A Brief History

Canada's first legislation that dealt with dangerous offenders was introduced in 1947 (Jakimiec et al., 1986). The Habitual Offender Act dealt solely with offenders with lengthy criminal records and essentially served to remove them from society (Jakimiec et al., 1986). In 1948, the Criminal Sexual Psychopath Act was enacted. The Act required mental health experts to identify and treat dangerous sexual offenders (Petrunik, 1994). The Crown could apply for designation of an accused as a criminal sexual psychopath if he or she was convicted of one of the sexual offences enumerated in the Act. An assessment was made by two psychiatrists. If the assessment concluded that the person was sexually dangerous, he or she would be subject to the special sentencing provisions in the Act. The sentence given was a combination of determinate followed by indeterminate incarceration. The determinate sentence consisted of a minimum of two years' imprisonment. The indeterminate sentence would be reviewed by the justice minister every three years to determine eligibility for parole and what conditions would be attached if parole was granted.

There were numerous problems with the 1948 legislation. The term 'criminal sexual psychopath' was seen as extremely vague and unscientific. It was a serious designation to use, considering that an offender could be confined indefinitely based on this designation. On the other hand, the term's vagueness made the criminal standard of proof beyond a reasonable doubt hard to meet (McRuer, 1958, cited in Petrunik, 1994). A judge or jury would likely find themselves in doubt regarding what 'criminal sexual psychopath' means. The legislation's flaws led to a specification of the criteria in 1960, when the Dangerous Sexual Offender Act replaced the Criminal Sexual Psychopath Act (Petrunik, 1994). Dangerousness was based on the offender's criminal record and the circumstances of the current offence. One conviction was required, including the one on which the dangerous sexual offender application was based. Offenders already released into the community could be called in for a hearing if an application was made within three months of their release. These offenders could be subject to an indeterminate sentence to be reviewed every three years.

In 1969, a corrections committee tabled a report making several major recommendations with respect to the Habitual Offender and Dangerous Sexual Offender Act. The habitual offender legislation was seen as ineffective and found to be used inconsistently across Canada. Those incarcerated under the Habitual Offender Act were often repeat nuisance or property offenders, not dangerous criminals who posed a threat to the public (Webster & Dickens, 1983). The dangerous sexual offender law was also used erratically across the country, on occasion for sexual offenders who were not violent. Moreover, the law did not address dangerous persons whose offences were not sexual but no less dangerous. The committee did, however, advise continued use of a clinical method. Reliance on the behavioural and mental health sciences was stressed for assessing, diagnosing and treating dangerous offenders. The Law Reform Commission of Canada, meanwhile, cautioned against using indeterminate sentencing and recommended avoiding clinical evaluations of dangerousness. Despite these recommendations, new legislation was enacted in 1977 as an amendment to the Criminal Code of Canada, based on the 1969 committee's report.


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