Dangerous Offenders: An Analysis of Judicial Sentencing Decisions

Abstract

Objective: The present study explored Dangerous Offender (DO) judicial sentencing decisions in Canada by examining judicial decision maker’s written comments regarding a) experts’ ratings of risk, treatment amenability, and risk management in the community, b) partisanship, c) experts’ discussion of static, dynamic, and protective factors, d) the effect of the 2008 legislation change, e) ethnicity, and f) jurisdictional differences. Method: The study was archival and retrospective. There were 140 written sentencing decisions identified in four Canadian provinces (BC, AB, SK, and MB) via CanLII (publicly accessible) between July 2, 2008 and July 2, 2018. Results: Results indicate that the judicial decision makers’ interpretation of experts’ ratings of risk, treatment amenability, and risk management in the community were strongly associated with and significantly contributed to penalty outcomes. Generally, the trend that appeared was that the judicial decision makers’ interpretation of lower risk ratings, higher ratings of treatment amenability, and higher risk manageability in the community resulted in a much lower likelihood a Defendant would receive an indeterminate sentence. Moreover, the results suggest that the judicial makers’ note a substantial amount of agreement on all three assessment areas when multiple experts are present. The judicial decision makers’ interpretation of the experts’ discussion of static, dynamic, or protective factors was not influential on outcomes. The 2008 legislation change appears to contribute little in terms of the designation stage but has influenced the penalty stage. Further, Defendants with an Indigenous heritage now have a 50% chance of receiving an indeterminate sentence compared to 84% prior to the legislation change. Saskatchewan continues to have not only a disproportionate number of DOs but also DOs of Indigenous heritage. The results indicate that BC, AB, and MB have not changed their penalty patterns significantly since the 2008 legislation change, but Saskatchewan has. Discussion: Results generally supported previous research indicating that the judicial decision makers’ interpretation of expert risk assessments influence preventative detention hearings and that partisanship continues to exist even though legislation changes have attempted to reduce it. Results also indicated that the 2008 legislation change has had an impact on penalty outcomes but not designation outcomes. Moreover, although Indigenous peoples are disproportionately represented, under the 2008 legislation change, they are as likely to receive a determinate sentence with an LTSO as an indeterminate sentence. Implications of the results are discussed in terms of the validity and application of special sentencing designations in Canada.