SCC allows for more dangerous offender assessments

The Supreme Court of Canada today made it easier for Crown prosecutors to apply for assessment under the dangerous offender and long-term offender provisions — potentially allowing more criminals to be held for indeterminate sentences.

In R. v. Steele — a case that pits the concept of public safety against the principle of proportional sentencing — the SCC overturns two previous rulings that had determined that threats of violence do not, on their own, constitute violence.

The appeal stems from the case of John Steele, who was convicted of a drugstore robbery in which he announced that he had a gun. The weapon, however, was never brandished, and no one was physically hurt.

Nevertheless, the Crown sought an assessment of Steele under the long-term and dangerous-offender provisions, which could lead to incarceration for an indeterminate period of time.

David Soper, the legal aid lawyer who represented Steele before the Supreme Court, challenged the application: “There was always a counter between the robber and the clerks,” he says. “There was no sign of a weapon. No one got touched. No one got hurt.”

As a result, Soper believed that Steele’s crime did not meet the threshold of “serious personal injury” required for an assessment under the dangerous offender provisions.

Those provisions, incidentally, require either: (a) use or attempted use of violence against another person; or (b) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person.

The Crown argued that the threat of violence could “inflict severe psychological damage,” but failed to prove its case at trial, and then failed again at the Manitoba Court of Appeal.

Both rulings were struck down in today’s verdict, which makes a semantic leap. It rules that psychological damage need not be proven where threats of violence are uttered — the threats are themselves violent incidents.

“All threats of violence are themselves violent,” the decision states, “even though the seriousness of the violence may be quite limited.”

“The Court of Appeal’s interpretation is inconsistent with the clear language of subpara. (a)(i) of the definition [of a serious personal injury offence], which requires violence, not serious violence, and it risks undermining the overall purpose of Part XXIV [of the Criminal Code] by precluding courts from remanding potentially dangerous offenders for assessment.”

While the court points out that an assessment will not automatically lead to a dangerous offender designation, Soper worries that the court has sacrificed the fundamental principle of proportionality in the name of public safety.

“Our argument was that the principle of proportionality is such a fundamental principle that it means that one ought to take a very hard look at the definition of a serious personal injury offence,” he says.

“Where you widen the gate and allow greater access to the dangerous or long-term offender provisions, then it can be said to do some damage to the principle of proportionality.”

By allowing for a broad interpretation of a “serious personal injury offence,” Soper says the court has made a significant departure from past jurisprudence, which had determined the word “serious” in the title meant that minimal levels of violence did not qualify for dangerous offender assessments

Moreover, Soper says that the ruling creates law that might have been best left to government: “Parliament could easily have stated that violence for the purposes of the serious personal injury offence included the use, attempted use, or threatened use of violence. But they chose not to do so.

“So we took the view that, because proportionality is such a fundamental concept in the criminal law, to get around the principle of proportionality, more would be required from Parliament.”

These arguments were considered and rejected by the court, and Soper says the message couldn’t be any clearer: “They’ve said that all threats are violence are themselves violence. So that if you make a threat against a person, that is, the Supreme Court has told us very clearly, the use or attempted use of violence. Period.”

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