On September 17, 1996, Allan Rock, Minister of Justice and Attorney General of Canada, and Herb Grey, Solicitor General of Canada, announced "tough new measures" to deal with dangerous offenders. These measures were introduced in Bill C-55, which received Royal Assent on April 15, 1997. The following comment focuses on only one significant change to the dangerous offender legislation. As part of these measures, the new section 753(4) of the Criminal Code removes a judge's discretion to award a determinate sentence once an accused is found to be a dangerous offender. This discretionary power is which existed in the former legislation replaced with a mandatory indeterminate sentence imposed once an offender is labeled a dangerous offender. First, this comment briefly examines the application process and the procedure formerly involved with the dangerous offender provisions of the Criminal Code prior to the Amendment. This will serve to demonstrate the procedures and safeguards the courts must follow when labeling an accused a dangerous offender. This comment will then use the two cases of R. v. Neve (1995), 160 AR 255 (QB) and R. v. Gaudry (1996), 186 AR 91 (Prov Ct) to illustrate the expansive use the courts are making of the dangerous offender legislation. After a discussion of the purpose of the amendment, this comment turns to an examination of the Canadian Charter of Rights and Freedoms and the potential for new Charter challenges arising from the amendment. An expansive use of Part XXIV coupled with the mandatory indefinite sentence could result in the violation of an accused's Charter rights. It is likely that the courts will find a violation of section 7 of the Charter based on the Supreme Court of Canada's decision in R. v. Heywood. Subsequently, this comment analyzes the Supreme Court's past reasoning on certain issues with respect to section 7 and section 12 Charter challenges. The issues considered include the reliance of the courts on unreliable psychiatric evidence and faulty procedural safeguards. The discussion involves looking at how the Court has justified Part XXIV of the Criminal Code in the past and how some of these justifications may no longer be available since the passage of the amendment. The final section provides recommendations to address the real dangers of a mandatory indeterminate sentence and possible opportunities for new Charter challenges.
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Jennifer J Soward, "Mandatory Indeterminate Sentences under Dangerous Offender Legislation" (1998) 7 Dal J Leg Stud 189.