‘An ex­tra­or­di­nary sen­tence with ex­tra­or­di­nary im­pli­ca­tions’

Regina Leader-Post - - Week Ender - By BARB PA­CHO­LIK

“The dan­ger­ous of­fender pro­vi­sions are awe­some and the im­pli­ca­tions dra­co­nian ... Most would agree that it is com­par­a­tively easy to qual­ify re­peat of­fend­ers as dan­ger­ous of­fend­ers. Surely such a sen­tence must be in­tended only for the ex­treme cases where the risk to so­ci­ety is un­ac­cept­ably high, and there is no re­al­is­tic hope for rehabilita­tion.”

Those words are from a court rul­ing as a judge wres­tled with the de­ci­sion of whether or not to im­pose an in­de­ter­mi­nate sen­tence that would most cer­tainly keep an of­fender be­hind bars for years, even decades more likely, and quite pos­si­bly un­til he dies.

At the heart of the is­sue is this: What ex­actly IS a dan­ger­ous of­fender? Who would, or should, qual­ify as one? How does our jus­tice sys­tem shoul­der the re­spon­si­bil­ity of fairly im­pos­ing what is ar­guably one of the harsh­est penal­ties in Cana­dian law?

Is War­ren Joseph Raphael a dan­ger­ous of­fender (DO)? The 44-year-old Regina man has killed three peo­ple. A lethal com­bi­na­tion of drink­ing, car­ry­ing a knife, and a pen­chant for get­ting into fights around bars and par­ties ended in three man­slaugh­ter con­vic­tions span­ning half his life.

Or con­sider Ver­non Ed­ward Blaker. Three months af­ter be­ing sent to a Regina half­way house to fin­ish his sen­tence for rap­ing a 13year-old girl, he held a knife to the throat of a Regina store owner, un­zipped his pants and de­manded oral sex. Her re­fusal ended in a scuf­fle, and Blaker never made good on his threats be­cause she fainted. He fled with $300. He would later tell po­lice he had con­tem­plated “dump­ing” the woman when he chased her down a hall­way — and could never ex­plain why he didn’t.

How about Michael Chad Ewenin? He held up a Regina gas sta­tion at knife­point.

Al­berta law pro­fes­sor San­jeev Anand, for­merly of Saskatchew­an, says the DO ap­pli­ca­tions that tend to come be­fore the courts “are the ones where the Crown has a rea­son­able chance of con­vinc­ing the judge that this is one of the worst of the worst. Quite frankly, that’s the way it should be. It’s an ex­tra­or­di­nary sen­tence with ex­tra­or­di­nary im­pli­ca­tions.”

In Saskatchew­an, DOs have typ­i­cally been the likes of Ja­cob Leroy An­drew Green. Re­jected by a young Moose Jaw woman he had dated less than a month, Green stabbed her 36 times, her fa­ther 24 times, and her mother 12 times. In­cred­i­bly, they man­aged to sur­vive; Green’s stab­bing vic­tim six years ear­lier had not.

More of­ten, the DO law has been used for sex of­fend­ers such as Clif­ford Barry How­dle, who had been out of prison for less than a month when he went on a 30-hour crime spree in cen­tral Saskatchew­an, con­fin­ing and bru­tally rap­ing three women. At the time, he was on day pa­role for sex­u­ally as­sault­ing two women.

In re­cent years, an­other sort of of­fender has joined these ranks. These of­fend­ers haven’t killed or raped any­one. Fu­elled by drugs and booze, they’re re­peat cus­tomers of the jus­tice sys­tem, rack­ing up lengthy records pri­mar­ily for prop­erty of­fences, drunk driv­ing, and breach­ing court or­ders, but more im­por­tantly with suf­fi­cient vi­o­lent crimes of vary­ing de­grees — rob­beries, threats, and as­saults — to qual­ify as a dan­ger­ous of­fender. Their last of­fence was the last straw. Andy Harold Peekeekoot crossed that line when he pulled out a knife and threat­ened to use it — he didn’t ac­tu­ally strike any­one with more than his fists — dur­ing a bar­room brawl in which he got hit with a chair. The law didn’t seem to view it, or his crim­i­nal record, too se­ri­ously at first. He was re­leased with just a prom­ise to ap­pear in court. But in the end, that scrap added two more counts of as­sault with a weapon to a record that al­ready in­cluded 20 vi­o­lent of­fences, mostly for Peekeekoot hit­ting, spit­ting at or kick­ing staff at the fa­cil­i­ties where he was jailed, but one of­fence, also a bar fight, re­sulted in se­ri­ous in­juries.

Peekeekoot is serv­ing the same penalty as Green and How­dle. They’re dan­ger­ous of­fend­ers do­ing in­de­ter­mi­nate sen­tences. In the words of one of Peekeekoot’s friends “he’s not a choir­boy” — but is it time to lock the 30year-old up, just short of throw­ing away the key?

“I do con­sider it (the DO law) a blunt in­stru­ment. I think they’re re­sort­ing to it far be­fore it be­ing the last re­sort,” says Saska­toon lawyer Dar­ren Ar­mitage, who has rep­re­sented some of the prov­ince’s DOs. “My ex­pe­ri­ence is that the thresh­old is con­tin­u­ally low­ered,” he con­tends.

Saskatchew­an has be­come quite adept at lock­ing away those deemed a le­gal dan­ger, boast­ing the high­est DO rate per capita among the prov­inces. Our courts have des­ig­nated 49 DOs — five times more than Man­i­toba with a sim­i­lar pop­u­la­tion.

The num­bers have some crit­ics won­der­ing if the law that was once used so rarely to tar­get the “worst of the worst” is now catch­ing the mod­er­ate of the bad in a widen­ing net.

“Some of the ear­lier Supreme Court of Canada de­ci­sions ac­tu­ally make ref­er­ence to these des­ig­na­tions be­ing left for the ab­so­lute worst of the worst in that low per­cent­age of the very high end,” says Regina de­fence lawyer Jeff Dea­gle.

“And I don’t think that’s what it’s be­ing used nec­es­sar­ily for any­more,” Dea­gle adds.

Evolv­ing law, pub­lic pres­sure, a law-and-or­der govern­ment, more ef­fi­cient track­ing sys­tems, and so­cial trends are cited as the rea­sons for lock­ing up an in­creas­ing num­ber of men (there are no fe­male DOs).

Se­nior Crown pros­e­cu­tor Tony Gerein says it should not be pre­sumed the DO pro­vi­sions are in­tended for the worst of the worst — or even that those num­bers are small. “I’ve heard it from some peo­ple that this is in­tended for se­rial killers and se­rial rapists. That’s not what (the law) says,” Gerein notes. “I think most of the pub­lic would agree that if some­one goes around break­ing some­body’s legs, or break­ing peo­ple’s noses, or stab­bing them non-fa­tally, even though they’re not in one sense per­haps the worst of worst be­cause they’re not se­rial killers, that they’re still ex­actly the kind of peo­ple that Par­lia­ment needs to pro­tect the pub­lic from un­less and un­til the risk they pose can be man­aged in the com­mu­nity.

“It’s not about the worst of the worst. It’s about the peo­ple who pose an on­go­ing dan­ger to the pub­lic, and sig­nif­i­cant, mean­ing­ful dan­ger,” he adds.

Saska­toon foren­sic psy­chi­a­trist Dr. Mans­field Mela has tes­ti­fied at some of Saskatchew­an’s DO hear­ings. He ques­tions whether the sys­tem is al­ways tag­ging the right peo­ple. Mela cites a study that com­pared a group of DOs with in­mates who had strik­ingly sim­i­lar crim­i­nal his­to­ries, ages, of­fences, and rea­sons why they landed in cus­tody — but weren’t DO’d. He sug­gests the court process and plea bar­gains play a role in who be­comes a DO and who does not. “First and fore­most, are we re­ally catch­ing the right dan­ger­ous of­fend­ers? The an­swer is au­to­mat­i­cally no,” he says.

“Se­condly, when you come into the prison sys­tem, you are de­clared dan­ger­ous, so you’re the type of per­son who is dan­ger­ous. You’re here be­cause you have an in­de­ter­mi­nate sen­tence. You’re not fit for so­ci­ety. So there’s not even a biggest con­sid­er­a­tion for why they should be looked at (for pa­role) in the first place,” Mela adds.

But if there is a de­gree of dan­ger­ous, are the courts, pa­role or cor­rec­tional of­fi­cials draw­ing those dis­tinc­tions, es­pe­cially given the im­pli­ca­tions of the DO sta­tus? Should Canada’s tough­est sen­tence be re­served for the bad­dest of the bad? As one court of ap­peal judge asked, sim­ply be­cause some­one meets the cri­te­ria of a dan­ger­ous of­fender, should they be des­ig­nated? Is it a thresh­old, or a spec­trum? “Where are we go­ing in the fu­ture of Part 24 (DO ap­pli­ca­tions)?” asked Jus­tice Ge­orgina Jack­son dur­ing a re­cent DO ap­peal.

To­day the Leader-Post be­gins a six-part in­ves­tiga­tive se­ries that will ex­am­ine the dan­ger­ous of­fender law. It will look at who has been DO’d and the ris­ing num­bers, meet some of the men serv­ing in­def­i­nite sen­tences, and ex­am­ine what it means for those men, and for tax­pay­ers, who have spent al­most $2-mil­lion per of­fender keep­ing some of this prov­ince’s long­est-serv­ing DOs be­hind bars.

Who is the dan­ger­ous of­fender? It isn’t Raphael, the killer; or Blaker, the rapist. Both re­ceived long sen­tences, but they know when those terms will end. The DO is Michael Ewenin, who walked away with $280 and 12 packs of cig­a­rettes by threat­en­ing to “shank” a gas sta­tion at­ten­dant with the knife he car­ried. The vic­tim was shaken but oth­er­wise not hurt. It was Ewenin’s sev­enth vi­o­lent crime, only one of which re­sulted in se­ri­ous in­juries or a prison sen­tence.

But in the eyes of the law, his last of­fence was one too many .

The 33-year-old Regina man, now serv­ing an in­de­ter­mi­nate sen­tence, is the first to ad­mit he’s no an­gel.

“I de­serve time, no doubt about that ... But I don’t de­serve this tag, or this sen­tence,” he says. “I have my own per­sonal demons to over­come, but I don’t de­serve a life sen­tence.” Canada

has been grap­pling with how best to get dan­ger­ous peo­ple off the streets since it cre­ated The Ha­bit­ual Of­fender Act in 1947, al­low­ing “pre­ven­ta­tive de­ten­tion” for those with lengthy crim­i­nal records. A sec­ond law was cre­ated a year later for so-called “sex­ual psy­chopaths” with the goal of get­ting them mental-health treat­ment. But with such vague le­gal lan­guage, it was tough to prove and was re­placed by the Dan­ger­ous Sex­ual Of­fender (DSO) Act in 1960. A 1969 fed­eral re­port found both laws were be­ing ap­plied er­rat­i­cally and in­ef­fec­tively. The ha­bit­ual of­fender law was be­ing used to in­def­i­nitely lock up re­peat nui­sance and prop­erty of­fend­ers. And the DSO law was ex­clud­ing non-sex­ual, vi­o­lent of­fend­ers.

They were re­placed in Oc­to­ber 1977 by the dan­ger­ous of­fender law in use to­day. Any­one con­victed of a “se­ri­ous per­sonal in­jury of­fence,” in­clud­ing sex­ual and non-sex­ual vi­o­lent of­fences, who has shown a repet­i­tive and per­sis­tent pat­tern of ag­gres­sive be­hav­iour and failed to re­strain those be­hav­iours can qual­ify as a dan­ger­ous of­fender.

Two decades later the law was over­hauled. The wait­ing pe­riod for a DO’s first manda­tory pa­role re­view went to seven years from three (and ev­ery two years there­after), and in­de­ter­mi­nate terms for DOs be­came manda­tory, tak­ing away the op­tion of a fixedterm sen­tence. A new cat­e­gory was also cre­ated, al­low­ing for long-term of­fender (LTO) or­ders. One step short of a DO, LTOs get a def­i­nite prison sen­tence of two years or more, fol­lowed by up to 10 years of su­per­vi­sion in the com­mu­nity. Judges in DO ap­pli­ca­tions are bound to first con­sider if an of­fender should in­stead be an LTO — if he has a rea­son­able pos­si­bil­ity of even­tual con­trol in the com­mu­nity. To date, there have been 52 longterm of­fender or­ders is­sued in Saskatchew­an, mostly stem­ming from LTO ap­pli­ca­tions by the Crown. Very rarely has a DO ap­pli­ca­tion ended in an LTO.

Dea­gle be­lieves the DO net be­gan to widen with the 1997 changes.

“The feel­ing I have is that in­stead of leav­ing a dan­ger­ous of­fender des­ig­na­tion as the worst of the worst, when we had the long-term of­fender pro­vi­sions come into force ... it kind of loos­ened it up a bit,” he says.

“Es­sen­tially what hap­pens is you have re­peat of­fend­ers now be­ing sought to be longterm of­fend­ers, which I don’t think is what the leg­is­la­tion was in­tended to do.” And some of those re­peat of­fend­ers, like Ewenin and Peekeekoot, are also be­com­ing DOs. Dea­gle also ques­tions the ap­pli­ca­tions launched against of­fend­ers who are still in their early 20s. “It’s cer­tainly a con­cern that they’re look­ing at it that early,” he says.

Ac­cord­ing to the fed­eral govern­ment, since 1977 there had been 516 men clas­si­fied as dan­ger­ous of­fend­ers as of Oc­to­ber last year. (Un­der the pre­vi­ous law, there were 88 DSOs and 122 ha­bit­ual of­fend­ers.) There are about 20 to 30 new DO des­ig­na­tions each year — a trend that be­gan in the mid-1990s. Be­fore that time, there were gen­er­ally fewer than 10 new DOs across Canada an­nu­ally.

Fur­ther changes in 2008 en­sured even more of­fend­ers are con­sid­ered for DO ap­pli­ca­tions. Likened to the Amer­i­can “three strikes” law (which sends of­fend­ers to prison for life for their third se­ri­ous of­fence), The Tack­ling Vi­o­lent Crime Act cre­ated a “pre­sump­tion of dan­ger­ous­ness,” mean­ing of­fend­ers with three con­vic­tions for vi­o­lent or sex­ual of­fences that would re­sult in a sen­tence of two years or more now have to prove why they shouldn’t be de­clared dan­ger­ous of­fend­ers in­stead of the pros­e­cu­tion hav­ing to prove why they should be.

“(It’s) very strange that it’s a re­verse onus in a sit­u­a­tion where the con­se­quences are ef­fec­tively a life sen­tence,” says Ar­mitage.

The Cana­dian Crim­i­nal Jus­tice As­so­ci­a­tion raised con­cerns about the change be­fore it was passed, say­ing it put de­fen­dants at “a se­ri­ous dis­ad­van­tage.” Gerein, a pros­e­cu­tor, says that while the change en­cour­ages the Crown to con­sider bring­ing a DO ap­pli­ca­tion in such cir­cum­stances, that doesn’t nec­es­sar­ily mean it will. He says the Crown is more likely to seek a psy­chi­atric as­sess­ment to de­ter­mine the of­fender’s suit­abil­ity for an ap­pli­ca­tion. And he adds that the de­fence doesn’t have to prove be­yond a rea­son­able doubt that the per­son isn’t a DO. “They just have to say it’s more likely than not that the per­son isn’t a dan­ger­ous of­fender.”

But crit­ics say it’s easy to qual­ify for a DO ap­pli­ca­tion, and once you qual­ify, it’s easy to be­come one.

“Why are so few of these ap­pli­ca­tions suc­cess­fully de­fended? Does the Crown re­ally al­ways get it right, or is it be­cause the ac­cused is not on a level play­ing field and can­not bal­ance out the equa­tion?” asks Regina lawyer Bob Hrycan. He notes some peo­ple from un­for­tu­nate back­grounds will act out in anti-so­cial ways on oc­ca­sion and de­velop a pat­tern of crim­i­nal of­fences. “Peo­ple de­velop crim­i­nal records. At the end of the day, that does not au­to­mat­i­cally mean they should be DO’d. The bar is just low­ered.”

While Gerein agrees the courts usu­ally rule in the pros­e­cu­tion’s favour in a DO ap­pli­ca­tion, he says it’s be­cause the Crown is get­ting it right — choos­ing only those of­fend­ers for which a des­ig­na­tion is ap­pro­pri­ate and likely. “To es­cape with­out even an LTO is very, very dif­fi­cult ... We’re not bring­ing these ap­pli­ca­tions on peo­ple who are out com­mit­ting petty crimes,” he adds.

Gerein re­jects ar­gu­ments of net-widen­ing or lower thresh­olds. “Who are our dan­ger­ous of­fend­ers? Many of them are not sex­u­ally vi­o­lent. Many of them are vi­o­lent in other ways. It’s an in­ter­est­ing ar­gu­ment to say, ‘My guy’s got 100 pri­ors for crimes, but only 15 of them are for vi­o­lence.’ What? How many? And how many times has this per­son been to the pen­i­ten­tiary be­fore for vi­o­lence, and they’re still be­ing vi­o­lent. What are we sup­posed to do?”

Dea­gle says the de­fence also has an up­hill bat­tle sim­ply be­cause of the na­ture of the ev­i­dence. “The Crown has the ad­van­tage to rely on (an of­fender’s crim­i­nal) his­tory, while the de­fence has the dis­ad­van­tage to try and prove the fu­ture. It’s tough to do,” he says.

“How do I prove that to­mor­row will be a dif­fer­ent day for him? How do I prove that this is the life-chang­ing event ... be­ing faced with an in­de­ter­mi­nate pe­riod of in­car­cer­a­tion where there’s no spe­cific end date. How do I prove that that is the turn­ing point?” Dea­gle

and oth­ers worry about the net be­ing cast too wide, be­cause be­ing a DO car­ries sig­nif­i­cant con­se­quences.

Just ask Saskatchew­an’s long­est-serv­ing DO, Leslie Klassen, who is clos­ing in on his fourth decade be­hind bars. He was a nui­sance flasher who be­came a dan­ger­ous man. But still, 40 years?

Mau­rice Ray­mond Toule­jour was sit­ting on re­mand at the Regina Cor­rec­tional Cen­tre in 2007 and fac­ing the prospect of be­ing DO’d if con­victed of his charges. Toule­jour was hav­ing some per­sonal dif­fi­cul­ties, and it re­mains un­clear what role, if any, a po­ten­tial DO ap­pli­ca­tion played in his de­ci­sion to take his life at the jail. But it must have been weigh­ing on his mind.

Fel­low in­mate Charles Ge­orge Key later told a coro­ner’s in­quest “Touley” — as he was known — men­tioned that pros­e­cu­tors were try­ing to “DO” him. Key him­self un­der­stood the jeop­ardy; at that point, the Crown was de­bat­ing whether to launch an ap­pli­ca­tion against him as well.

“Ev­ery­body’s concerned when they men­tion that, ’cause you’re never get­ting out. That’s life, life, life with­out pa­role,” Key told the in­quest.

An in­de­ter­mi­nate sen­tence is not tech­ni­cally a life sen­tence, but in the face of the sta­tis­ti­cal odds of get­ting out, it has earned that rep­u­ta­tion. (Even Green’s last pa­role re­view re­port in­cor­rectly, but per­haps tellingly, states he’s serv­ing “life” rather than an in­de­ter­mi­nate sen­tence.)

There was plenty of de­bate about no­to­ri­ous child sex of­fender Peter Whit­more’s pref­er­ence for a life sen­tence rather than the risk of be­ing dubbed a DO. It’s true, as jus­tice of­fi­cials pointed out at the time, that Whit­more’s ear­li­est pa­role el­i­gi­bil­ity date was at seven years af­ter en­ter­ing cus­tody, re­gard­less of which route he took. But it’s likely the sea­soned crim­i­nal’s ac­cep­tance of the deal had more to do with his odds at pa­role as a lifer ver­sus a DO, rather than want­ing to spare his vic­tim the trauma of tes­ti­fy­ing.

Per­haps even the law grasps the dif­fer­ence. Not con­tent with Paul Bernardo’s life sen­tence for two counts of murder, pros­e­cu­tors in On­tario went one step fur­ther to en­sure the prison door was very firmly closed by also suc­cess­fully ap­ply­ing to have him des­ig­nated a dan­ger­ous of­fender.

DOs are au­to­mat­i­cally re­viewed reg­u­larly by the Na­tional Pa­role Board (NPB). But they don’t get out un­til they can con­vince pa­role of­fi­cials it’s safe to re­lease them — and that’s no easy task. Some of Saskatchew­an’s ear­li­est DOs are ei­ther dead or near­ing 20 years be­hind bars since they were des­ig­nated — more time than many killers will serve. On the slim chance they do get out, they’ll re­main on pa­role for life. Nei­ther NPB, the Cor­rec­tional Ser­vice of Canada, nor Statis­tics Canada could say cu­mu­la­tively how many of Canada’s DOs have been paroled, but when counts were taken on March 31 last year, only four per cent of the DOs then in the fed­eral sys­tem were on some form of con­di­tional re­lease (in­clud­ing day and full pa­role.) Among fed­eral of­fend­ers gen­er­ally (any­one sen­tenced to at least two years), about 40 per cent were on re­lease.

“You want to talk about truth in sen­tenc­ing,” says Regina lawyer Hrycan, ref­er­enc­ing the govern­ment’s re­cent an­ticrime bill. “The only truth in sen­tenc­ing would be a law which sim­ply states once we de­cide you’re hope­less, we’re go­ing to throw you in jail for the rest of your life. And there’s re­ally not much you can do about it.”

Gerein in­sists it’s not fair to say these men will be locked up vir­tu­ally for­ever, or that an in­de­ter­mi­nate sen­tence is po­ten­tially harsher than a life sen­tence. “It’s a ques­tion of, is this per­son safe to re­lease?

“Why shouldn’t you be gone un­less and un­til you get to the point where you are not go­ing to do that any­more?” he asks.

If an in­de­ter­mi­nate sen­tence means decades be­hind bars, shouldn’t the courts con­sider the po­ten­tial im­pact in de­cid­ing if some­one should be DO’d? Some de­fence lawyers have tried to press that point — and lost.

But there’s no es­cap­ing the odds. “The re­al­ity is the Na­tional Pa­role Board is very loathe to re­lease dan­ger­ous of­fend­ers,” says law pro­fes­sor Anand.

Slipped in amongst the changes to the DO law in 2008 is a new, lit­tle-known clause. It again gives the judge the op­tion of im­pos­ing a fixed-term sen­tence for a DO.

Anand is baf­fled as to why it was put back in. “It al­most seems like an oxy­moron. If the per­son is a dan­ger­ous of­fender, he shouldn’t be get­ting a de­ter­mi­nate term.

“What’s the mes­sage to the pa­role board now? Be­fore it was quite clear — DO, don’t re­lease. Now it’s DO, maybe you can re­lease?” he says, adding it’s un­likely an op­tion that will be sought by the pros­e­cu­tion.

If the past is any pre­dic­tor of the fu­ture — a phrase of­ten ut­tered when judges are grap­pling with whether or not to DO some­one — it’s un­likely many DOs will start get­ting def­i­nite sen­tences. Prior to 1997 when there were no LTOs and judges could im­pose a fixed sen­tence on a DO, only two of Saskatchew­an’s DOs re­ceived a def­i­nite sen­tence.

One of those men, Arthur Ross, was DO’d in Saskatchew­an in 1997, sen­tenced to 16 years in prison and or­dered to serve at least half that time be­fore pa­role el­i­gi­bil­ity. He launched a court chal­lenge in 2008 be­cause he was held be­yond his statu­tory re­lease date (gen­er­ally af­ter two-thirds of a fed­eral sen­tence) and lost. The pa­role board or­dered him held un­til his sen­tence ex­pires in 2013 — which will still see him out sooner than most DOs serv­ing in­de­ter­mi­nate sen­tences.

To­day Ewenin’s fam­ily, know­ing the odds, won­ders how long his in­de­ter­mi­nate prison term will last. How long would be long enough?

“It’s worse than if he died. It’s over. It’s fi­nal,” says his aunt Lil­lian Pi­apot. “But this is a liv­ing death.”

Leader-Post files

Some of Saskatchew­an’s 49 men who have been des­ig­nated dan­ger­ous of­fend­ers over the years in­clude (top row left to right) Randy Burgmann, Larry Deck­ert, Wil­liam Aikens; (mid­dle row left to right) Louis Rudolph An­toine Bar­ron aka Allen War­ren Hansen,...

Leader-Post files

The Saskatchew­an Pen­i­ten­tiary is home to many dan­ger­ous of­fend­ers.

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