6 - Detention

Legislative References

Corrections and Conditional Release Act, Sections 129-132, Schedules I and II, Regulations 160

Referrals

PROPER REFERRAL

• the referring agency is of the opinion that the criteria for referral are met, and
  
  
• their conclusion is reasonable.

Cases referred by the Service and the Commissioner of Corrections are both valid referrals if properly referred. The computation for scheduling the review is calculated from the date of the first referral. A case is considered to have been referred on the day it is forwarded from the referring agent.

WITHDRAWAL OF REFERRAL

A case referred to the Board may not be withdrawn unless new information indicates that the referral criteria at the time the case was referred were not met, or the statutory release date has changed.

A request to the Board to withdraw a referral will be accepted only if the request is made, in writing, by the person(s) who made the referral or by a person designated by the Commissioner, and is accompanied by a report which outlines the reasons for the withdrawal.

Hearings

INTERIM HEARING

In certain cases referred by the Commissioner to the Chairperson of the Board it is not possible to hold a detention hearing before the offender's statutory release date. The Board must then hold an interim hearing to determine whether sufficient information exists to hold a detention hearing and to ensure the Board does not lose jurisdiction of the case. The purpose must be explained to the offender.

On completion of the interim hearing, a detention hearing may be held immediately if the Board is satisfied that all relevant information is available on which to make a decision, the information has been shared with offender, all other procedural safeguards are met, and the offender agrees to proceed. Detention hearings not held immediately following the interim hearing must be held as soon as is practicable but not later than four weeks after the case was referred to the Board, unless the hearing is postponed at the request of the offender.

DETENTION HEARING

The detention hearing is distinct from the interim hearing, therefore the members who sat on the interim hearing need not sit on the detention hearing, although they may do so.

PROCEDURAL SAFEGUARDS

Prior to commencement of the hearing procedural safeguards will be confirmed and offenders will be informed of the purpose of the hearing, the criteria to be examined and the possible decisions that can be made.

POSTPONEMENTS

The Board will postpone the detention hearing at the offender's request if a procedural safeguard can not be met. A new hearing will be scheduled to take place within two months. However, if the offender's statutory release date is within one month of an interim hearing, the Board shall deny the postponement in order to avoid losing jurisdiction and order detention pending a new hearing.

If information considered essential to the case is not available to the Board at the time of the hearing, the Board may postpone the review in order to obtain the information. However, the review must be completed within the time frames established in the Regulations, unless the offender agrees to a longer postponement. If the lack of this information results in a detention decision, a review of the decision will be undertaken when the information becomes available.

Factors to be considered

In determining the likelihood of an offender committing an offence causing the death of or serious harm (severe physical injury or severe psychological damage) to another person; a sexual offence involving a child; or a serious drug offence, the Board must take into consideration any factor that is relevant, including the factors outlined in section 132 of the Act.

Evidence of recurring sexual victimization involving children under eighteen as demonstrated by the offender's criminal history, in psychological reports or from information obtained from victims, will be considered as reliable information about the offender's sexual preferences for the purposes of paragraph 132(1.1)(b) of the Act.

DETERMINING SERIOUS HARM

• An offence which results in physical or psychological disability, incapacitation, disfigurement, or serious reduction in quality of life, where the result is permanent or long-term in nature, should, unless exceptional circumstances exist, be regarded as having satisfied the "serious harm" criterion.


• It is not necessary that an offence have a permanent or long-term effect on the victim in order to satisfy the "serious harm" criterion. For example, if a victim is severely beaten, but recovers completely from the beating, it is still possible for that offence to be considered to have caused "serious harm".


• When the Act requires that an "opinion" be formed as to whether the offence caused serious harm, the Board member's are required to exercise judgment about the severity of the harm caused. It is the Board member's judgment which is required; although the member may draw on assessments made by others such as psychologists, the member must not substitute the other's judgment for the member's.


• It is essential to bear in mind that in cases where there is no evidence of physical harm, it is still necessary to form an opinion as to whether severe psychological damage was caused. It is recognized that in many cases it will be difficult to get concrete information as to the psychological impact of the crime on the victim.


• If necessary, in order to form an opinion as to whether or not severe psychological damage was caused, Board members may draw on expert opinion; this can be achieved through consultations or discussions with a psychologist or psychiatrist, or through reference to the available literature. (N.B. For guidelines on assessment of the psychological damage aspect of serious harm, see Appendix I.)

Additionally, the following factors must be considered in formulating an opinion as to whether serious harm was caused. It is not necessary for an offence to involve each of these elements in order to meet the criterion; rather, all the dimensions must be weighted and an assessment made whether, taken together, all the elements of the offence lead to an opinion that serious harm was caused:

• the extent of injury to the victim, as assessed or indicated by medical care sought or required;


• the nature of the offence and the circumstances surrounding it, and in particular whether it involved brutality, excessive force, viciousness, or deviant sexual behaviour;


• the use of a weapon to harm or threaten the victim;


• whether or not the victim was subject to prolonged or repeated abuse or terror;


• any particular vulnerability of the victim, such as being very young, aged, infirm, helpless, or handicapped.

Decision options

Taking into account the factors above and any other relevant factors, Board members will make one of the following determinations:

1. DETENTION

Board members will order the detention of an offender where they are satisfied:

1. in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule I, that the offender is likely to commit


• an offence causing the death of or serious harm (severe physical injury or severe psychological damage) to another person, or


• a sexual offence involving a child before the expiration of the sentence;


2. in the case of an offender serving a sentence that includes a sentence for an offence set out in Schedule II, that the offender is likely, if released, to commit a serious drug offence before the expiration of the sentence; or


3. in the case of an offender whose case was referred to the Chairperson by the Commissioner, that the offender is likely, if released, to commit

• an offence causing the death of or serious harm (severe physical injury or severe psychological damage) to another person;


• a sexual offence involving a child; or


• a serious drug offence

2. STATUTORY RELEASE

If the Board members determine that the offender does not meet the criteria for detention, the offender will be released on statutory release, with or without additional conditions as deemed necessary and appropriate to facilitate re-integration and to assist in the management of the offender.

3. ONE-CHANCE STATUTORY RELEASE

If the Board members determine that the offender does not meet the criteria for detention, but are satisfied that the offender was serving a sentence for a Schedule I offence which caused death or serious harm or was a sexual offence involving a child; or was serving a sentence for a Schedule II offence; the Board members will decide whether to impose a one-chance provision on the offender's statutory release pursuant to ss. 130(4) of the Act.

When determining whether to order one-chance statutory release, Board members will take into consideration any factor that is relevant, including:

• evidence of a history of repeated failure on conditional release;


• evidence of repeated convictions for similar offences;


• the offender's progress in treatment programs;


• the extent to which the offender's release plan minimizes the risk of future violence, sexual offences against children or risk of a future serious drug offence.

Reviews of detention orders

The Board may review a detention order at any time and must review an order within one year after the order was made and thereafter within one year after the date of each preceding review, pursuant to ss.131 of the Act. The Board may order detention with an understanding that there will be a further review upon successful or near completion of the treatment program. At the review the Board must determine whether there is sufficient new information concerning the risk presented by the offender to justify modifying the order or making a new order. The behaviour of the offender must have improved sufficiently to satisfy the Board members that the offender no longer meets the detention criterion.

Residency condition following a period of detention

• the offender is identified as requiring a gradual reintegration into the community following the period of detention;


• information from correctional staff that accommodation is identified as a need area and a residency condition is viewed as a requirement to address the need;


• the condition is reasonable and necessary for the protection of society and to facilitate the offender's successful reintegration into the community; and


• bed space in a suitable residential facility is confirmed.

COMMUNITY ACCESS

Initially, offenders will be required to return to the residential facility nightly, unless otherwise authorized by the Board, in writing. As part of this decision, Board members will state explicitly the expectations that are included in the condition, including any limits or changes to access to the community.

APPROPRIATENESS OF TREATMENT CENTRES AND INSTITUTIONS AS RESIDENTIAL FACILITIES

For purposes of orders made under subpara. 131(3)(a)(ii) certain penitentiaries are designated by the Commissioner as community-based residential facilities. They should normally be used in a multi-phase plan which views detention as the first phase potentially leading to residency at a future date.

Psychiatric facilities and penitentiaries may offer very limited access to the community. If access to the community would be less in such institutions than if the inmate were in another type of community-based residential facility, a rationale for placing the offender there must be provided in the submission to the National Parole Board. For example, limited access to the community is appropriate in order to enable the offender to participate in and benefit from treatment programs that will further reduce and facilitate the management of risk in the community.

COMPLIANCE WITH RULES AND REGULATIONS

When a statutory release residency case is assigned to a psychiatric facility or penitentiary, an additional condition to respect the rules and regulations of that facility must be imposed. Statutory release residency cases are not inmates and cannot be charged with institutional offences while housed within a Correctional Service of Canada institution.

Reviews of residency orders

The Board may review a residency order at any time and must review such an order within one year and thereafter within one year after the date of each preceding review.

Review following an additional sentence

When the Board conducts a review pursuant to ss.130(3.2) of the Act to determine whether the current detention order should be amended to keep it in force until the new warrant expiry date, a full review of the case is not required given that the detention order is still in effect and a full review of the detention order will occur within one year of the previous detention decision or annual review decision.

Board members will address the information related to the additional sentence in deciding whether to amend the order.

Cross references

Policies on Hearings and Reviews

Implementation date

January 24, 1996

Appendix I - Guidelines for the assessment of
the psychological damage aspect of serious harm

These guidelines are based on research evidence examining the psychological effects of crime on victims and clinical diagnostic criteria. They are intended to assist CSC staff and NPB members in recognizing the psychological aspects of serious harm.

While these sources of information are relevant to the assessment of serious harm, they must not be used as a substitute for individual judgments. Board member's are required to exercise their own judgment and form their own opinion about whether an offence caused serious harm to the victim.

The Corrections and Conditional Release Act defines "serious harm" as "severe physical injury or severe psychological damage". The Act also requires that an opinion be formed about whether certain offences caused "serious harm" to the victim.

In consideration of the practical limitations involved in assessing the often "unseen" nature of severe psychological damage, the guidelines set out a series of steps, relevant to the level of information available on an offender's file, to assist CSC staff and Board members in formulating an opinion of serious harm.

CLINICAL DEFINITION OF SERIOUS HARM

In assessing the psychological impact of an offence, mental health professionals generally consider whether victims have symptoms of a serious psychological disorder after the criminal offence.

• the victims' subjective distress and self-reported symptoms; and


• the victims' inability to maintain a valued role in society, e.g., problems with work, school (if a child), family, and friends.

The overall level of psychological impairment is based on weighing the subjective and societal perspectives. In general, serious problems in one area are sufficient to indicate a serious mental disorder. The most common, serious psychological disorder to result from criminal victimization is Post Traumatic Stress Disorder (PTSD).

DIAGNOSTIC CRITERIA FOR PTSD

• reliving of event (intrusive memories, dreams, feeling like event is recurring)


• feeling numb; persistent avoidance of possible reminders of event; loss of interest in the future


• increased physiological arousal (sleep problems, cannot concentrate, startles easily)


• duration of the disturbance of at least one month

The difference between "mild" to "moderate" symptoms and "severe" symptoms is a matter of degree. One way of determining whether a psychological symptom is severe or not is to consider whether a person with that symptom would definitely be in need of treatment. As a reference point, the following symptoms are considered severe versus moderate by most mental health clinicians and researchers.

DISTINCTIONS BETWEEN SEVERE AND MODERATE PSYCHOLOGICAL SYMPTOMS

Other serious psychological disorders that can result from criminal victimization include depression, conduct disorder (in children), various anxiety disorders, and the exacerbation of pre-existing psychological or psychiatric problems. A frequent symptom in children of sexual victimization is inappropriate sexual behaviour.

DOCUMENTARY SOURCES FOR ASSESSING SEVERE PSYCHOLOGICAL DAMAGE

Severe psychological damage can be inferred from various sources. One strong source of evidence would be the assessment from a duly qualified mental health professional documenting that such harm had occurred. Since such assessments are rarely, if ever, available, another direct source would be victim impact statements. If these statements do not exist or provide unclear or insufficient information, severe psychological damage may in some cases be inferred from offence and victim characteristics as described in such documents as police reports and court documents outlining the facts of the offence.

STEPS TO ASSESS SEVERE PSYCHOLOGICAL DAMAGE

The following steps can also be taken to assess severe psychological damage and may be particularly useful where psychological assessments for victims are not available:

• Examine victim impact statements. For impact statements taken immediately after the crime, look for high levels of subjective distress and the victims' fear of death during the incident. Strong fears reported immediately following the incident are an indication that the victim may have suffered severe psychological damage.


• For victim impact statements taken several months after the event, look for any serious symptoms, including symptoms of PTSD, sustained subjective distress, and impairment in social and occupational functioning. These are signs that the victim may have suffered severe psychological damage.


• In addition to victim impact statements, consideration should be given to offence and victim characteristics.

The following lists identify offence and victim characteristics identified in the mental health literature as being commonly associated with psychological disorders resulting from sexual and non-sexual victimization. The presence of each of these characteristics increases the probability that a victim of a criminal offence suffered severe psychological damage. It should be noted that the research literature indicates that sexual offences are more likely to cause severe psychological damage than non-sexual offences.

FACTORS ASSOCIATED WITH SEVERE PSYCHOLOGICAL DAMAGE

• prior positive relationship or relationship of trust with offender (e.g., parent abuses child, assault by marriage partner)


• no social support for victim provided (e.g., family disbelieves child sexual abuse victim, victim isolated from friends, family, services)

ASSESSING WHETHER THE VICTIM SUFFERED SEVERE PSYCHOLOGICAL DAMAGE BASED ON OFFENCE AND VICTIM CHARACTERISTICS

The foregoing are guidelines only. Victims may be seriously harmed although few (or none) of the factors are present. As well, victims may not be seriously harmed even though many of the factors are present. The severity and duration of the factors need to be considered in making judgments about the impact of the crime. To assist in making this judgment, the following table presents various combinations of cases that have been identified in the research literature as being associated with severe psychological damage. The cases are presented in descending order of their likelihood of being associated with severe psychological damage (i.e., the ones at the top of the table are representative of cases most often associated with the incidence of severe psychological damage and the ones at the bottom depict cases that are unlikely to be associated with severe psychological damage).

LIKELIHOOD OF CASES BEING ASSOCIATED WITH SEVERE PSYCHOLOGICAL DAMAGE

• child victim, sexual intercourse with parental figure.


• adult female victim, forced sexual intercourse with significant physical injury.


• adult victim, hostage for 10 hours, physical injury, plausible death treats.


• child victim, sexual offence without penetration by parental figure or person in position of trust, duration greater than 12 months.

• child victim, sexual offence without penetration by parental figure or person in position of trust, duration of 6 months or less.


• adult female victim, sexual assault without penetration by male known to victim, threats of injury, single incident.


• adult female victim, physical assaults by intimate male, greater than 12 months duration.


• child victim, sexual assault by stranger, no overt force, 3 months duration.


• adult female victim, prior mental health problems, armed robbery.

• child victim, single incident of sexual assault by stranger, no overt force, low degree of sexual contact.


• adult female victim, single incident of physical assault (bruising) by male acquaintance.


• adult female victim, sexual assault (touching over clothes) by male in position of authority (landlord, boss), no overt force, duration of 3 months.


• elderly woman living alone, arson in apartment building, not direct target.

• exhibitionism, obscene telephone calls (adult or child victims).


• property offence, family household, no special vulnerabilities.


• adult male victim, assault by male acquaintance.