‘An extraordinary sentence with extraordinary implications’
“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.”