The ‘Predator’ Next Door Risk Management at the

Community Interface

Daniel J. Brodsky, LLB 37th Annual AAPL Meeting Toronto, ON Canada Chicago - October 26, 2006

Intro. - Medicalization or Criminalization?• Incapacitation of high risk sexual offenders

for the purpose of protecting the public is a legitimate federal and provincial state concern

• The implementation of this laudable objective has not been easy from a legal or clinical perspective

• Indeed, the preventative detention of sex offenders and the practice of psychiatric gating underscore some of the most critical tensions between the roles and mandates of the federal criminal justice system and the provincial civil mental health systems

Presentation Overview• SVP Law in Canada• Preventative Measures for Long-Term

Offenders• The Canadian National Sex Offender Registry• Community Notification• Actuarial Instruments and the Incapacitation

of risk• Wrap-up/Questions

SVP Laws in Canada • Civil commitment of sexual offenders is

permitted under the involuntary admission provisions of provincial Mental Health Acts

• Civil commitment targets mentally disordered high risk individuals

• Decisions are based on a dangerousness standard and protection of the public is achieved through restrictions which are the least onerous for achieving that objective– The SVP must suffer from a treatable mental disorder – The mental disorder must be of such a nature or

quality that it likely will result in serious bodily harm to another person but for state intervention

• Starnaman v. Penetanguishene Mental Health Centre (1995), 24 O.R. (3d) 701 (Ont. C.A.)

Preventative Measures for Long-Term Offenders • Mental disorder is not a prerequisite• The criteria and procedure for designation

as a long term offender (LTO) are set out in Part XXIV of the Criminal Code (s.753.1):– The predicate offence must be conduct in a

sexual matter such that a two year sentence of imprisonment would be imposed

– It must further be established that there exists a likelihood of causing injury, pain or other evil to other persons in the future through offences similar to the predicate offence

Preventative Measures for Long-Term Offenders• LTO sentencing provides for long term

supervision aimed at cases where an established offence cycle with observable cues is present, and where a long term relapse prevention approach is indicated

• The LTO Order comes into effect when the offender’s sentence is served

• Treatment can be imposed as a condition of community release

• The non-compliant offender is returned to prison and the clock stops

• R. v. Johnson (2003), 177 C.C.C. (3d) 97 (S.C.C.)

I wouldn't ever set out to hurt anyone deliberately unless it was, you know, important —like a league game or something.

Dick Butkus

The Sex Offender Registry • In June 1998, three months after Joseph Fredericks was

released from prison for the rape of a child, he abducted another child, Christopher Stephenson, from a shopping mall in Brampton, Ontario. Christopher was sexually assaulted, mutilated and the 11 year-old was left to bleed to death in a wooded area – it was a catalyst case

• On December 15, 2004, the Sex Offender Information Registration Act (SOIRA) enacted Canada’s first-ever National Sex Offender Registry

• The Registry is maintained by the RCMP and police agencies (not the public) in every province and territory can access the database

The Sex Offender Registry• The animating objective for the database

was to provide the police with important information that will improve their ability to investigate crimes of a sexual nature by identifying possible suspects known to reside near to the offence site

• Persons convicted of a designated sex offence as defined by the SOIRA may be ordered to register

• Sex offenders must report to a registration centre and must re-register annually and every time they change address or legal name

Community Notification Laws

• The practice of community notification has grown in recent years and is becoming increasingly controversial

• The Corrections and Conditional Release Act directs prison authorities to provide identifying information to agencies authorized to supervise and monitor sex offenders

• Knowledge of a sex offender can be helpful if community members view themselves as support to that offender in his reintegration

Is the purported benefit to the public interest illusory? • Notification laws, protocols and regulations

have been enacted in most provinces to make the presence of high-risk offenders known to the public

• There is no single method of notifying the community. The term embraces methods as diverse as creating web sites, holding community meetings, notifying staff at places which children frequent, creating bulletin boards, and issuing press releases

• But are communities safer for knowing that high risk offenders are in their midst?

• Widespread community notification without public education heightens fear of victimization

• In most cases communities react with fear and outrage, rather than support and supervision

Do the ends justify the means?• The label ‘sexually violent predator’,

particularly a child sex offender or pedophile, carries an extraordinary stigma

• The fear of an unendurably hostile community reception creates powerful psychological stress for offenders about to be released from incarceration

• There is little evidence, however, about the impact of community notification on sexual reoffending

• It is reasonable to assume that when notice impedes reintegration, the risk of violent recidivism is elevated

CTVConvicted pedophile moves out Updated Thu. Oct. 19 2000 1:12 PM ETA convicted pedophile living in west-end Toronto since his release from prison

over the weekend has decided to move.Peter Whitmore, 29, had been staying at a home in Etobicoke, but has left the

residence for an undisclosed location. It's believed he will stay with his lawyer until a more permanent address can be found for him. Toronto police are reportedly trying to place him in British Columbia.

On Wednesday, about 1,500 citizens jammed into a town hall meeting in Toronto and angrily called for action to get the man out their neighbourhood.

Parent Oriana Pintaric expressed the anger of many in the room by saying,I am quite upset at the criminal justice system, that they have failed our children by releasing this person has committed more than one offence.

Whitmore was convicted in 1993 for sexual offences involving children. He has refused psychological counselling for his crimes.

He is under a court order to stay away from children and any place children congregate, unless in the company of an adult.

Actuarial Instruments and the Incapacitation of Risk • High risk offender proceeding typically

commence with an assessment that produces an everlasting actuarial score

• The score does not inform treatment needs• Successful treatment intervention is not

reflected in the actuarial score• The score does not inform management

needs• Good management of risk is not reflected in

the actuarial score• A spectrum of behavior from spitting to

murder with an unknown event horizon is forecast

The VRAG / SORAG

• The liberty interest at stake in these proceedings is enormous

• The VRAG predicts sexual recidivism about as well as the SORAG

• The VRAG does not accurately assess the likelihood of sexual recidivism

• The error rate is unknown• What does the VRAG or SORAG test

scores import for the objective of protection of the public at the Community Interface?

Wrap-up and Questions

What do you think?

Daniel J. Brodsky, LLBCriminal Defence LawyerToronto, ON, Canada

(416) 964-2618DBrodsky@Daniel-

Brodsky.com