Assessing Dangerousness

Joseph Neuberger's new book "Assessing Dangerousness" will be an important addition to the book shelves of serious criminal lawyers and sentencing scholars alike. Although preventive detention has been part of the Canadian sentencing landscape since 1947, he is the first author to tackle this highly technical and specialized area in a comprehensive way. Combining his litigation experience and his acute analytical skills, Joseph has succeeded in producing a clear, thoughtful and accessible account of this complex subject.

While sentencing in Canada is premised on the principle of proportionality, preventive detention defies this rationale by employing the vague standards of future risk. The original regimes of preventive detention were heavily criticized in the 1969 Ouimet Report because they permitted prosecutors to target repeat nuisances as well as potentially dangerous offenders. The current indeterminate scheme is focused more clearly on the risk of future dangerousness. It was supplemented in 1997 with the more limited long term offender sentence which is also predicated on a showing of future risk. Any process which results in disproportionate future-looking sentencing objectives needs to be carefully scrutinized and assiduously challenged by well-prepared defence counsel. This book will go a long way in facilitating that preparation.

The Criminal Code provides an intricate process for moving from conviction for an eligible offence to the ultimate designation as a dangerous or long term offender. This book provides a roadmap through that process, explaining both the statutory requirements and how they have been judicially interpreted. But it does much more than that. Anyone who has been involved with dangerous offender applications, whether at the trial or appellate levels, or from an academic perspective, knows the increasing role that actuarial prediction plays in these processes. Mr. Neuberger devotes an entire early chapter to explaining and critiquing the various tools used by experts to make these predictions. He begins with the early generations, including Static-99, Static-2002, VRAG and SORAG, adds psychopathy assessments, and then concludes with a very current and careful discussion of the more recent innovations the Risk Matrix-2000, Stable-2007 and Accute-2007, the HCR-20, and the SVR-20. One sometimes hears from lawyers who defend dangerous offender applications that they feel disadvantaged when cross-examining experts because they cannot contend with the expert's experience in using actuarial tools. Clearly, Joseph has done his homework and has mastered the background. His commentaries will be invaluable to counsel in ensuring that expert evidence is understood within its own limitations and that it does not produce exaggerated influence.

Adding to the books currency is the discussion of the 2008 amendments with which the current Government attempted to blunt the Supreme Court's ruling in Johnson. Of course the amendments went further by introducing a novel version of "three strikes you're out" in its recidivist presumption of dangerousness. So far, there have only been a few cases which have touched on these issues. Still, this chapter provides a useful and thorough discussion.

The importance of this area of criminal sentencing should be obvious. Dangerous offender applications present the potential for indeterminate detention based on the amorphous concepts of dangerousness and future risk. Notwithstanding parole eligibility after seven years, there is very little chance of release for many, many years. There are now 441 dangerous offenders in the federal system of which only 18 are being supervised on parole. More importantly, these applications seem to be coming more frequently. In the year 2008/09, there were 35 individuals designated as dangerous offenders, the highest number of designations since the current regime began in 1978. Against this backdrop, Canadian lawyers are fortunate that Joseph Neuberger has shared his experience and insights by taking the time to write this very valuable book.

Allan Manson
Faculty of Law
Queen's University
Kingston, Ontario

April 12, 2011