Criticisms of Canadian Dangerous Offender Legislation
Several of the provisions contained in Bill C-55 have been criticized as being potentially unconstitutional and will undoubtedly face the scrutiny of the Supreme Court of Canada. Since Bill C-55 came into force, dangerous offenders must be given indeterminate sentences without eligibility for parole until seven years has passed. The elimination of judicial discretion and the increase in parole eligibility period could be in violation of section 12 of the Canadian Charter of Rights and Freedoms. Canada's highest court has yet to hear a case regarding the constitutionality of section 761, but in another related decision,"[t]he Supreme Court of Canada has found that minimum sentences may constitute cruel and unusual punishment, contrary to section 12" (Koziebrocki & Copeland, 1997). Further, the community supervision requirement for long-term offenders which makes any breach of conditions an indictable offence, could be in violation of section 7 of the Charter. This section of the Charter states that all Canadians have " the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." Koziebrocki and Copeland (1997) argue that in making any breach of conditions placed on an offender by the Parole Board a criminal offence, the long-term offender provision improperly delegates judicial sentencing discretion. Thus, a long-term offender may be deprived of his liberty in a manner that is not in accordance with fundamental justice principles.
Section 810.2 of the Canadian Criminal Code has also been the subject of much criticism. Under this section, a judge may order a high-risk peace bond of a duration of one year or less if the court is satisfied that the released offender poses a significant threat to the person security of a particular person. Any person in fear of personal injury when an offender is released can initiate the peace bond process. The court may place specific conditions on the offender that must be met or the defendant will face further sanctions. On the surface, the high-risk peace bond measure appears reasonable, but when a number of conditions are imposed, particularly when they are not realistic, offenders may be unable to abide by them. Consequently, released offenders subject to a peace bond have an inordinately difficult time staying out of jail.
The case of L. J., a sex offender from southern Alberta, is indicative of the difficulties that released offenders on peace bonds can face. L. J. repeatedly denied sexually assaulting a fourteen year old girl, but was found guilty of the offence and kept in custody until the end of his sentence. Upon release, a peace bond was ordered according to section 810.2 of the Criminal Code, and L. J. was compelled to abide by several conditions (which, at this time, are still in force). First, he is required to inform local police about a change in residence, providing at least 24 hours before the change. Second, L. J. must report weekly to a specified detective in a city about 100 kilometers away, even though he does not have a vehicle. Third, he must not come within 100 meters of a public area where children under the age of fourteen might be present. Additionally, he cannot enter a residence within which live children under fourteen years of age. Since the peace bond was issued, L. J. has been breached for failing to notify the police at least twenty four hours prior to a change in his residence. L. J. was evicted from a hotel in which he was living after his identity and sex offender status was publicized.
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