offenders. Some of it may be because of circumstances beyond their control.”

Zita says even though the Supreme Court upheld the decision, it did find that the sentencing judge erred for failing to consider the offender’s treatment prospects.

Overall, she believes the ruling is positive because of the guidelines it provides in dealing with dangerous offender designations and indeterminate sentences.

“I think this will elucidate the process in terms of procedure and how we approach dangerous offender cases.

“The Supreme Court case has given us something to think about, but I still believe there’s more work that needs to be done within the dangerous offender scheme.”

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