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SOC346H5 (14)
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Ch11.docx

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Department
Sociology
Course
SOC346H5
Professor
Nicole Myers
Semester
Winter

Description
Ch.11 Preventive Detention  Preventive detention refers to confinement or control which, instead of responding to harm that has already been caused, is based on a perception of risk or fear of future crimes  The current view seems to be that a life sentence can be justified by a qualitative evaluation of the brutality of an offence, viewed in light of prior occurrences, if it compels a conclusion that public safety is the overwhelming sentencing consideration  When the argument is that psychiatric evidence of continuing dangerousness compels a preventive response, a life sentence should not be imposed if the nature of the offence, viewed either in isolation or in the light of prior offences does not justify it History of Preventive Detention in Canada  A habitual criminal was defined simply as someone who had been convicted at least 3 times previously of an indictable offence punishable by more than 5 years imprisonment  Criminal sexual psychopath was anyone who by a course of misconduct in sexual matters has evidenced a lack of power to control his sexual impulses and who as a result is likely to attack or otherwise inflict injury, loss, pain or other evil on any person  A dangerous offender application is part of the sentencing process, an individual is entitled to be sentenced in accordance with the sentencing regime extant at the time of the offence unless a subsequent enactment ameliorates the penalty The Dangerous Offender Provisions  A dangerous offender haring, which may lead to indeterminate confinement, occurs after conviction in he place of an ordinary sentencing hearing  Central to the dangerous offender designation is a conviction for an antecedent offence which is described as a “serious personal injury offence”. Section 752 of the Criminal Code defines this category as a. An indictable offence, other than high treason, treason, first degree murder or second degree murder involving I. The use or attempted use of violence against another person II. 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, and for which the offender may be sentenced to imprisonment for 10 years or more b. An offence or attempt to commit an offence mention in section 271 sexual assault  The antecedent offence must either be a sexual assault, regardless of the category, or an indictable offence punishable by more than ten years imprisonment that involved violence, actual or threatened or represented a danger to the life, safety or psychological well being of another person  The pre-requisites for a demand are as follows:  The person has been convicted, but not yet sentenced of a person injury offence or an offence under section 753 1(1)(a)  There are reasonable grounds to believe that the offender might be found to be a dangerous or long term offender  The resulting assessment will be filed with the court and used in evidence if there is a subsequent dangerous or long-term offender application  This single overarching assessment replaces the previous requirement that each party retain their own psychiatrist to give evidence at the dangerous offender hearing  Aside from filing a section 752.1 report, there are a number of procedural requirements before a dangerous offender application can proceed  The attorney general of the province in which the trial took place must consent to the application before the hearing commences. Also, the prosecutor must give at least 7 days notice to the offender including outlining the basis for the application The Dangerous Offender Test #1  The test for determining whether the offender is a dangerous offender is set out in section 753(1) and has 2 possible branches  The first branch follows a conviction for a serious personal injury offence described in section 752(a), a violent indictable offence punishable by imprisonment for ten years or more. It requires a finding that the offender constitutes a threat to the life safety or phsycial or mental well being of other sons. 1. A pattern of behavior showing a failure to restrain his or her behavior or likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behavior or 2. A pattern of persistent aggressive behavior showing a substantial degree of indifference respecting the reasonably foreseeable consequences to other persons of his or her behavior 3. Any behavior associated with the offence that is of such a brutal nature as to compel the conclusion that the offender’s behavior in the future is unlikely to
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