In the public perception, a convicted sex offender is typically thought of as an individual afflicted by poor impulse control, a failure to appreciate consequences, and, most significantly, as a habitual offender - in short, an undue risk to the public safety, certainly beyond any possibility of rehabilitation.
Yet even in the case of the sex offender, our criminal justice system operates on the premise that all sentences must be "tailored" to fit the circumstances of the individual and the sexual offence for which he was convicted. What, then, of the case of a convicted sex offender out on parole, no longer committing sexual crimes, yet still caught up in his overriding addictions to pornography and deviant sexual behaviour? Should he be reincarcerated?
Dangerous Offender Designations and Indeterminate Sentences
In Canada, a person convicted of a sexual offence may be designated, upon application by the Crown, as a dangerous sexual offender. Once designated as dangerous, the sex offender is then subject to a sentence of indeterminate length - a penalty that is not necessarily restricted to the most grave cases of violent or sexual misconduct. Theoretically, that raises the possibility that, whatever the offence, a designation of dangerousness carries with it the prospect of a lifetime of incarceration.
Normally, under Canada's Charter of Rights and Freedoms, such a possibility would be deemed as an infringement of section 12 - the protection against cruel and unusual punishment. Moreover, some defendants have alleged, in previous applications before a court, that the dangerous offender provisions are in violation of section 7 of the Charter, which protects the right to life, liberty, and security of the person.
In the Supreme Court of Canada decision of R. v. Lyons, La Forest J. held that though indeterminate sentences for dangerous offenders would be in violation of s.12 without "due safeguards," a requirement for regular parole review ensures that the sentence would be "tailored" to fit the circumstances of the individual and the criminal offence. The court, in this case, held that it was the saving provision of the parole process which would ensure that the dangerous offender laws would not fall afoul of the requirement for fundamental justice.
The Parole Process in Action - Assimilating The Sex Offender Into The Community
Under section 16 of the Parole Act, the National Parole Board (NPB) is required to consider the following criteria when deciding whether to release a dangerous sexual offender out into the general community, albeit under supervision:
i) Whether the inmate has derived maximum benefit from the imprisonment;
ii) Whether the inmate's reform and rehabilitation will be aided by the grant of parole; and
iii) Whether the inmate's release would not create an undue risk to society.
